The Lawyer as a Negotiator: 7 Elements of Effective Negotiations PDF

MEDIATION ADVOCACY mediation.com.sg mediation.com.sg 1 4 The Lawyer as a Negotiator: The 7 Elements of Effective Negotiations mediation.com.sg mediation.com.sg Positional Bargaining  Nego...

MEDIATION ADVOCACY mediation.com.sg mediation.com.sg 1 4 The Lawyer as a Negotiator: The 7 Elements of Effective Negotiations mediation.com.sg mediation.com.sg Positional Bargaining  Negotiation strategy  Parties begin with an opening position  Parties defend their opening position and attack the other party's position  Competitive process 3 3 Interests  An interest is a motivation behind a demand made by a party to a dispute. It represents the needs and concerns of the party.  A position is a demand made by a party. It is merely one way to satisfy a perceived interest or set of interests.  E.g. Position: “I want my neighbour to stop playing his piano” Interest: “I need my rest as I’m working the early shift” 4 4 Positions Interests 5 5 Interests  Dig under positions for interests - ask “why”, “why not”.  Clarify and prioritise interests.  Capitalise on joint interests.  Help parties realise that to resolve a dispute, the other party’s interest(s) will have to be addressed. 6 6 Interests  Examples of interests: Goodwill Reputation Relationships Security Business Opportunities Recognition 7 7 Options  An option is a way to satisfy an interest. Options are the possible solutions to resolving the dispute.  Invent options guided by the parties’ interests. 8 8 Options  Separate inventing from deciding. So that one can choose from the best of many or all possible options.  Generate options through brainstorming.  Lay ground rules for inventing phase - no commitment, no attribution, no criticism, no evaluation.  Expand the “pie”. So that the smaller slice of a big ‘pie’ is even better than the larger slice of a small ‘pie’. 9 9 Options  Agreement that is reached should be among the best of many options generated and packaged together.  Make commitments only at the end of the process. 10 10 Criteria  Use objective criteria (also known as legitimacy) to evaluate an option.  Basis: parties want to be treated fairly.  Sword (to persuade someone that an option is fair) and shield (to protect against an option that is not fair).  Leads to face-saving and justifiable results (especially if negotiating party is a representative). 11 11 Criteria  Identify standards by which the parties may measure the fairness of an option What precedents exist? Is there a standard operating procedure? What is the position at law? What is the custom/tradition? Is there an industry practice? What is the market value? What is a likely outcome if the matter went to court? 12 12 Criteria  In the absence of objective criteria, identify fair procedures One cuts, other chooses. Taking turns. Drawing lots. Letting a neutral party decide. 13 13 Criteria  Ask, “Why is that fair?”  Look to objective standards and fair procedures.  In some cases, frame the issue as a search for an objective standard - ask how the issue ought to be decided. E.g. “What standards can we use to decide on fair compensation?” 14 14 Alternatives (to a Negotiated Agreement)  What can you do if there is no settlement?  Purpose - Evaluation of whether or not to accept option(s)  Options are ‘bilateral’ – involves the other party. Alternatives are ‘unilateral’ – what one can do without cooperation of the other party. 15 15 Alternatives  BATNA - Best Alternative to a Negotiated Agreement.  WATNA - Worst Alternative to a Negotiated Agreement.  MLATNA – Most Likely Alternative to a Negotiated Agreement. 16 16 Alternatives  Reality testing - Is one’s BATNA realistic? E.g. if a party says that he is “sure to win in court”, raise questions to help parties realise that that view may not be realistic.  Estimate the other party’s BATNA. To have a better appreciation of the strength of the other’s bargaining power.  Accept if: Offer ≥ BATNA In other words, if the BATNA is better than the offer, parties should walk 17 away. 17 Communication  Receiving - Listening: First and foremost to understand (not to debate or attack) for “positive” voices to help parties see the positives in the situation.  Conveying - Speak: To let parties know that they have been heard. To help parties ‘hear’ each other 18 18 Relationship  Two components to every dispute: Substantive issues and relationship issues.  Relationship issues can stand in the way of settlement of substantive issues.  “Separate people from problem.” A reminder to look at the issues objectively and not be influenced (negatively) by how you feel about the person. 19 19 Relationship  Apart from the relationship between the parties, think about the relationship between the mediator and the parties.  At the minimum, parties must have a ‘working relationship’ to jointly solve the dispute. 20 20 Relationship  How to improve the relationship Perception  Put yourself in the other’s shoes to appreciate a different perspective. Emotion  Allow venting. Communication  Build rapport through verbal / non-verbal communication 21 21 Relationship  Build at the earliest opportunity. Can even begin before mediation proper.  Be unconditionally constructive in building a good relationship. 22 22 Commitment  Timing:  When Interests understood and prioritised. Options that satisfy interests generated. Options evaluated according to objective criteria or fair procedure. Alternatives considered. 23 23 Commitment  Preferably in writing.  Draft realistic commitments.  Minimise the possibility of future disputes: Use clear and specific language. Check that all issues are dealt with. 24 24 Diagram 25 25  THANK YOU mediation.com.sg mediation.com.sg