Negotiation Flashcards
What is a Micro-BATNA?
A Micro-BATNA is the best alternative to no agreement for THIS meeting
What three questions do you need to ask when considering a new tactic?
Does it work (why / how)?
What are the risks of using it?
Is it ethical?
How does Mnookin define empathy?
Empathy is demonstrating and accurate, non-judgmental understanding of TOS and their interests / perspective without necessarily agreeing with it
How does Mnookin define assertiveness?
Advocating for your own interests and perspective
What can you do if you suspect TOS in engaging in misleading conduct?
Use Fisher and Urys breakthrough strategy:
1. Do not react. Go the the balcony to regain mental balance.
2. Disarm the opponent. Help TOS to regain composure / rationality.
3. Change the game.
4. Make it easy to say yes.
5. Make it hard to say no.
What can you do in response to a stone wall?
Naming the game helps you keep the opposition in perspective. You can reinterpret the stone wall as a goal, or test it against credible information you know.
What is a without prejudice negotiation, and what is its purpose?
Details of a failed negotiation that was on a without prejudice basis cannot be introduced in court. The purpose of these negotiations is to facilitate settlement.
What is the overriding duty of a practitioner?
The overriding duty of a practitioner is to the court
According to Ury, what should you do if an opponent attacks you personally?
Reframe it as a compliment and / or an attack on the problem
According to Ury, is failing to involve the opponent in the solution an obstacle to agreement?
Yes
According to Williams, how should negotiators maximise effectiveness?
Use the negotiating method that best suits your personality
Do plaintiffs or defendants tend to be more risk averse in litigation?
Plaintiffs
According to Williams, what are good reasons for litigating a case instead of settling it?
- If the case is frivolous.
- If your client seeks -their day in court-.
- The law is unclear and your client seeks a definitive ruling
According to Ury, natural reactions to avoid include:
- Giving in to TOSs demands
- Giving up and walking away from the negotiation
According to Ury, what is a stone wall?
A take it or leave it ultimatum
What is fearless advocacy?
A type of advocacy which requires the lawyer to focus exclusively on the needs of their own client
What is being conditionally open?
A type of computer program that was:
1. Nice (didnt cheat first)
2. Provokable (punished TOS for cheating)
3. Forgiving (after punishing, returns to being nice)
4. Clear (let TOS predict your behaviour)
According to Craver, deceiving ones opponent and being dishonest are two different things
True
What is the largest reason for client dissatisfaction with their lawyers?
Poor communication between the lawyer and the client
What are valid bases for estimating the likelihood of success at trial?
- Experience and personal judgment
- Statistical evidence
- Previous court judgments of similar cases
According to Williams, why does the competitive strategy work?
It causes opponents to lose confidence in themselves and what they are able to achieve for their clients
What should you do if TOS makes a final offer outside your LA and refuses to budge?
Exercise your BATNA
What are the risks of deception?
- The deceiver is not believed
- The relationship suffers
- The deception points to a settlement that is outside TOS LA, causing the negotiation to break down, or causing you to recant your previous statement, significantly weakening your position.
Is deception more likely through omission or comission?
Omission
Why do people prefer to tell the truth?
They are cognitive misers. We prefer to take the path that offers the least resistance / effort.
When is lying more likely?
- When more value is at stake
- When there is more uncertainty
- When a negotiator feels less powerful
What should you do when you overhear information?
Question the credibility of it. It could be a bluff
What can you do if you overhear information?
Use it for a reasonable request test / test TOSs honesty
What does the fruit game illustrate?
Information exchange makes mutual gain possible, but can also increase the risk of exploitation
What increases bargaining strength?
- Having a good BATNA
- Having something TOS wants
- Knowing information
- The ability to injure (eg. strike)
- Being attractive / likeable
What is the difference between a goal and a strategy?
A goal is what you want, whereas a strategy is how you will get it
What were the main similarities of competitive and cooperative negotiators (Williams)
- Highly experienced
- Ethical, trustworthy, and honest
- Realistic, rational, and analytical
What does Williams believe are the limitations of the competitive strategy?
