Negotiation Flashcards by Danielle Stacey

Integrative/problem
solving/cooperative/value creator

Looks for solutions that address underlying
interests and needs (often described as “win-
win”)

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Distributive/positional/competitive/value
claimer

Tends to focus more on positions, often sees
negotiation as a zero-sum game (often
described as win-lose)

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why do parties make trades?

to arrive at a mutually beneficial solution

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low cost / high value trades

“what costs me little to provide, that you value quite highly”?

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by sharing information . . .

parties work to “increase the size of the pie” (win/win)

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What are interests?

Interests are a persons needs, desires,
concerns and fears “interests motivate
people, they are the silent movers behind the
positions.”

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Positions

A position “is something you have decided
upon. Your interests are what caused you to
so decide…A party can choose between a
number of different positions that all serve a
particular interest.

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Elements of Negotiation

influence and persuasion; resistance; conflict

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Communication is . . .

7% words
38% voice
55% body language

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resistance – reactive devaluation

a cognitive bias that occurs when a proposal is devalued if it appears to originate from an antagonist (aka. rejecting information because you don’t like the source it came from)

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to be a better negotiator…

do not make assumptions and jump to conclusions about people and situations

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ZOPA

Zone of possible agreement: the range within a negotiation where two or more parties can find common ground and reach an agreement

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Reservation point

the most you are going to pay for something or else you will walk away

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Aspiration point

the highest possible deal that you could possibly attain (what you aspire to)

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BATNA

best alternative to a negotiated agreement; your central source of power; you want to make sure that your deal is at least as good as your BATNA

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Creating value v. Claiming value

Methods of creating value in negotiation often focus on leveraging differences between the negotiating parties such as the valuations of good or services, expectations about the future, time preferences, priorities, and comfort levels with risk. But Claiming value is focused on how to divide up the pie.

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What if their first offer is horrendous?

flinch to erase the “anchor”
walk out
“where did you get that number?” (make them justify with objective standards)

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truthfulness in statement to others – “In the course of representing a client a lawyer shall not knowingly”

(a) make a false statement of material fact or law to a third
person
(b) fail to disclose a material fact to a third person when
disclosure is necessary to avoid assisting a criminal or
fraudulent act by a client, unless disclosure is prohibited by
Rule 1.6.

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Misrepresentation

-the lawyer incorporates or affirms a statement of another person that they know is false
- partially true but misleading statements or omissions that are the equivalent of affirmative false statements.

Statements not taken as material fact

Estimates of price or value placed on the subject of a transaction
a party’s intentions as to an acceptable settlement
the existence of an undisclosed principal except where nondisclosure of the
principal would constitute fraud.

core skills and abilities needed for effective “legal counseling”

 Active listening/Empathy
 Use effective questions
 Build rapport
 Let them know your expertise
 Let them know you are there to advise them and to help them achieve their goals
 Help them understand their risks, underlying interests, and short-
term and long-term goals
 Advise them on possible courses of action
 Let the client make the decisions on goals and outcomes—you, the
lawyer, will provide advice on the best tactics and strategies to achieve
those goals and outcomes
 Asking “questions for understanding”

Constructive Dialogue

1.Empathetic listening
2.Questions of genuine
curiosity

Empathetic Listening

Nonjudgmental
Gives undivided attention
Focuses on facts and feelings
Involves awareness of nonverbal
communication
Allows for silence
Requires restating and paraphrasing

What are “questions of
genuine curiosity”?

allow people to be known for: (1)Who they are, as opposed to how they feel seen as a stereotype; (2) What they truly care about, related to deep hopes or fears; (3) What in their life has shaped who they are and what they care most about; (4) What aspects of their views are more complex than one would guess form a typical “pro and
con” way of presenting their views

Aristotle 4 elements of persuasion:

Ethos: Ethics, Trust, Credibility Pathos: Emotional connection Logos: Logic Kairos: Timing

To prepare for a negotiation you need to...

Devise good questions, and anticipating the questions that will be asked of you

Conflict management styles

competing, collaborating, compromising, avoiding, accommodating

competitors

Devising good questions, and anticipating the questions that will be asked of you

Accommodators

Go along to get along; oftentimes supportive & helpful; behave in a “smoothing” way; concerned with relationships.

