Negotiation Process

Question 1

Where should the negotiation take place?

Answer 1

• May be face-to-face, by phone or in writing
• Exchange of letters/emails may be appropriate if there are limited issues
• Phone may be appropriate if the lawyers are instructed to settle and it won’t take long
• An appropriate location must be agreed, depending on who will attend
• Location can be used as strategy

Question 2

Who should attend?

Answer 2

• Relevant people must be included
• Additional people will increase cost and may make it more difficult to control
• May be just solicitors, barristers, teams of lawyers etc
• Clients may be present (but may undermine lawyers’ tactics)
• Experts may attend, or just be available

Question 3

How should you communicate effectively?

Answer 3

• Don’t ignore psychological factors and body language
• Control your own body language
• Try reciprocal/mirroring

Present effectively:

• Choose language and tone carefully
• Don’t rush
• Don’t speak too much
• Don’t repeat excessively
• Focus on your opponent as your audience
• Be clear and concise
• Construct arguments carefully
• Don’t present too many arguments at once
• Use legal terminology
• Use objective language
• Refer to the client’s responses rather than making things personal
• DO notice how your opponent is reacting

Respond effectively

• Make sure you understand everything
• Clarify, but don’t help your opponent
• Test and challenge what the opponent says
• Respond clearly and accurately
• If you disagree, make it clear
• Avoid reacting with surprise and undermining your case
• Don’t interrupt

Question effectively

• Can make challenges sound les confrontational

Listen effectively

• Listen also to what is not being said

Question 4

Why is a structure useful?

What are the problems that pay present themselves when yo set a structure?

Answer 4

A clear structure ensures that:

• Time is used effectively
• Everything is covered
• Topics are dealt with in a sensible order
• You have a fallback plan

Various problems may arise in implementing a structure:

• An opponent may make a very different choice
• He may interrupt you
• Unexpected information may make it difficult
• One particular issue may be more difficult than planned
• An offer may make the negotiation take an expected turn
• Try to modify rather than change your structure

Question 5

What are the options for opening a negotiation?

Answer 5

• Open by agreeing an agenda
• Open with a statement or proposal
• Start by asking some key questions
• Invite your opponent to open
• Start with items that can be agreed easily
• Start with items where your case is strong
• Make limits on authority clear
• Refer to privilege for discussion
• Deal with problems in opening

Question 6

How should you seek and give information?

Answer 6

You might wish to seek:

• Basic factual information relating to an issue
• A general explanation of how they see an element of the case
• Basic factual information relating to a remedy claimed
• Information about what evidence the other side have to support their allegation
• Information about the other side’s objectives
• Checking if the other side has information you have
• Information that may be useful in progressing the case if negotiation fails

You can respond in various different ways:

• Refuse to reply
• Deal with the matter later
• Give a partial answer/avoid answering the question directly
• Give an answer that reinforces a strength in your client’s case
• Respect client confidentiality always

Question 7

How should you make your case on the issues?

Answer 7

You don’t need to agree on the law or on what the evidence proves, just to air the merits and get concessions

• Present the merits of your case
• Address the weaknesses of your case
  
  • Be careful not to reveal something the other side doesn’t know
  • Have a response ready to each weakness
  • Or ignore/downplay the weakness
• Bring out the weaknesses of your opponent’s case
• Propose an outcome

Additions to oral argument are:

• Evidence
• Figures
• Law
• Photos
• Plans

Question 8

How should you plan for concessions?

Answer 8

It is important to:

• Have a clear and full list of the issues in the case, and the client’s objectives and priorities
• Prepare plans for concessions you should ask for and are prepared to make
• Have standards against which to compare offers, with BATNA and WATNA
• Be sufficiently familiar with the figures to be able to add VAT etc without major delay
• Get sufficient further information in the negotiation
• Explore the strengths and weaknesses of the case in order to have reasonable confidence in demands or offers

Concession plan

• Starting with issues where you have a strong case to gain concessions early
• Making early demands
• Avoiding early concessions unless they are small or provisional
• Discuss possible offers/concessions at the end of each issue
• Move on if an agreement cannot be made
• Always try to get the most for your client and give away the least

Question 9

How should you make concessions and demands?

Answer 9

Gaining concessions

• Identify the larges concession you can realistically get
• Identify all the legal, factual and evidential support for it
• State clearly what you want
• Do not be put off
• Take time to respond if a concession is made
• If there is any ambiguity, clarify
• Do not get distracted by small concessions

Making demands

• Ask for opponents to justify demands
• Make sure you can justify demands

Question 10

How should you make concessions and offers?

Answer 10

Making concessions

• Always check whether the opponent has justified the concession
• What is the lowest you can make
• What might you get in return
• Will the client accept it
• Make it clear when an offer is final

Linking concessions

• Always try to get something in return
• Tie similar concessions together to make an overall acceptable settlement
• Make concessions conditional until an acceptable overall package emerges

Making offers

• Still hope to get something in return

Question 11

Reaching a deal

Bargaining tactics

Answer 11

Reaching a deal

• Competitive – open ‘high’
• Co-operative – likely to encourage concessions
• Collaborative – explores interests and options. Settlement likely to emerge over time

Bargaining tactics

• Pre-conditions
• Extreme demands
• False issues
• Escalating demands
• ‘Take it or leave it’
• Multiple concessions
• Inducing stress
• ‘Splitting the difference’ – taking a figure halfway between what is sought and offered

Question 12

What are the best ways to make progress?

Answer 12

• If discussion is stagnant, move it along
• Keep discussion to the agenda
• Don’t jump from issue to issue
• Identify and deal with problems as they arise
• Move a repetitive party along
• Make a note of any provisional agreement
• If you can’t reach any agreement, not the point you have reached
• Try to think of creative options

Question 13

HOW SHOULD YOU DEAL WITH DIFFICULTIES?

Gaps

Getting bogged down

Reaching deadlock

Poorly prepared opponent

Very competitive opponent

Frustration and emotion

Concern about your own possible inexperience

Answer 13

Gaps

try to avoid the expenses of a further meeting based on this

Getting bogged down

• Take breaks
• Summarise progress
• Focus on the advantages of settlement
• Propose a conditional/hypothetical concession
• If there is no more constructive progress, state this and see if someone can propose a solution
• Propose an alternative way forward

Reaching deadlock

• Summarise your best reasonable offer, maybe making a Part 36 offer

Poorly prepared opponent

your job is to get the best outcome for your client, not to make up for his weaknesses

Very competitive opponent

refuse to be manipulated, stay cool, remain objective

Frustration and emotion

• Do not react
• Keep focused on your objectives
• Be conciliatory
• Encourage the opponent to explain their problem
• Try to reframe the process and alter their perception
• Show the opponent negotiation is not a power game but win-win

Concern about possible inexperience

• Don’t assume your opponent is more knowledgeable
• Focus on your preparation and your decisions
• Always take a break if you need it
• Do not show surprise

Question 14

What happens when a settlement or breakdown is reached?

Answer 14

Making an oral contract

• Never leave the negotiation until the points are finalised
• Make sure the terms are recorded

Record the outcome

• Make sure this is done correctly

Where no agreement is reached

• There may still be positive benefits of the negotiation