Negotiation

Question 1

Where do lawyers spend most of their time

Answer 1

In various negotiations (both litigation & transactional contexts)

Question 2

What is a negotiation?

Answer 2

Persuasive communication with the goal to get the other party to agree on terms as favorable to your client as possible (nonbindingm usually informal)

Question 3

Interests of the parties

Answer 3

-Interests are needs, desires, concerns, fears, the things that a client cares about or wants
-Interest underlie a client’s position

Question 4

Rights of the parties

Answer 4

-Rights are independent standards that demonstrate the legitimacy of fairness of a parties’ position
-Not just legal rules (contracts, standard of behavior, social constructs) (include external, independent standards that might compel parties)

Question 5

Power of the parties

Answer 5

-Power is the ability to coerce someone to do something they wouldn’t otherwise do
-Power can be coercion without resorting to enforcement of legal rights

Question 6

Approaches to negotiation

Answer 6

-Adversarial approach: negotiation based on the distribution of limited resources
-Problem solving approach: negotiation based on the integration of the resources each side brings to the table so that each side is better off after negotiations

Question 7

Adversarial approach

Answer 7

-Each person takes the approach that they have an entitlement to something in the negotiation
-Zero-sum way of think & negotiating with the other side
-Opening position: a position which states what the party is willing to accept to resolve the negotiation
-Bottom line: the position at which the party will walk away from the negotiation
-The negotiation focuses on the legal rights & powers of the parties

Question 8

Problem solving approach

Answer 8

-Involves solution generation & solution evaluation approaches
-Problem solving negotiations identify a BATNA (best alternative to a negotiated agreement)

Question 9

BATNA

Answer 9

-This is the standard against which offers will be measured against
-BATNA: the best thing that the negotiator would be able to do if the negotiation fails & an agreement isn’t reached
-If the BATNA is a better alternative than any possible deal with the other party, then the party will/should leave the bargaining table
-Usually trial
-Only way to determine the strength/weakness of case

Question 10

Roles of a lawyer in negotiation

Answer 10

-Evaluator (evaluate strengths & weaknesses)
-Advisor (inform the client of whether you think this is fair agreement or not)
-Negotiator (lawyer is often the only one talking)
-Drafter (after negotiation)

Question 11

Ethical Considerations - Model Rule 1.2(a)

Answer 11

…A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter…
-Clients can tell you what they want & to not accept anything lower
-Lawyer can take settlement action
-Abide by client’s decision whether to settle or not

Question 12

Ethical Considerations - Model Rule 4.1

Answer 12

(a) Lawyers can’t make false material, factual or legal representations during negotiations. However, puffery is acceptable in some contexts during negotiation

Question 13

Types of Interests

Answer 13

-Financial
-Performance
-Psychological
-Reputational
-Relationship
-Liberty
-Basic human needs

Question 14

How do you identify the relevant interests

Answer 14

-Ask open ended questions
-Ask what the desired outcome is & why this is important
-Continue to inquire
-Being non-judgmental is helpful to obtain the answers that your clients may be embarrassed to share or that are sensitive in nature
-Prioritize your client’s interests

Question 15

Assess the parties’ rights

Answer 15

-We negotiate in the shadow of the law (not only consideration but it’s important)
-Need to know the law, available remedies, research the claims & defenses (affirmative defenses too), understand likely outcome at trial, understand facts available to establish prima facie case, consider if facts are credible or not (weigh credibility)

Question 16

Why is BATNA important

Answer 16

-The ruler against which we set an agreement to settle or not
-Independent ruler to make determination for whether it’s better for client to enter agreement or decide alternative without resorting to the agreement of other side

Question 17

BATNA steps

Answer 17

-Consider both parties’ interests, rights, power
-Solution generation phase
-Based on the interests assessment, consider the alternatives that your client can undertake themselves without the other party agreeing to the same
-From the rights assessment, identify what rights the client can assert before a court, agency, or arbitrator
-From the powers assessment, consider alternative ways that the client can wield power to coerce the other side into meeting their interests
-Weigh pros & cons of each decision
-After identifying possible alternatives, pick out BATNAs

Question 18

Determining a plan: adversarial approach

Answer 18

-Preparation, determine: the opening offer (always start higher than you want to end up), client’s bottom line, likely target where parties will probably agree, concession points
-Try to determine the other side’s approach as well
-Based on facts that have arisen out of the came
-These figures are based on facts that have arisen in the case

Question 19

Determining a plan: problem solving approach

Answer 19

-This integrative, solution-based
-Brainstorm the sources of value to each party, including, but also beyond the most obvious factors
-Preparation, consider: the differences between the parties (finance, talents at issue, physical space, reputation, relationships, time), non-competitive similarities between the parties
-Expanding the existing resources: think about other interests of important to the client

