PART A1 agreeing the price of a car we are about to buy.
Organisational situations: negotiating with colleagues, peers,
INTRODUCTION TO NEGOTIATION
supervisors and managers when agreeing timeframes for the
submission of work, agreeing strategies for the future conduct
of a transaction or case etc.
INTRODUCTION: Customer situations: This is when we negotiate (on our client’s
behalf) with counterparties in order to further our client’s aims
and objectives. It includes negotiation with our client. - eg.
Why to study negotiation? to establish mutually acceptable deadlines and fees.
Negotiation skills is fundamental to the provision of legal services.
Lawyers must negotiate to further their client’s objectives/protect their Legal negotiation falls into Customer situations. Legal negotiation goes
interests. beyond only litigious matters to many kinds of legal practice. - eg.
negotiation is used when agreeing commercial contracts, dealing with
Why to study case analysis? family or employment matters or acting for clients in regulatory
Negotiation skills and case analysis are interlinked as you must matters.
understand the facts of the case before negotiation. Case analysis
involves objective and careful consideration of the matter to be Customer situations:
negotiated so that you are able to assess your client’s aims, the issues
between the parties and the strength of your client’s position in relation * The final decision rests with the client. At all times, the client
to each issue. will be the one who decides when and on what terms the
negotiation will conclude.
Factors that may undermine an optimal outcome: * The solicitor must act in line with the SRA Code of Conduct
which sets out the standards and requirements expected by the
* Personalities SRA both ethically and professionally.
* Personal style * Customer situation negotiations are not concluded in a single
* Differing conversational styles meeting and will involve different communication techniques
* Emotions of participants (face-to-face meetings, email, telephone, video conference)
* Perceptions and preconceptions and re-assessing the matter with clients. Customer situation
* The potential for misunderstanding what could be gained/ lost negotiations are constantly evolving as more information is
* Differing interpretations of what constitutes ‘fair play’ gained from the other side and client’s objectives and the
* Time pressures. importance placed on each currency is re-evaluated.
As a negotiator, you need to be aware of the factors which may affect NEGOTIATION SKILLS, STYLE AND STRATEGY:
the negotiation process. You also need to develop techniques to deal
with and overcome them.
To become an effective negotiator, you must develop:
Develop your negotiation skills by practicing and reflecting upon the 1. your negotiation skills
success of each practice. 2. range of negotiation styles, and
3. your negotiation strategy
NEGOTIATION: Definitions:
Definition: Tom Gosselin’s book, Practical Negotiating Negotiation Skills = Any of
a range of techniques that can be used to persuade your counterparty
Oxford English Dictionary Negotiation = discussion aimed at reaching in order to achieve your Objectives/Aims. You negotiation skills will
an agreement. depend on your communication skills and the ability to persuade
others. By broadening your skills and range of negotiation techniques,
Roger Fisher’s book, Getting to Yes Negotiation = Back and forth you will develop a flexibility and an ability to cope with situations on
communication designed to reach an agreement when you and the the spot.
other side have shared and opposed interests.
Tom Gosselin, Practical Negotiating Negotiation Style = The
G. Richard Shell’s book, Bargaining for Advantage Negotiation = An behavioural approach adopted in a negotiation. Three types:
interactive communication process that may take place whenever we confrontational, passive or collaborative.
want something from someone else or another person wants
something from us. Adapt your negotiation style to suit different situations. This is
necessary to deal appropriately with the importance of the issues and
Tom Gosselin’s book, Practical Negotiating Negotiation = A process of relationship between the parties. – eg. the behaviour of your
exchange to resolve conflict and reach a mutually beneficial counterparty might dictate the negotiation style which you adopt.
agreement.
Negotiation Strategy = The action plan for the negotiation. It is
Our definition: formulated after completing all the elements of preparation and full
1. Negotiation is based on communication analysis of the matter to be negotiated. It refers to the actual approach
2. between two or more people/groups that a negotiator may employ to achieve their required outcome. It will
3. where one or more parties want to obtain/achieve something relate to the facts and circumstances of each individual matter being
4. where each party has interests or objectives which might be negotiated.
the same, or might differ from, those held or sought by the
others. Negotiation styles:
Negotiation = developing an agreed outcome where two or more
parties have competing/conflicting needs, demands and/or interests. Negotiating style is determined by:
At the end of negotiation, the parties usually reach a binding a) personality/attributes – eg. authority, humour and demeanour.
agreement. b) their desired outcome
c) how important each issue is to them; and
What negotiation is not: d) the importance of the relationship between the parties.
