02 - Negotiation Flashcards
Negotiation
Methods
Style = Delivery Strategy = Approach Tactics = Action
Style
Co-operative
Agreeable
COULD Exploit
Style
Competitive
Argumentative
COULD = Alienate; Intimidate
Strategy
TYPES
Co-operative
Collaborative
Competitive
Strategy
Co-operative
Focus = Make Agreement Statement = Settlement Importance Provide Information Action = BOTH Concessions Result = Open AND Trust Danger = Exploited; Early Concessions
Strategy
Collaborative
Focus = Fair Agreement; Common Ground Statement = Work Together Share Information Action = Problem Solving NOT Blame Result = Explore (Issues SW; Mutual Benefit; Settlement)
Strategy
Competitive
Focus = NO Agreement; Best Outcome Statement = Client Position Limited Information Action = Demands Result = Closed AND Bluff
Tactics
Negotiation Format
Start = Case Strength Avoid = Case Weakness Reopen = Concessions
Tactics
WHAT is Information
Resource
Reveal Strength
Conceal Weakness
Tactics
Opposition Questions
Client = Instructions; Interests; Needs Version = Events; Allegations; Facts; Evidence Calculations Bottom Line Authority
Tactics
Pressure Statements
Client Expectation Case Strength Authority Limit Pre-condition = Apology Ultimatum = Accept or Litigate
Effective Communication
TYPES
Body Language = Confident Mirroring = Collaboration Presentation = Arguments Language = Objective; Concise Listen Respond NEW Information
Effective Communication
Listen
Empathy = Understand; New Issues
NOT Discussed = Gaps in Evidence; Weakness
Effective Communication
NEW Information
Understand
Check = Facts; Figures
Request = Evidence
Lawyer Preparation
Considerations
Objectives Analysis Evaluation Costs Review Arguments Value of Trial Clarification Stage of Proceedings
Preparation
Objectives WHO
Client
Opponent
Client Objectives
WHAT
Legal Right = Contract; Injunction Monetary = Damages; Payment Relationship Other Objectives = Apology Costs = ADR; Litigation
Opponent Objectives
WHAT
Motivation = Interests; Needs
Shared Objectives = Agreement
Analysis
WHAT
Issues of Law
Issues of Fact
Gather
Exchange
Issues of Law
WHAT
Cause of Action
Elements
Issues of Fact
WHAT
Disputed Facts
Burden
Gather
WHAT
Information
Evidence
Witness
Expert
Exchange
WHAT
Statements
Disclosure
Disclosure
Requirements
NO Obligation
NOT Mislead
MUST = IF Litigation
Evaluation
WHAT
Evidence
Figures
Gaps = Request Information
Evidence
WHAT
Versions = Claimant; Defendant Gaps = Obtain; Admissible
Figures
WHAT
Heads of Loss
Calculation
Reduction = Mitigation; Contribution
Interest = Rate; Period
Costs Review
WHAT
Costs to Date
Costs NOT Incurred
Arguments
TYPES
Demands
Concessions
Offers
Arguments
Considerations
Client = Objective; Priority Case = Strength; Weakness Supporting = Law; Facts; Evidence
Practical Arguments
Considerations
Relationship
Financial Means
Payment Scheme
Value of Trial
Considerations
Claim Evaluation
Risk Factors
Calculations
Value of Trial
Basis of Claim Evaluation
Issues
Evidence
Value of Trial
Risk Factors
Claim Dismissed = NO Award
Reduction = Counterclaim; Mitigation; Contribution
Clarification
WHAT
Client = Instructions; Objectives Authority = Disclose; Figures; Negotiation; Settlement
Clarification
HOW
Written Record
Stages of Proceedings
WHEN
Pre-action
Proceedings Issued
Stages of Proceedings
Pre-action MUST
Consider ADR
Informal Statements = Letters
Information = Request; Exchange
Stages of Proceedings
Proceedings Issued MUST
Statement of Case
Witness Statements
Disclosure
Calculations
TYPES
BATNA = Best Outcome (Settlement OR Litigation) WATNA = Provide Opposition
Calculations
Purpose
BATNA = Best Alternative to Negotiated Agreement WATNA = Worst Alternative to Negotiated Agreement
BATNA Formula
[(a - b) x c] + (d x cr) - (e x dr)
