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Negotiation > Negotiation > Flashcards

Negotiation Flashcards

1
Q

What is a Micro-BATNA?

A

A Micro-BATNA is the best alternative to no agreement for THIS meeting

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2
Q

What three questions do you need to ask when considering a new tactic?

A

Does it work (why / how)?
What are the risks of using it?
Is it ethical?

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3
Q

How does Mnookin define empathy?

A

Empathy is demonstrating and accurate, non-judgmental understanding of TOS and their interests / perspective without necessarily agreeing with it

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4
Q

How does Mnookin define assertiveness?

A

Advocating for your own interests and perspective

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5
Q

What can you do if you suspect TOS in engaging in misleading conduct?

A

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.

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6
Q

What can you do in response to a stone wall?

A

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.

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7
Q

What is a without prejudice negotiation, and what is its purpose?

A

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.

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8
Q

What is the overriding duty of a practitioner?

A

The overriding duty of a practitioner is to the court

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9
Q

According to Ury, what should you do if an opponent attacks you personally?

A

Reframe it as a compliment and / or an attack on the problem

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10
Q

According to Ury, is failing to involve the opponent in the solution an obstacle to agreement?

A

Yes

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11
Q

According to Williams, how should negotiators maximise effectiveness?

A

Use the negotiating method that best suits your personality

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12
Q

Do plaintiffs or defendants tend to be more risk averse in litigation?

A

Plaintiffs

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13
Q

According to Williams, what are good reasons for litigating a case instead of settling it?

A
  1. If the case is frivolous.
  2. If your client seeks -their day in court-.
  3. The law is unclear and your client seeks a definitive ruling
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14
Q

According to Ury, natural reactions to avoid include:

A
  1. Giving in to TOSs demands
  2. Giving up and walking away from the negotiation
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15
Q

According to Ury, what is a stone wall?

A

A take it or leave it ultimatum

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16
Q

What is fearless advocacy?

A

A type of advocacy which requires the lawyer to focus exclusively on the needs of their own client

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17
Q

What is being conditionally open?

A

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)

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18
Q

According to Craver, deceiving ones opponent and being dishonest are two different things

A

True

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19
Q

What is the largest reason for client dissatisfaction with their lawyers?

A

Poor communication between the lawyer and the client

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20
Q

What are valid bases for estimating the likelihood of success at trial?

A
  1. Experience and personal judgment
  2. Statistical evidence
  3. Previous court judgments of similar cases
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21
Q

According to Williams, why does the competitive strategy work?

A

It causes opponents to lose confidence in themselves and what they are able to achieve for their clients

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22
Q

What should you do if TOS makes a final offer outside your LA and refuses to budge?

A

Exercise your BATNA

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23
Q

What are the risks of deception?

A
  1. The deceiver is not believed
  2. The relationship suffers
  3. 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.
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24
Q

Is deception more likely through omission or comission?

A

Omission

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25
Q

Why do people prefer to tell the truth?

A

They are cognitive misers. We prefer to take the path that offers the least resistance / effort.

26
Q

When is lying more likely?

A
  1. When more value is at stake
  2. When there is more uncertainty
  3. When a negotiator feels less powerful
27
Q

What should you do when you overhear information?

A

Question the credibility of it. It could be a bluff

28
Q

What can you do if you overhear information?

A

Use it for a reasonable request test / test TOSs honesty

29
Q

What does the fruit game illustrate?

A

Information exchange makes mutual gain possible, but can also increase the risk of exploitation

30
Q

What increases bargaining strength?

A
  1. Having a good BATNA
  2. Having something TOS wants
  3. Knowing information
  4. The ability to injure (eg. strike)
  5. Being attractive / likeable
31
Q

What is the difference between a goal and a strategy?

A

A goal is what you want, whereas a strategy is how you will get it

32
Q

What were the main similarities of competitive and cooperative negotiators (Williams)

A
  1. Highly experienced
  2. Ethical, trustworthy, and honest
  3. Realistic, rational, and analytical
33
Q

What does Williams believe are the limitations of the competitive strategy?

A
  1. Increased toughness without supporting information does not increase profits
  2. Toughness increases tension and distrust, which distorts communication
  3. There is an increased chance of breakdown in communication
  4. There is potential to damage long-term relations
34
Q

What does Williams believe are the limitations of the cooperative strategy?

