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ADR > 02 - Negotiation > Flashcards

02 - Negotiation Flashcards

1
Q

Negotiation

Methods

A 
Style = Delivery
Strategy = Approach
Tactics = Action
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2
Q

Style

Co-operative

A

Agreeable

COULD Exploit

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3
Q

Style

Competitive

A

Argumentative

COULD = Alienate; Intimidate

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4
Q

Strategy

TYPES

A

Co-operative
Collaborative
Competitive

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5
Q

Strategy

Co-operative

A 
Focus = Make Agreement
Statement = Settlement Importance
Provide Information
Action = BOTH Concessions
Result = Open AND Trust
Danger = Exploited; Early Concessions
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6
Q

Strategy

Collaborative

A 
Focus = Fair Agreement; Common Ground
Statement = Work Together
Share Information
Action = Problem Solving NOT Blame
Result = Explore (Issues SW; Mutual Benefit; Settlement)
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7
Q

Strategy

Competitive

A 
Focus = NO Agreement; Best Outcome
Statement = Client Position
Limited Information
Action = Demands
Result = Closed AND Bluff
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8
Q

Tactics

Negotiation Format

A 
Start = Case Strength
Avoid = Case Weakness
Reopen = Concessions
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9
Q

Tactics

WHAT is Information

A

Resource
Reveal Strength
Conceal Weakness

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10
Q

Tactics

Opposition Questions

A 
Client = Instructions; Interests; Needs
Version = Events; Allegations; Facts; Evidence
Calculations
Bottom Line
Authority
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11
Q

Tactics

Pressure Statements

A 
Client Expectation
Case Strength
Authority Limit
Pre-condition = Apology
Ultimatum = Accept or Litigate
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12
Q

Effective Communication

TYPES

A 
Body Language = Confident
Mirroring = Collaboration
Presentation = Arguments
Language = Objective; Concise
Listen
Respond NEW Information
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13
Q

Effective Communication

Listen

A

Empathy = Understand; New Issues

NOT Discussed = Gaps in Evidence; Weakness

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14
Q

Effective Communication

NEW Information

A

Understand
Check = Facts; Figures
Request = Evidence

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15
Q

Lawyer Preparation

Considerations

A 
Objectives
Analysis
Evaluation
Costs Review
Arguments
Value of Trial
Clarification
Stage of Proceedings
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16
Q

Preparation

Objectives WHO

A

Client

Opponent

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17
Q

Client Objectives

WHAT

A 
Legal Right = Contract; Injunction
Monetary = Damages; Payment
Relationship
Other Objectives = Apology
Costs = ADR; Litigation
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18
Q

Opponent Objectives

WHAT

A

Motivation = Interests; Needs

Shared Objectives = Agreement

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19
Q

Analysis

WHAT

A

Issues of Law
Issues of Fact
Gather
Exchange

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20
Q

Issues of Law

WHAT

A

Cause of Action

Elements

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21
Q

Issues of Fact

WHAT

A

Disputed Facts

Burden

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22
Q

Gather

WHAT

A

Information
Evidence
Witness
Expert

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23
Q

Exchange

WHAT

A

Statements

Disclosure

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24
Q

Disclosure

Requirements

A

NO Obligation
NOT Mislead
MUST = IF Litigation

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25
Q

Evaluation

WHAT

A

Evidence
Figures
Gaps = Request Information

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26
Q

Evidence

WHAT

A 
Versions = Claimant; Defendant
Gaps = Obtain; Admissible
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27
Q

Figures

WHAT

A

Heads of Loss
Calculation
Reduction = Mitigation; Contribution
Interest = Rate; Period

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28
Q

Costs Review

WHAT

A

Costs to Date

Costs NOT Incurred

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29
Q

Arguments

TYPES

A

Demands
Concessions
Offers

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30
Q

Arguments

Considerations

A 
Client = Objective; Priority
Case = Strength; Weakness
Supporting = Law; Facts; Evidence
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31
Q

Practical Arguments

Considerations

A

Relationship
Financial Means
Payment Scheme

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32
Q

Value of Trial

Considerations

A

Claim Evaluation
Risk Factors
Calculations

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33
Q

Value of Trial

Basis of Claim Evaluation

A

Issues

Evidence

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34
Q

Value of Trial

Risk Factors

A

Claim Dismissed = NO Award

Reduction = Counterclaim; Mitigation; Contribution

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35
Q

Clarification

WHAT

A 
Client = Instructions; Objectives
Authority = Disclose; Figures; Negotiation; Settlement
36
Q

Clarification

HOW

A

Written Record

37
Q

Stages of Proceedings

WHEN

A

Pre-action

Proceedings Issued

38
Q

Stages of Proceedings

Pre-action MUST

A

Consider ADR
Informal Statements = Letters
Information = Request; Exchange

39
Q

Stages of Proceedings

Proceedings Issued MUST

A

Statement of Case
Witness Statements
Disclosure

40
Q

Calculations

TYPES

A 
BATNA = Best Outcome (Settlement OR Litigation)
WATNA = Provide Opposition
41
Q

Calculations

Purpose

A 
BATNA = Best Alternative to Negotiated Agreement
WATNA = Worst Alternative to Negotiated Agreement
42
Q

BATNA Formula

A

[(a - b) x c] + (d x cr) - (e x dr)