WATNA Formula
(a x b) + c
Negotiation Process
STAGES
Agenda Opening Information Discussion Dispose of Proceedings
Agenda Stage
Topics
WHO = Lawyers; Authority; Expert WHERE = Neutral HOW = Written; Conference
Opening Stage
Topics
Order of Matters
Client Objectives
Desired Outcome = Agreement
Authority
Information
Topics = Agreed
Issues = Law; Fact; Evidence Figures = BATNA; WATNA
Discussion
Topics
Issues = Strength; Weakness Evaluation = Burden; Weight; Outcome Statement = Remedies; Reason Arguments = Demands; Offers; Concession Agreement = Client Best Interest
Dispose IF Proceedings
Options
Endorse Briefs
Consent Order
Tomlin Order
Judgement AND Court Order
Judgement
Effect
Affect Credit Score
Adverses Publicity
Dispose Proceedings
MUST Requirement
Inform Court
Settlement Reached
Agreement
MUST Check
Instructions
Issues Resolved
Client = Understands; Consent (Award; Conditions); Approval
Agreement
ADR Methods
Oral Statement
Oral Contract
Compromise Agreement
Draft Settlement
Oral Statement
TYPES
Explanation
Apology
Oral Contract
WHAT
Provisional = Written Conditions = Authority; Approval
Oral Contract
Disadvantage
NO Formal Record
Future Dispute
Compromise Agreement
WHAT
Merge = Original AND ADR Settlement Contract = NOT Litigate
Compromise Agreement
Terms (either)
Full and Final Settlement
Subject to Contract
Draft Settlement
WHAT
Memorandum of Agreement
Agreement Types
NO Proceedings
Exchange of Letters
Written Contract
Exchange of Letters
WHEN
Evidence = Agreement; Final Settlement
Exchange of Letters
Advantages
Formal Record
Summary = Issues; Settlement
Cost
Speed
Exchange of Letters
Disadvantages
NOT Complex Terms
NOT Large Sums
Written Contract
WHEN
Evidence = Agreement; Final Settlement
Required by Law
Complex Terms
Large Sums
Written Contract
Advantage
Formal Record
Detailed = Terms
Confidential
Enforceable
Endorse Briefs
Contents
Claim Dismissed
Terms
Costs
Signed = Must Client; NOT Client Approved
Endorse Briefs
Advantages
Formal Record
Summary = Issues; Settlement
Cost
Speed
Endorse Briefs
WHAT
Back Sheet Summary
Evidence = Oral Agreement
Consent Order
Contents
Heading = By Consent
Terms of Agreement
Costs
Consent Order
WHAT is Public
ANY Agreed Terms
Settlement
Payment of Costs
Consent Order
Contents
Heading = By Consent
Terms of Agreement
Costs
Consent Order
Terms of Agreement
Undertakings = Payment; Conditions
Settlement TYPE = Final OR Reservation
Next Steps = Stay; Enforcement
Breach = ADR; Penalties
Consent Order
Costs (either)
Standard Basis
Court Detailed Assessment
Consent Order
Advantage
Party Enforce = Terms; Settlement
Consent Order
Disadvantage
Court NOT Enforce = Non Litigation Issues
Public Record
Tomlin Order
Parts
Order = MUST Public Schedule = Contract; Confidential
Tomlin Order
Paragraph Contents
Terms Agreed
Liberty to Apply
Costs = Payment AND Assessment
Tomlin Order
Terms Agreed
Schedule
Proceedings Stayed
Except Carrying Out
Tomlin Order
Liberty to Apply
Compel Compliance
Carrying Out Terms
Failure = Contempt of Court
Tomlin Order
Schedule Contents
Contract
ANY Agreed Terms
Settlement
Tomlin Order
Advantage
Customise = Outside Court Powers
Confidential
Enforceable
Agreement
Contents
Terms
Settlement Amounts
Uncertainty = Void Contract
Agreement
Terms
Settlement TYPE = Final OR Reservation
Undertakings = Payment; Conditions
Next Steps = Stay; Enforcement
Breach = ADR; Penalties
Settlement
Full and Final Settlement
ALL Matters in Dispute Closed
NO Litigation
Settlement
Express Reservation
SOME Matters in Dispute Closed
Agreement
Settlement Amounts
Damages Interest Costs Payment Scheme = Date; Method Breach = Penalty
Agreement
Set Aside
NOT Good Faith NO Authority Capacity Misrepresentation Fraud Repudiation