Collaborators

Like working together; like being creative and inventing new options; want to satisfy concerns of both sides

Compromisers

Seek a MIDDLE ground; want the solution to be fair to both sides

Avoiders

flee from or deflect conflict

Dynamic Negotiating Approach Diagnostic DYNAD

Negotiation styles are tools. To be more effective, adjust your style according to what is needed.

Five basic skills for effective negotiation

1. assertiveness 2. empathy 3. flexibility 4. social intuition 5. ethicality

Assertiveness

minimal skill: set a realistic, specific goal average skill: set this goal optimistically high with sufficient research into criteria to back this up best practices: also have mapped out framing arguments or other persuasive tools to help you sell your goals

Empathy

Minimal skill: to distinguish between the rare win-lose negotiations and those that have room for joint gain; asking questions of the other side to get info about them to help move the process along average skill: ability to find integrative potential; ask questions to uncover the counterparts interests and needs best practices: translate parties' interests into realistic integrative proposals; have a "learning conversation" to better understand the counterpart's client and the client's situation to propose solutions that respond to those needs

Flexibility

minimal skill: choosing a style based on a particular context or counterpart Average skill: shifting strategy or tactics during the negotiation to respond to your counterpart. Best Practices: careful thinking about the reputation of your counterpart, selecting skills on that basis as well as your own skill set and your client’s situation, and adapting your skills as needed based on your counterpart and information you get during the negotiation.

Social intuition

Minimal skill: have a level of cordiality Average skill: schmooze with the other side Best practices: advance research to find areas of commonality and be genuinely friendly and curious.

Ethicality

Minimal level: follow the professional rules of responsibility & not actively deceive the other side. Average level: Also view possible deceptive behavior through the lens of likely ramifications including your reputation. Best Practices: Being actually trustworthy and treating the other side fairly.

You may want to use a value claiming approach in a negotiation when:

The outcome matters more than your relationship with your negotiating counterpart.

You are representing a client in an employment discrimination case. The company is willing to negotiate a settlement. Which of the following are objective criteria that you could use to determine how much they should pay your client?

Both the salaries for employees with similar job descriptions and qualifications and what the company has paid in the past to settle similar claims.

In the Singer negotiation that you did during class, the ZOPA would:

be between $0 and $45,000

You are a new prosecutor. Your boss was recently elected as a “reforming DA” with campaign promises to “stop mass incarceration.” Your boss handed you a pile of cases and said, “Use your judgment to settle these cases. You can’t dismiss any cases without my approval, or reduce the charges without my approval. Otherwise you can exercise your discretion and settle these cases in any way you think is fair. Remember, I didn’t get elected to just sentence people to prison but I expect most of these cases to settle and to settle as quickly as possible so we aren’t wasting court time.” You walked into the courtroom and see that the public defender assigned to the court is someone you know from law school. You took a negotiation class together. From your experience, the public defender has a highly collaborating style of negotiation. Mindful of your boss’s instructions, will you:

Tell the public defender what you are offering on each of your cases and be open to making a different offer if the public defender makes a reasonable counter-offer.

A neighborhood developer wants to build a 450-unit, 4-story apartment building in a residential neighborhood. The local neighborhood association is opposed to the development due to a concern that it will bring more traffic to the neighborhood, more transient student renters (due to the nearby university) and more noise, and will decrease their property values. The developer wants to build an apartment complex large enough to justify their investment. What is the best description of the positions of the developer and the neighborhood association?

The developer wants a 450-unit building and the neighborhood association doesn’t want an apartment building built.

Recall that a neighborhood developer wants to build a 450-unit, 4-story apartment building in a residential neighborhood. The local neighborhood association is opposed to the development due to a concern that it will bring more traffic to the neighborhood, more transient student renters (due to the nearby university) and more noise, and will decrease their property values. The developer wants to build an apartment complex large enough to justify their investment. What is the best description of the interests of the developer and the neighborhood association?

The developer wants to make a profit and the neighborhood association wants their neighborhood to continue to be a peaceful, stable, family friendly neighborhood.