43
Q

WATNA Formula

A

(a x b) + c

44
Q

Negotiation Process

STAGES

A 
Agenda
Opening
Information
Discussion
Dispose of Proceedings
45
Q

Agenda Stage

Topics

A 
WHO = Lawyers; Authority; Expert
WHERE = Neutral
HOW = Written; Conference
46
Q

Opening Stage

Topics

A

Order of Matters
Client Objectives
Desired Outcome = Agreement
Authority

47
Q

Information

Topics = Agreed

A 
Issues = Law; Fact; Evidence
Figures = BATNA; WATNA
48
Q

Discussion

Topics

A 
Issues = Strength; Weakness
Evaluation = Burden; Weight; Outcome
Statement = Remedies; Reason
Arguments = Demands; Offers; Concession
Agreement = Client Best Interest
49
Q

Dispose IF Proceedings

Options

A

Endorse Briefs
Consent Order
Tomlin Order
Judgement AND Court Order

50
Q

Judgement

Effect

A

Affect Credit Score

Adverses Publicity

51
Q

Dispose Proceedings

MUST Requirement

A

Inform Court

Settlement Reached

52
Q

Agreement

MUST Check

A

Instructions
Issues Resolved
Client = Understands; Consent (Award; Conditions); Approval

53
Q

Agreement

ADR Methods

A

Oral Statement
Oral Contract
Compromise Agreement
Draft Settlement

54
Q

Oral Statement

TYPES

A

Explanation

Apology

55
Q

Oral Contract

WHAT

A 
Provisional = Written
Conditions = Authority; Approval
56
Q

Oral Contract

Disadvantage

A

NO Formal Record

Future Dispute

57
Q

Compromise Agreement

WHAT

A 
Merge = Original AND ADR Settlement
Contract = NOT Litigate
58
Q

Compromise Agreement

Terms (either)

A

Full and Final Settlement

Subject to Contract

59
Q

Draft Settlement

WHAT

A

Memorandum of Agreement

60
Q

Agreement Types

NO Proceedings

A

Exchange of Letters

Written Contract

61
Q

Exchange of Letters

WHEN

A

Evidence = Agreement; Final Settlement

62
Q

Exchange of Letters

Advantages

A

Formal Record
Summary = Issues; Settlement
Cost
Speed

63
Q

Exchange of Letters

Disadvantages

A

NOT Complex Terms

NOT Large Sums

64
Q

Written Contract

WHEN

A

Evidence = Agreement; Final Settlement
Required by Law
Complex Terms
Large Sums

66
Q

Written Contract

Advantage

A

Formal Record
Detailed = Terms
Confidential
Enforceable

67
Q

Endorse Briefs

Contents

A

Claim Dismissed
Terms
Costs
Signed = Must Client; NOT Client Approved

68
Q

Endorse Briefs

Advantages

A

Formal Record
Summary = Issues; Settlement
Cost
Speed

69
Q

Endorse Briefs

WHAT

A

Back Sheet Summary

Evidence = Oral Agreement

70
Q

Consent Order

Contents

A

Heading = By Consent
Terms of Agreement
Costs

71
Q

Consent Order

WHAT is Public

A

ANY Agreed Terms
Settlement
Payment of Costs

72
Q

Consent Order

Contents

A

Heading = By Consent
Terms of Agreement
Costs

73
Q

Consent Order

Terms of Agreement

A

Undertakings = Payment; Conditions
Settlement TYPE = Final OR Reservation
Next Steps = Stay; Enforcement
Breach = ADR; Penalties

74
Q

Consent Order

Costs (either)

A

Standard Basis

Court Detailed Assessment

75
Q

Consent Order

Advantage

A

Party Enforce = Terms; Settlement

76
Q

Consent Order

Disadvantage

A

Court NOT Enforce = Non Litigation Issues

Public Record

77
Q

Tomlin Order

Parts

A 
Order = MUST Public
Schedule = Contract; Confidential
78
Q

Tomlin Order

Paragraph Contents

A

Terms Agreed
Liberty to Apply
Costs = Payment AND Assessment

79
Q

Tomlin Order

Terms Agreed

A

Schedule
Proceedings Stayed
Except Carrying Out

80
Q

Tomlin Order

Liberty to Apply

A

Compel Compliance
Carrying Out Terms
Failure = Contempt of Court

81
Q

Tomlin Order

Schedule Contents

A

Contract
ANY Agreed Terms
Settlement

82
Q

Tomlin Order

Advantage

A

Customise = Outside Court Powers
Confidential
Enforceable

83
Q

Agreement

Contents

A

Terms
Settlement Amounts
Uncertainty = Void Contract

84
Q

Agreement

Terms

A

Settlement TYPE = Final OR Reservation
Undertakings = Payment; Conditions
Next Steps = Stay; Enforcement
Breach = ADR; Penalties

85
Q

Settlement

Full and Final Settlement

A

ALL Matters in Dispute Closed

NO Litigation

86
Q

Settlement

Express Reservation

A

SOME Matters in Dispute Closed

87
Q

Agreement

Settlement Amounts

A 
Damages
Interest
Costs
Payment Scheme = Date; Method
Breach = Penalty
87
Q

Agreement

Set Aside

A 
NOT Good Faith
NO Authority
Capacity
Misrepresentation
Fraud
Repudiation

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