Question 20

Planning the agenda

Answer 20

-Consider the various issues & the sequence in which you wish to address the same
-Don’t want to save major issue till the end (burnout, time restraint, etc.); important factor should be ranked higher in agenda
-When there are many issues and/or complex facets, you want to make sure that you have them all

Question 21

Making initial offers

Answer 21

The first offer is an anchoring point that the parties will come back to (initial request, tends to have very high value, influences rest of negotiation significantly)
-Consideration to make on if you want to give it (whether you have sufficient info, confidence in position, tone you wish to strike)

Question 22

How much to offer first in an negotiation

Answer 22

-the goal is to be commanding & realistic
-Best to begin with an aggressive, but not absurd figure to set the tone
-Start lower than you wish to agree on (give room to make concessions later on)

Question 23

Boulwarism

Answer 23

-Avoid this
-Only making one offer, which you believe is reasonable & just, telling the other side that you will settle on no other timers
-Use only if: you know you offer is better than other side’s BATNA, can convince the other side of that, & can convince the other side you won’t make any other concessions

Question 24

Credibility

Answer 24

The quality of being trusted, believe in, convincing, or believable

Question 25

What leads to greater credibility in a negotiation setting?

Answer 25

-Specificity (being specific in requests & reasons for those requests, clear) -Justification (should be tied to some reason that makes sense, reasonable basis gives it legitimacy, stronger the logic, the more credible the justification) -Consequence (talk about consequences that will ensue if other side rejects request/demand, don't want empty threats) -Never raise initial offer after the fact

Question 26

One exception to raising initial offer after the fact

Answer 26

Learn of new info that significantly changes client’s position

Question 27

Betting against yourself & concessions

Answer 27

-Never do this -When you concede, the other side doesn't make any concessions, & you concede again -Shows weakness in your position -Don’t just concede just to have a good relationship with opposing counsel or not be deemed as obstinate -Want to be fair & reasonable & negotiating in good faith, but doesn’t mean conceding just to be nice -Both sides should be making concessions

Question 28

How to make an offer - problem solving approach

Answer 28

1. Establish explicitly that you want to take a problem solving approach 2. Identify the interests both of your client & the other side 3. Present a solution or range of solutions that addresses these interests; & 4. Open the door to joint development of other options (show you aren't married to these options by providing several)

Question 29

If an opponent counters with an adversarial based response, do:

Answer 29

-Ask why or why not -Ask what if -Ask for their advice -Ask what makes that fair -If none of the questions work, switch to adversarial

Question 30

When in problem solving approach, try to:

Answer 30

-Stay focused on parties' interests -Engage in brainstorming -Engage in incorporation -Engage in logrolling (making concession on issues that you don't value as strongly as your adversarial) -Help other side to save face (reputational or emotional issues)

Question 31

Information bargaining

Answer 31

-This involves gathering, concealing, & communicating select information within the negotiation -Negotiations are good, even if no movement of settlement, because exchanging information is important in itself -Tactics for obtaining info from other side: ask broad questions, actively listen, ask probing question, use silence

Question 32

Concealing info

Answer 32

-Within the boundaries of the law, there are ways that attorneys conceal information -how to do this ethically: under answer a question, answer the question with a question, answer by giving the info you want to provide, ignore the question & shift topics, explain why you won't answer that question

Question 33

Arguing about rights

Answer 33

-Develop a detailed & organized argument (spell out analysis) -Engage in multidimensional reasoning (work in shadow of the law but use other justifications ) -Design a balanced argument (sometimes beneficial to recognize weakness in your position) -Present the facts persuasively (let them see facts as your side does) -Ability to persist in the face of rejection (offer new evidence or perspective, understand counterparty's sticking points, figure out how to move past it) -Use unusual or unexpected arguments (catch other side off guard)

Question 34

Threats

Answer 34

-Don't make empty threats (credible when they have significant effect) -Make threats in ways that are effective & less likely to provoke in unhelpful ways -Responding to threats (have other side give justification for threat, reason through threat, how is it fair to my client if you do this, do nothing/ignore threat, counterthreats)

Question 35

Anger

Answer 35

-Okay to have display of anger when used intentionally to prove a point or to shock someone (when arguments are so out of reasonableness) -Not okay when it's a reactive, emotional response

Question 36

Difficult adversaries

Answer 36

-Reframe or restate their position that emphasizes their preposterous of their approach S-ay the court won’t take favorable view on their position -Say let’s call the judge up & see what they thinks (has to be extreme enough, use rarely) -Sometimes appropriate to meet fire with fire if dealing with bullying attorney -Don't submit to bullying attorneys - don’t want to coward -Imperative to speak up - you’re representing your client

Question 37

Agreement

Answer 37

-Review the agreed-to in principle terms after you come to agreement -The agreement will then be memorialized in writing asap