1. Negotiation is not ‘haggling’: not simple ‘back and forth’, ‘offer
and counteroffer’ conversation until an acceptable middle Two extremes of style:
ground is reached.
2. Negotiation is not ‘arguing’: negotiation is not about ‘winning
an argument’.
Standing firm in a Being entirely
Counterparty = The other party/parties to a negotiation. confrontational manner accommodating
Outcome(s) = The final negotiated agreement.
Interest(s) = Why the party wants a particular Objective. What is
motivating the party? Most negotiating styles result in the four outcomes listed below:
Position = What a party wants from the negotiation.
Issues = Matters that are in dispute between the parties.
Substance = the subject matter or objective of the negotiation. OUTCOME PARTY A PARTY B COMMON CHARACTERISTICS
Situations in which we negotiate: Win-Win Wins Wins Collaborative – eg. “Possibly we
could both achieve our aims and
objectives. By working together,
Tom Gosselin’s book, Practical Negotiating Situations in which we we could achieve more than we
negotiate: would achieve otherwise.”
Personal situations: the day-to-day and familial situations – eg.
Negotiation and Case Analysis – Workbook Summary| Page 1 of 27
, Win-Lose Wins Loses Competitive (Win) v Passive (Lose)
– eg. “I am in this negotiation for
myself and my client only and I do
not mind whether you suffer any
Lose-Win negative outcomes in this negotia-
Loses Wins tion. In fact, I aim to achieve my
goal at the expense of yours.”
Lose-Lose Loses Loses Passive – eg. “Even if neither
party achieves their intended
outcomes and objectives, we will
aim to secure a negotiated
agreement.”
No Collaborative/Passive – eg. “None
outcome of uscan achieve our intended
outcomes and objectives, so we
should rather walk away from the
negotiation.”
In most cases, advise client:
1. Not to close a negotiation with a ‘lose-lose’ outcome. – this is
a bad deal for both parties.
2. Not to close a negotiation with a ‘lose-win’ outcome. In this
case, your counterparty would rather achieve its aims at the
expense of yours. – this is a bad deal for your client.
3. Think about the repercussions of a ‘win-lose’ outcome. Here,
your client is achieving some or all of their outcomes even if
your counterparty does not. But if your counterparty fails to
achieve its intended outcomes, repercussions are a possibility.
Might they be less committed to the deal? Might they seek to
renege on it, or to re-open the negotiations later? Will the
counterparty seek to do business with another party in the
future?
4. The most preferable outcome is a ‘win-win’. Here, both parties
are satisfied that they have achieved the objectives of greatest
importance. In some cases, the negotiation have led to creative
resolutions enabling the parties to achieve more than their
original objectives.
Which negotiation style is appropriate?
1. Usually, this is personal preference. Some negotiators do not
want to appear to be ‘soft’ so they adopt an adversarial stance.
However, often an integrative approach brings the best
outcome.
2. Does the client have a preference? If so, go with that if
possible. You are ultimately representing your client so your
behaviour will impact on their reputation (in the eyes of the
counterparty/ the public). – eg. if representing a public body
such as the police, it might be important to maintain a
particular persona, or outward appearance, to maintain their
credibility.
3. Think about what the negotiation is about. Is there scarcity in
this situation? If so, an adversarial stance may further your
client’s interests.
4. If a negotiation is not going to plan, switch styles during the
negotiation.
Negotiation and Case Analysis – Workbook Summary| Page 2 of 27
, PART A2 Try to deal with each issue in turn. One party will open the negotiation
by setting out its stall and making an opening offer, then the other side
THE NEGOTIATION PROCESS will also set out its position. The parties then explore where there
might be give or take and where they could achieve a negotiated
The Process of Negotiation – Phases: resolution. Both will then close the discussion on that issue and move
1. Phase I – Preparation on to the next one.
2. Phase II – Bargaining
3. Phase III – Closure Issue 1: Opening → Exploring → Closing
Issue 2: Opening → Exploring → Closing
PHASE I – PREPARATION: Issue 3: Opening → Exploring → Closing
Preparation is key. Lack of preparation can undermine the negotiation However, negotiations are normally not this linear and issues are not
process and might result in a less than ideal conclusion. The amount of negotiated one by one. The entire deal/case/transaction or different
preparation needed will depend on the circumstances of each case. aspects of it are likely to be interdependent and so these might be
negotiated concurrently. On this basis, a concession on one issue might
What might impact your preparation: facilitate an advance on another.