- Increased toughness without supporting information does not increase profits
- Toughness increases tension and distrust, which distorts communication
- There is an increased chance of breakdown in communication
- There is potential to damage long-term relations
What does Williams believe are the limitations of the cooperative strategy?
They are vulnerable to exploitation. Competitives see cooperative behaviour as a sign of a weak case
Unexpected frustrations generate greater hostility than expected frustrations (T/F)
True
Unexpected friendliness creates greater return friendliness and cooperation than expected friendliness (T/F)
True
Bargainers not sure of the value of their case use the opponents opening bit to set their own goals. What is another term for this?
Anchoring effect
How can you maximise gain?
- Get something in exchange for something free
- Plan possible concessions in advance
What kind of concessions do Schoenfield and Schoenfield suggest you start with, and what is their potential draw back?
Free concessions. However, they lose their effectiveness if TOS finds out they are free
Why might money be left on the table?
- Information asymmetries
- Strategic opportunism (eg. asking for too much leading to break down in negotiation
- Negotiating ineffectiveness
How can you create more value?
- Develop non-competitive similarities
- Use economies of scale and scope
- Decrease transaction costs (efficiency) and limit strategic opportunism
Why does packaging help?
Focusing on a single issue at a time stops you from explicitly trading different issues off against each other. It can also leadto the perception that finished terms cannot be reopened
What does Lax & Sebenius say?
Evidence suggests it is difficult to focus on both value creating and claiming at the same time. The negotiators dilemma is similar to the PDG
What are the advantages of assertiveness?
- Better results
- Better relationship
- Promotes self-respect
- Agreement is more durable
What are Mnookins sub-optimal ways of dealing with conflict?
- Compete (focus on winning)
- Accommodate (focus on preserving the relationship)
- Avoid a situation as much as possible
(Mnookin) What should you do before a negotiation?
- Know yourself
- Be genuinely curious about TOS
- Prepare to share your perspective
(Mnookin) What should you do during a negotiation?
- Negotiate a reciprocal process
- Use the empathy loop
- Dont agree if you disagree
- Check on last time
- Explain your story
- Ensure TOS understands your story
- If necessary, change the game
What is a Calderbank offer, and what is its legal effect?
The defendant can make a formal offer to settle the litigation. If TOS rejects it and does not get a better reward in court, it may mean that the offeror does not owe costs, and can potentially recover them from the plaintiff
What are Fisher and Urys criteria for a good bargaining technique?
- Produces a wise agreement
- Is efficient
- Improves or at least does not damage the relations between the parties
Do Fisher and Ury think that positional bargaining is a good technique/
No
What are the steps for a principled negotiation?
- Separate the people from the problem
- Focus in interests, not positions
- Invent options for mutual gain
- Insist on objective criteria
- Know / develop your BATNA (including Micro-BATNAs)
What does Mnookin suggest we should communicate during a negotiation?
- Investigating options and trades may be good for both sides
- Negotiating does not require a ceasefire (Mnookin believes in measured retaliation)
- Discussing interests does not signal weakness
What should you do if TOS plays hardball?
- Recognise to yourself the hard bargaining tactics
- Stay with problem solving yourself (reframing TOSs statements, suggest criteria for distributing value)
- Name the tactic to TOS. Explain that you could reciprocate, and then initiate a conversation about finding a process which works for both parties
What should you do if your BATNA is hard to identify?
Evaluate your WATNA
What are Urys five barriers to negotiating well?
- TOSs negative emotions
- TOSs negotiating habits
- TOSs skepticism about the benefits of agreement
- TOSs perceived power
- Your own reaction when faced with an obstinate opponent
What is anchoring?
It is a cognitive bias that shows how people rely too heavily (or anchor) on something when making decisions
How do you increase the likelihood of anchoring?
- First offers exert a strong anchoring effect
- Give the figure prominence (repeat it, write it on a whiteboard, etc.)
- Use it as the basis of comparisons or arguments
How to decrease the likelihood of being influenced by TOS?
- Counter with your own anchor
- Guard against using TOSs numbers for comparisons
- Make firm predictions in advance
What is loss aversion?
Loss aversion states that losses hurt more than gains help (around twice as much)