A

They are vulnerable to exploitation. Competitives see cooperative behaviour as a sign of a weak case

35
Q

Unexpected frustrations generate greater hostility than expected frustrations (T/F)

A

True

36
Q

Unexpected friendliness creates greater return friendliness and cooperation than expected friendliness (T/F)

A

True

37
Q

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?

A

Anchoring effect

38
Q

How can you maximise gain?

A
  1. Get something in exchange for something free
  2. Plan possible concessions in advance
39
Q

What kind of concessions do Schoenfield and Schoenfield suggest you start with, and what is their potential draw back?

A

Free concessions. However, they lose their effectiveness if TOS finds out they are free

40
Q

Why might money be left on the table?

A
  1. Information asymmetries
  2. Strategic opportunism (eg. asking for too much leading to break down in negotiation
  3. Negotiating ineffectiveness
41
Q

How can you create more value?

A
  1. Develop non-competitive similarities
  2. Use economies of scale and scope
  3. Decrease transaction costs (efficiency) and limit strategic opportunism
42
Q

Why does packaging help?

A

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

43
Q

What does Lax & Sebenius say?

A

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

44
Q

What are the advantages of assertiveness?

A
  1. Better results
  2. Better relationship
  3. Promotes self-respect
  4. Agreement is more durable
45
Q

What are Mnookins sub-optimal ways of dealing with conflict?

A
  1. Compete (focus on winning)
  2. Accommodate (focus on preserving the relationship)
  3. Avoid a situation as much as possible
46
Q

(Mnookin) What should you do before a negotiation?

A
  1. Know yourself
  2. Be genuinely curious about TOS
  3. Prepare to share your perspective
47
Q

(Mnookin) What should you do during a negotiation?

A
  1. Negotiate a reciprocal process
  2. Use the empathy loop
  3. Dont agree if you disagree
  4. Check on last time
  5. Explain your story
  6. Ensure TOS understands your story
  7. If necessary, change the game
48
Q

What is a Calderbank offer, and what is its legal effect?

A

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

49
Q

What are Fisher and Urys criteria for a good bargaining technique?

A
  1. Produces a wise agreement
  2. Is efficient
  3. Improves or at least does not damage the relations between the parties
50
Q

Do Fisher and Ury think that positional bargaining is a good technique/

A

No

51
Q

What are the steps for a principled negotiation?

A
  1. Separate the people from the problem
  2. Focus in interests, not positions
  3. Invent options for mutual gain
  4. Insist on objective criteria
  5. Know / develop your BATNA (including Micro-BATNAs)
52
Q

What does Mnookin suggest we should communicate during a negotiation?

A
  1. Investigating options and trades may be good for both sides
  2. Negotiating does not require a ceasefire (Mnookin believes in measured retaliation)
  3. Discussing interests does not signal weakness
53
Q

What should you do if TOS plays hardball?

A
  1. Recognise to yourself the hard bargaining tactics
  2. Stay with problem solving yourself (reframing TOSs statements, suggest criteria for distributing value)
  3. Name the tactic to TOS. Explain that you could reciprocate, and then initiate a conversation about finding a process which works for both parties
54
Q

What should you do if your BATNA is hard to identify?

A

Evaluate your WATNA

55
Q

What are Urys five barriers to negotiating well?

A
  1. TOSs negative emotions
  2. TOSs negotiating habits
  3. TOSs skepticism about the benefits of agreement
  4. TOSs perceived power
  5. Your own reaction when faced with an obstinate opponent
56
Q

What is anchoring?

A

It is a cognitive bias that shows how people rely too heavily (or anchor) on something when making decisions

57
Q

How do you increase the likelihood of anchoring?

A
  1. First offers exert a strong anchoring effect
  2. Give the figure prominence (repeat it, write it on a whiteboard, etc.)
  3. Use it as the basis of comparisons or arguments
58
Q

How to decrease the likelihood of being influenced by TOS?

A
  1. Counter with your own anchor
  2. Guard against using TOSs numbers for comparisons
  3. Make firm predictions in advance
59
Q

What is loss aversion?

A

Loss aversion states that losses hurt more than gains help (around twice as much)

60
Q
A

Negotiation (2 decks)

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