* Time: Your client/the counterparty might set a tight deadline
* Money: the limited resources of your client and client not being A note on currencies:
able to finance a protracted negotiation. Currency = Something of value the parties can offer each other in the
* Information: Your client will tell you their objectives/ negotiation. You may concede on currencies that are not important to
motivations so this is easy to ascertain. It is not so easy to see you but are important to your counterparty in order to successfully
the objectives/motivations of your counterparty. Some info obtain/retain currencies that are important to you. Ensure that you
might be in the public domain. You may be able to make understand the importance of each of the issues and the connected
assumptions but these may/may not be correct. currencies to both your client and your counterparty.
* Your counterparty: You need information for your preparation
to be effective. Your counterparty might make this difficult by The Negotiation Environment:
retaining information or feeding misinformation.
Negotiation Environment = The format/venue in which the negotiation
Do a cost-benefit analysis to decide on your level of preparation: How takes place.
much time you have to prepare, and what will such preparation cost in
relation to the benefit it might provide? Extensive preparation is Whichever environment the negotiation is taking place in, have all of
usually a luxury in practice. your materials/paperwork to hand and ensure that you are fully
conversant with your client’s instructions.
Preparation steps:
1. If the negotiation is taking place face to face:
1. How will the negotiation be conducted? Face-to-face meeting, a. Arriving: always arrive early. Trying to play catch-up
telephone, or email? The negotiation could also rely on when late will detract from the content of the
different communication methods throughout. Consider the negotiation and will likely ruin your strategy. If your
pros and cons of each medium before deciding on which one to client is attending, ask them to also arrive early. If
use. possible, have a pre-meeting with client to rehearse key
points and consolidate your preparation.
2. If face-to-face meeting – Where will it take place? In your
offices, at your counterparty’s offices or in a neutral location? In b. The set-up of the room: The setup of the room might
most cases, both psychologically and practically, a negotiation influence the participants psychologically.
conducted in your offices will provide you with an advantage.
However, the appropriateness of a negotiation conducted in
your offices versus a neutral location will depend on the matter • The ‘power point’ of the room: the person
to be negotiated and the parties. sitting at the ‘head’ of the negotiating table will
be in a powerful position. If that person also
acts as if they are in control of the meeting (e.g.
3. Who will be attending for your client and the counterparty? by calling everyone to order/steering everyone
This will affect the answer to the above two questions and also through an agenda) then this can establish
the negotiation techniques and strategy you will employ. authority and can be of instant benefit.
However, this shows a more adversarial stance
4. When? and can lead to parties becoming entrenched in
their positions.
How soon the negotiation is to How long the negotiation is set to • Parties seated at 90 degrees to each other:
take place. last. more collaborative and aids discussion.
This will affect the amount of time Is it anticipated that the negotiation • Parties seated at 45 degrees to each other:
you have to prepare and will give will be concluded within one day, or deflects a confrontation.
you an indication of any external will it take longer? However long it
influences driving your client and will likely take, set realistic time
counterparty to negotiate (eg. the frames. If the negotiation is a • Sitting side by side: best for co-operation and
approach of an accounting year- complex, multi-issue, multi-party working together so employ this at the
end). negotiation, you may also set time conclusion of a negotiation when drawing up
frames within time frames. the heads of terms of a contract or settlement
agreement. Do not adopt this during the
5. Why to negotiate? What is your client’s ultimate objective? bargaining phase.
If you are sitting in near to your counterparty, ensure
PHASE II – BARGAINING: that your private notes are covered. Do this in a subtle
way; covering your notes in an obvious way might
Bargaining phase = is negotiation ‘proper’ where the parties set out foster mistrust. Do not sit in a seat which has an
their objectives, issues, offers and concessions, responding to the other obscured view.
party’s proposals and formulating counter proposals.
2. If negotiation is taking place on phone/video conference:
Effective planning can assist you in developing a strategy for many
different eventualities. However, bargaining will not always go to plan a. Technology: Make sure your technology works – eg. try
and your counterparty might behave in an unexpected way. Fresh to access your teleconference facility early. Delays have
information or perspectives might come to light which will require you a psychological impact on the negotiation and will put
to ‘think on your feet’ and adopt a new strategy. you at a disadvantage.
Deal with each issue: b. Location and timing: If you work in an open plan office,
agree an estimated time for the negotiation and book a
The negotiation might be composed of many different issues – a private room with conferencing facilities. During video
contract contains several clauses. On this basis, you must negotiate conferencing: make sure that you see yourself on the
individual elements of the deal/case/transaction before the negotiation screen so you can monitor your non-verbal signals.
is concluded.
3. If negotiation is taking place by email/correspondence:
Negotiation and Case Analysis – Workbook Summary| Page 3 of 27
