Preparing for Negotiation Flashcards
Why is preparation important?
- Offers control
- Need a clear list of what you want and how to get it
- Must have full familiarity with strengths and weaknesses of case
- Helps take justifiable decisions on what to offer/accept
What are the objectives of the negotiation?
Money claims
- head of loss
- future loss as well as past loss
- associated matters
Other legal rights
- Non-financial remedy
- Can be addressed without going to court?
Future relationship
- Are there existing terms?
Personal objectives
- e.g. an apology
Costs of the litigation
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- Ask the client to identify priorities – DO NOT MAKE ASSUMPTIONS
- Anticipate the opponent’s objectives and priorities
- Consider shared objectives
Benefits of engaging in ADR at:
AN EARLY STAGE
- Costs can be kept to a minimum. If you wait until later, will have already incurred costs
- If you have a strong case settling may be useful before the other side has had time to form arguments
- Early settlement carries a risk (unless issues are limited) because the lawyer has little info
- Sufficient information exchange and discussion may be necessary to gain a clearer picture
- So far only have the client’s personal account of the events
Benefits of engaging in ADR at:
PRE-ACTION PROTOCOL STAGE
- Pre-action protocols require the exchange of much info, which makes it easier to assess the strengths and weaknesses of the case
- Neither side is yet committed to a statement of case so there is no formal definition of issues. This can be an advantage in terms of flexibility but a disadvantage because there is less info about the opponent’s case
Benefits of engaging in ADR at:
THE CASE IS BEING PREPARED FOR TRIAL
Although the costs may be greater, there may be merit in having a separate meeting before the trial date
Which issues should be identified for the negotiation?
Negotiation may be for the whole case, specific application or certain issues
Negotiation may be for certain issues now, and certain issues later
Identify:
- Alleged/potential causes of action
- For each, the elements that would need to be proved in court
- Which elements are actually in dispute
- On whom the burden of proof lies
- Alleged/potential defences
- Remedies
- Legal issues with regard to each remedy
- Is there a counterclaim?
Keeping in mind the legal context
- Keep in mind the potential outcome, were the case to go to court
- Where your case has legal strength, use this
- Where your case, don’t make significant concessions
How should you deal with the facts and evidence?
The client’s view of the facts and evidence
- get the full version
- be wary of the truth
- what information and evidence supports it
- Where you don’t have evidence, identify what is most likely to be available
- Get approval of the client to use information that has not been disclosed
The opponent’s view of the facts and evidence
- Look at the facts from their perspective
- Avoid being taken by surprise – ask in advance to know their view on an issue
- Ask to see evidence that you need
Dealing with gaps and ambiguities
- You don’t need to know every fact to negotiate effectively – a judge will look at the balance of probabilities
- Focus on the most relevant information
- Deal with gaps by asking the client, or asking the other side prior to negotiation
- Where gaps remain, you need to argue to persuade your opponent:
- Which seems more plausible?
- How can the known facts be convincingly put together?
- What further evidence could each party get?
- Which side would be more likely to persuade a judge?
- Which side would have the burden of proof?
- Will their evidence be admissible and their witnesses credible?
In negotiation
- Be fully familiar
- Be ready to put the facts on each key issue clearly and confidently
- Be ready to use evidence
- You can make tactical use of information known only to you
- Prepare a list of questions to support your case and undermine your opponent’s
- Have arguments ready to deal with your gaps
- Consider your opponent’s gaps
- Is there any information you wish to keep secret in case negotiation fails?
How should you prepare to deal with figures?
£££
Steps to take when preparing figures:
- Identify all relevant issues and heads of loss
- Collect all figures
- Ensure that you can justify each figure
- Check whether there is any basis on which a figure should be reduced (mitigation, con trib)
- Consider issues relating to calculation
- Consider whether figures should be adjusted (e.g. for VAT)
- Consider which figures should have interest added (and rate and period)
- Consider issues about how and when money should be paid
- Have figures for costs to date and for the negotiation
- Consider how your opponent will see all of these issues
- Prepare a summary of figures (in a flexible way)
- Be prepared to amend your figures quickly and accurately
What are the different persuasive arguments that can be used?
Arguments based on the application of the law
- If there is a significant argument on what the relevant law is, it is more likely to go to court
- Reference the law
- Give brief references to principles
- E.g. ‘Your client does not satisfy the balance of convenience test…’
Arguments based on facts
Merit-based or moral argument
- Based on what is fair, equal etc
Practical or personal arguments
Relating to a party’s circumstances, or the practicalities of a compromise
Planning demands, offers and concessions
Plan what you will seek from the other side
- What are your client’s objectives? Which issues relate to these?
- How is your case strong in relation to key issues?
- Is your strength on the issues clear?
- What are the weaknesses of the other side’s case?
- What are the relative strengths or weaknesses? (e.g. contributory negligence)
- Identify the largest concession you can expect from the other side
- Identify fallback positions accurately
Plan how and when you will ask
- Make a demand or ask for a concession?
- Seek a concession specifically, clearly and once
- Support it with a summary of reasons
- Relate concession planning to structure planning
- Ask for a concession after dealing with the relevant issues
- Don’t make early unrealistic demands
- Obtain concessions where your case is strong first
Plan what you will offer
- Should you investigate their evidence before offering concessions
- Should you make any concessions at all
- Is there any more you might concede
- Prioritise potential concessions in order of importance
Plan how and when you will make offers
- Maybe make provisional offers that will only be part of an overall deal
- Start with an area where you can make a few unimportant concessions (collaborative)
- Start with an area where you feel you do not need to make any (competitive)
- Don’t start with an area where you need to make significant concessions
- Make sure you get relevant info before making any concessions
How can you link concessions?
- Concessions should rarely be made without getting something in return
- Say when you offer this concession you expect something in return
- Try to get a concession on something important while make one on something trivial
BATNA
- Calculate the figure that is realistically achievable in damages if the case goes to trial
- For each head of loss
- Take into account how likely the case is to succeed at trial
- Take into account the further costs likely to be incurred to obtain the damages if the case were to go to trial
- Usually, 20% of costs will be irrecoverable
e.g. if chance of success is 75%, reduce total potential damages by 25%. Then subtract costs that are not likely to be recoverable
WATNA
There is a risk that the client will get nothing and then also have to pay the other side’s costs
Clarifying your instructions and authority
- Do you have instructions to negotiate?
- Does this relate to all issues?
- Authority relates to what you’re authorised to accept on client’s behalf
