tudarco-the art of negotiation skills for lawyers
TRANSCRIPT
THE ART OF NEGOTIATION SKILLS FOR LAWYERS
By Prof Handley Mpoki Mafwenga,
[Ph.D, MSc, LLM, MBA, PGDTM, ADTM, LLB, FCTA(UK)]Macro-Fiscal Policy, Advocacy & Tax Expert [Gov-URT]
MINISTRY OF ENERGY AND MINERALS (TMAA) Oil & Gas Contracting and Negotiation Workshop Organized by the Tumaini University Makumira-Dar-es-salaam College Held at Tamar Hotel in Dar-Es-Salaam on 23rd to 26th March, 2015
MEANING AND SOURCES OF NEGOTIATIONWhat is Negotiations?From the Latin expression, "negotiatus", "to carry on business"It is a dialogue intended to resolve disputes, to produce an agreement upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests.
MEANING AND SOURCES OF NEGOTIATIONAlan Fowler (1990) describes Negotiation as“ ….a process of interaction by which two or
more parties who consider they need to be jointly involved in an outcome, but who initially have different objectives, seek by the use of argument and persuasion to resolve their differences in order to achieve a mutually acceptable solution”
“An interactive communication process that can be used to get something from someone else when they are trying to do the same”
MEANING AND SOURCES OF NEGOTIATION
5 BASIC BARGAINING STYLES [Limited Possible Outcomes of Negotiation]
COMPETITIVE NEGOTIATORS• Competitive negotiators are ambitious,
arrogant, clever, tough, dominant, aggressive and attacking! They aim to get the best for their client, at the same time, also include a reward for themselves – either in a monetary gain or in the satisfaction of outdoing an opponent.
• They often make high opening demands; use threats, they are willing to stretch the facts to suit their case, stick to their positions and are often reluctant to release information about their case.
• Their main aim is to undermine the opposing party so they lose confidence in themselves, therefore, reduces the overall expectations of the case.
COOPERATIVE NEGOTIATORS• Cooperative negotiators tend to be
perceived as courteous, personable, friendly, tactful, sincere, wise, careful and facilitating
• Want to achieve the best or their client, but they also feel constrained by a standard of fairness and ethical dealing.
• They are seen as fair and reasonable and if logic tells them to do so, they will move from their established position; hence, they avoid threats, they can accurately assess the value of the case
• Seek to create a ‘trusting environment’.Their major problem is the vulnerability! where they are battling against a competitive negotiator they will often continue to be cooperative and ignore the lack of cooperation.
5 BASIC BARGAINING STYLES [LIMITED POSSIBLE OUTCOMES OF NEGOTIATION]
Lose/lose [Conflict Avoiders; neither party achieves their goals;Lose/win or win/lose [Competitor]; one party achieves their goals and the other does not [relationship with your counterpart will be damaged, perhaps irreparably]; Win/win [Problem Solvers]; the goals of both parties are met [“Trust is developed, and both parties will be willing to continue this mutually beneficial relationship.”]; and No outcome [Compromisers]; neither party wins or loses.
THE DUAL CONCERNS MODEL
Yielding
(Compromising)
Problem solving
Inaction Contending
Concern about other’s outcom
es
Concern about own outcomes
AVOIDANCE: Don’t negotiate [i.e Non-engagement Strategy]COMPETITION: I gain, ignore relationshipCOLLABORATION: I gain, you gain, enhance relationshipACCOMMODATION: I let you win, enhance relationship
MAIN ELEMENTS IN NEGOTIATION PROCESS• Skills can be acquired and developed by
careful planning, practice and reflection on the outcomes.
• There are three main elements that need to be drawn upon in the negotiation process: i) Knowledge ii) Skills; and iii) Attitudes
KNOWLEDGE: Knowledge of the setting to shape negotiation, Knowledge of the context of a specific negotiation to have effective understanding of the culture, conventions, constraints and opportunities available to negotiators, Knowledge of the subject matter; [Knowledge of: a) applicable principles, b) the context of a particular negotiation, c) the detailed subject matter involved]
SKILLS: Analytical Skills, Creativity, Communication Skills, Influencing Skills [Skills in: a) analysing the issues b) personal interaction c) communicating]
ATTITUDES: Quite often negotiators have personal needs for recognition or achievement – someone who will push to the end. Someone who is confident, determined and demanding. All negotiations should try to be collaborative as well as competitive. [Attitudes towards: a) the negotiating process b) the specifics of each negotiation c) one’s own role]
MAIN ELEMENTS IN NEGOTIATION PROCESS
ROLES OF A LAWYER IN THE NEGOTIATIONEVALUATOR: Provides Third Party’s evaluation of the situations; provides some perspectives on the problem; gives a client a reality check as the actual experience in a particular jurisdiction ADVISOR: Lawyer counsel his/her client as to the options during the negotiation process, particularly in regard to what offers to make and whether to accept an offer made by the other side
NEGOTIATOR: Lawyer is an exclusive communicator with the other party or its lawyer , and the client does no more than authorize the lawyer to act . However, a client may be an active participant in the negotiations, and the lawyer plays a role as co-negotiator or backseat advisor ; to decide the negotiator depends on the expertise of lawyer and communication skills of the clientDRAFTER: Once an agreement is reached, it usually must be reduced to writing . Even in the agreement that is reached orally as the saying goes “the devil is in the details” the agreement must be in the precision language.
ROLES OF A LAWYER IN THE NEGOTIATION
BARRIERS TO EFFECTIVE LISTENINGTrying to be helpful. This may seem to
be beneficial but can interfere with the listening as the listener may appear to trying to solve what they think is the problem rather than listening to what the speaker is actually saying.
Treating the discussion as a competition. Challenging every point the speaker makes even if you inwardly agree.
Trying to influence or impress. A person who has an agenda other than to simply understand what the speaker is thinking or feeling will not be able to pay complete attention when listening.
Knowing the answer. Thinking you already know what the speaker wants to say and impatiently cutting them off or trying to complete their sentence.
Reacting to red flag words. Words can provoke a reaction in the listener that wasn’t necessarily what the speaker intended. When that happens the listener won’t be able to hear or pay full attention to what the speaker is saying.
BARRIERS TO EFFECTIVE LISTENING
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