Negotiation

Civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear. But let us never fear

to negotiate.–President John F. Kennedy

To confer with another or others in order to come to terms or reach an agreement

Negotiation II Bargaining?

Similarities-Interviewing, Counseling & Negotiation

• Information gathering• Active listening.• Empathy • Identifying priorities of the client• Sequencing of topics• Ordering of questions• Planning startegies&techniques

Differences-Interviewing, Counseling & Negotiation

• More persuasive & critical• Negotiating with those who are familiar with

law.• To be more fairer to your client

• “Negotiation can be defined as a process in which two or more participants attempt to reach a joint decision on matters of common concern in situations where they are in actual or potential disagreement or conflict.”

-Donald G. Gifford, LEGAL NEGOTIATION: THEORY AND APPLICATION (1989).

“Negotiation is a basic means of getting what you want from others. It is a back and forth communication designed to reach an agreement when you and the other side have some interests that are shared and others that are opposed.” -Roger Fisher and William Ury, Introduction, GETTING TO YES, Second Edition (1991).

Types

• Soft:• Participants are friends.• The goal is agreement.

• Hard:• Participants are adversaries.• The goal is victory

Dealing with differences

• Avoiding• Accommodating• Competing• Cooperative/compromising• Collaborative/problem solving

Types of negotiation

• Dispute resolution vs. Transactional• Single issue vs. Multiple issue• Zero sum (competitive) vs. Integrative

(cooperative)• Impersonal vs. Personal matters • Repeat players vs. One off players• Representative vs. For oneself• Multiple party vs. Two party

Understanding

• issues• positions• interests • settlement options.

Theories of negotiation

• Game theory• Economic model of bargaining• Social psychological bargaining theories• Adversarial bargaining theory• Problem solving negotiation

Adversarial Problem solving

• Linear development of planning

• Positional arguments• Creating defending

positions like bargaining

• Rejects opponent's offers summarily &makes concessions

• Divorce cases-custody issues• Identifying needs & interests

&objectives• Brainstorming to develop solutions• Proposals forwarded-can be rejected,

accepted or capable of modification by opponents

• Why proposals are acceptable/unacceptable-needs analysis

• Makes concessions-completely addressing the parties mutual problems

• Mutual gain & greater client satisfaction

• Planning may be complex but easy for implementation

Strategy Style

• overall approach taken to achieve a good settlement

• Competitive• Cooperative• Collaborative• (principled & problem

solving)

• manner of Delivery-person’s behaviour / demeanour

• COMPETITIVE & COOPERATIVE

• competitive = victory• high opening demands, making few concessions, giving little

information• cooperative=agreement• assumption-concession on both sides, demands-reasonable,

concessions made, sharing information• collaborative• exploring underlying interests, sharing info., creative in options• problem solving -goal-fair settlement• principled – fair settlement by some external authoritative

norm

Competitive strategy -fighting approach • zero sum game-maximisation of gains• manipulating opponent to the other side• high opening demands(inflated)• Concessions/offers-few, small, unimportant ,false• Information-little, selective, inaccurate, forcing opponent to

leak out info.• Stance-offensive• Matching style-aggressive• Measuring success-how much she /he has won• No concerns on shared interests or continuance of future

relationship• Applicability -single issues, imbalance of power

Cooperative strategy- sharing approach

• To reach agreement-both sides must give-mutual compromise

• Opening proposals-reasonable level• Reciprocity of behaviour-sharing information• Unilateral concessions are made- others will follow• Conciliatory stance• Courteous and pleasant• Whether negotiation was fair-,how much did each side

compromise, was there fair treatment to parties, equal treatment in info. Sharing and concession making

• Applicability-continuing relationship

Collaborative strategy

• working together to reach settlement• full exploration of interests of both parties• open -cooperative atmosphere• PRINCIPLED-• separate person from problem• focus on interests• invent options for mutual gain• insist on objective criteria• develop a best alternative rather than a bottom line

ADVANTAGES OF COLLABORATIVE STRATEGY

• increased focus on parties needs• expansion of resources-EXPLORING OPTIONS

(not division of resources)• genuinely conflicting needs x shared ones• rational &reasoned approach to

negotiation(not by swapping concessions)

Style & strategy combinations

• Adversarial Problem -solving

• Competitive rigid positions, hard bargaining Limit consideration of needs, solutions

• Cooperative concessions & open consideration of compromise needs and solutions

Selection of negotiation module

• Goals of client(counseiling) &needs of opposing party(money /continuing relationship)

• Configuration of shared , independent & conflicting needs

• Resources available-money, personnel &time to both• Ability of parties to creatively generate additional

issues & resources• Comfort/discomfort you feel when you behave as

competitive versus cooperative bargainer• Style &strategy selected by opponent

Skills required

PARAMETERS ASSESSED

• teamwork, • concession management,• observation of ethics and • the eventual outcome.• SELF ANALYSIS

• Negotiation planning • Judging from its overall performance and apparent strategy, how well prepared for the negotiation did

this team appear to be? • Flexibility in deviating from plans or adapting strategy • How flexible did this team appear to be in adapting its strategy to the negotiation as it developed;

reacting to new information or to unforeseen moves by he opposing team? • Team Work • How effective were these negotiators in working together as a team; sharing responsibility and

providing mutual backup • Relationship between the negotiating teams • Did the way this team managed its relationship with the other team contribute to or detract from

achieving this team’s client’s best interests? • Negotiation Ethics • To what extent did this negotiating team observe or violate the ethical requirements of a professional

relationship?

• Outcome of Session • Based on both the negotiation and the self-analysis and regardless of whether agreement was

reached, to what extent did the outcome of the session serve the goals of the team’s client?

USEFUL PHRASES

• “Our client has advised us/has specified…” • • “Can we just return to the previous point…” • • “I’m afraid that is as much as we are prepare to say on

the matter…” • • “We feel it is necessary to compromise with you on this

point – it is in both our clients best interests to successfully resolve this issue.”

STARTING• Start with the premise that everything is negotiable. • Try to establish a good rapport at the outset. Introduce yourself and the party

you are representing and remember that you only get one chance to make a first impression. If necessary, set any ground rules before you get into the negotiation itself, then lay down the factual basis of the negotiation. At this stage it is best to avoid lengthy or contentious issues.

• Use your negotiation plan to set out the order in which you wish to proceed.• timeline of what you will do when• list of issues you need to raise• preferred order in which to raise them• best and worst case scenario for each issue• If the other side disagree with your agenda, you might have to negotiate the

agenda itself. This is sometimes called a ‘negotiation within a negotiation’. • the tone you employ in the ‘negotiation within a negotiation’ will carry through

to the actual negotiation itself.

DURING

• Exchanging information• When speaking to your client about their expectations,

always remember to ask not just what they want, but why they want it.

• Back up your statements with reasons. For example, you should explain why it is important to your client to achieve a specific outcome at this stage, or why you think it would be to everyone's advantage if such a position was agreed.(ORANGE STORY)

• Offer solutions • Don't make lots of ‘all or nothing’ demands.

CLOSING

• Consider bringing negotiations to a close at regular intervals. Ask yourself how much more you can realistically achieve while considering the costs of time, money and energy.

• Don't continue negotiating simply for the sake of filling the time allotted to it.

• Summarise the outcomes from each point of the agenda, emphasizing what each party has agreed and highlighting issues which require further consultation.

• Some points may still need your client's approval. Make sure you state whether you have the authority to agree those points, or whether the decision is pending your client's final say so.