Negotiations 101: How to Negotiate in the 1-L competition TTU School of Law Board of Barristers September 25, 2013.

Negotiations 101: How toNegotiate in the 1-L competition

TTU School of Law Board of BarristersSeptember 25, 2013

Objectives:O To understand the nature of the

negotiation competition.O To understand the scoring criteria.

Visit www.ttubob.orgO Constitution and BylawsO Contact InformationO List of BoB MembersO Also, attend the Advanced

Negotiation Competition Final Round this Friday at 7:30 p.m. in the Lanier Auditorium.

Negotiation LogisticsO Negotiation ProblemsO Check-in, etc. O Time/Break O Self-Analysis O Critique O Advancing O Professional Attire

Negotiation Ballot O Get a copyO Read itO Use it in your strategyO Availability after the rounds

Questions about Facts O BoB cannot interpret ambiguities in the

problem for you.O Do not ask anyone except your partner

how to interpret problem, e.g., you cannot ask your mom or a professor.

O Problems are often vague for a reason.O Do not go outside the problem.O Can ask your coaching panel general

negotiation questions, but not substantive questions about the problems.

Confidentiality O Competitors must maintain

confidentiality to maintain fairness in the competition.

O Do not discuss the problem in common areas.

O Do not leave copies in your carrel.O Suspect your roommate. O A breach of confidentiality may

result in an Honor Code violation.

Grievances O Grievances are a serious matter!O Must be submitted in writing by 9:00

a.m. the day following the round or occurrence.

O Refer to the BoB Constitution for additional information.

PointsO 10 points for competingO 5 points for each time you advanceO 1 point for each prelim round won

O There will be a cash prize for both Champions and Finalists.

O $100 for each ChampionO $50 for each Finalist

PenaltiesO Withdrawal at any time AFTER 24

hours before the first Preliminary Round results in an automatic forfeiture of 15 BoB competition points or 25% of your total points, whichever is greater.

O Contact Vice-Chair Carly Castetter, carly.castetter@ttu.edu as soon as possible when a conflict arises.

Judges

You will know who your judge will be when you check in.

Let a board member know immediately if you have a “conflict” with a judge.

Read the Constitution and Bylaws for the definition of “conflict.”

Competition OverviewO Two teams (each comprised of two law students) will

negotiate with each other.O Both teams will receive some general facts for each

negotiation round.O You will receive some confidential facts for your

client. These will set out your client’s interests/goals and your authority.

O Prelim Rounds – 50 minutes; Break Rounds – 50 minutes; Self-Analysis – 10 minutes to prepare and 10 minutes (for each team) to present its self-analysis. Brief commenting session after the round.

O Prelims next week and advanced rounds the week of Oct. 7th. Final round on Oct. 10th.

Negotiations PlanningO Knowledge of the negotiation problem, in

general.O Factual knowledge, which includes knowing the

basic facts, your client’s interests, and your authority (read very carefully!).

O Knowledge of legal issue(s).O Use of agenda. (Cannot hand out any prepared

materials.)O Opening offer.O Questions at the beginning to gather information.

(Quality v. Quantity) O “Package” any negotiation issues?

Read the problem carefully!

O What does your client really want? The facts usually explain your client’s priorities.

O Pay close attention to the language. O “Mr. Smith must have an apology” vs. “Mr.

Smith would also like an apology.”O “Mr. Smith prefers to pay no more than

$50,000.” vs. “Mr. Smith refuses to pay more than $50,000 under any circumstance.”

O Watch for contingencies, e.g., “Mr. Smith will pay $50,000, but only if Mrs. Smith agrees to give him Fluffy the poodle.”

Issues to Discuss During the Negotiation

O Effective “agenda setting” can demonstrate negotiation planning.

O Do not need to jump right into the agenda.O Before setting the agenda, each side should set

the tone of the negotiation, e.g., who is your client? Positive relationship?

O “Taking the table” does not matter (talking first does not equate to effective control).

O If you set out the issues to discuss, you can ask the other side if they have any issues to add.

O No need to get into an “agenda war.”

Opening Offer & Concessions

O Figure out your authority for each issue. (Do not ask the other side, “Is that your bottom line?” And, do not misrepresent your authority.)

O Decide on a “credible” first offer that will provide you with some room to move.

O Do you want to make the first offer or do you want opposing counsel to make the first offer?

O Concessions are normally larger at the beginning of the negotiation.

O Have justifications for your offers because the other side may ask you how you can justify your offers.

O Do not “double bid.” Get the other side to make a counter-offer.

O If you do not have authority, simply tell the other side. You can always “take it back” to your client.

Flexibility in Deviating from Plans or Adapting Strategy

O Adapt to the other side’s agenda, if necessary. O How do you react to new/unforeseen

information?O How do you react to the other team’s

unexpected strategy? Example: Lump sum compensation vs. itemized compensation.

O Should you take a break? Allowed one 5-minute break that counts toward your total time.

O Saying “flexible” in a round does not equate to actually being flexible.

Outcome of SessionO Based on the negotiation and the self analysis.O Most negotiations involve multiple issues; parties do

not have to come to an agreement on all issues.O Consider the progress you make during the negotiation

(time management is important!).O When assessing outcome, you must take into account

your client’s interests and goals.O Think about how concessions contributed (or not) to

the outcome.O Do you know the actual outcome?O Summarize throughout the round and at the end of the

round to make sure that everyone is on the same page.O Who is drafting the agreement? Any issues that you

need to take back to your client? Do you need to meet again to wrap up any other issues?

TeamworkO Consider the following:O May have defined roles, but it’s the

overall teamwork that matters.O Balance between the partners.O Partners do not interrupt each other.O Do the partners back each other up?O They should not contradict each

other.

Relationship between the Negotiating Teams

O Did the team have an appropriate strategy to help the teams have a good relationship?

O Talking more does not equate to control or power. . .O Was a team member hostile, sarcastic, etc.?O Did the team ignore one of the other team

members?O Was the team overly difficult? O If the other team was hostile, sarcastic, or difficult

in general, did the team react appropriately in order to get the relationship back on track?

O Will there be a future relationship between the parties?

EthicsO Teams cannot (1) misrepresent material

facts, (2) exceed settlement authority, or (3) invent self-serving material facts.

O Also, a team should not breach their ethical obligations of non-disclosure.

O If a team does, then was the ethical violation a severe violation?

O Severe violation may result in disqualification.

Self AnalysisO Teams may sit or stand.O Teams should have some structure to the self

analysis – they must answer the two questions so it’s best for them to state the two questions.

O Balanced presentation?O Should not criticize the other team.O Should be reflective (substance should not be

canned).O Use the self analysis to help the judges

understand the round, e.g., why you started with a certain offer, why you made a big concession, etc.

Good Luck inthe Competition!