Have you recently signed up for your law society’s negotiation tournament? If you’re feeling a bit unsure about how to prepare or how to get the other side to agree to your client’s proposals, here are some tips for your first negotiation competition…
When you sign up
A good place to start is watching a negotiation competition and looking over past negotiation problems to get a feel for how these problems work. You should also familiarise yourself with the negotiation competition rules, including time limits and the number of breaks permitted.
Planning your approach
Read over your common facts and confidential facts several times and highlight any issues that jump out at you, then discuss these with your negotiation partner.
Make a list of both parties’ concerns and list them in order of importance. Ask yourself what you would be willing to concede first (i.e. what is of least importance), and what you will try not to concede at all (i.e. what is of most importance to your client).
Then consider possible agreements that both sides would be willing to make in relation to each of those issues. Be creative in coming up with a range of possible solutions – an apology or an agreement to keep something out of court or the media can be just as valuable to the other side as money. In some scenarios the parties could even find a way to share disputed property.
Finally, decide what would be the best outcome for your client (i.e. your ultimate goal), and the ‘worst’ outcome for your client, (i.e. the minimum outcome at which you will settle). These limits will act as your boundary lines as you work your way through the negotiation.
In the negotiation
Negotiations are a formal business scenario, so your manner needs to match. The minute your negotiation starts you are a legal professional: introduce yourself, your client, and shake hands.
A good way to begin the negotiations is by thanking the other team for attending and expressing your hope that you’ll be able to reach an agreement that meets the needs of both parties. In some competitions you’ll also be required to say that the negotiations are confidential, in good faith and without prejudice. You could then set an agenda that outlines the issues you’ll be discussing.
Then tackle issues one by one, as it’s easier to reach agreement on individual items than dealing with the problem as a whole.
Be clear and concise when explaining your client’s priorities, and listen carefully to what the other side has to say. Make a note of any important facts and figures so you can refer to them later. When presenting possible solutions to your opposition, be clear about why you’re proposing certain things and how they meet the needs of both parties. If your facts say that you aren’t allowed to reveal certain information to the other side, ensure that you maintain client confidentiality.
Don’t be thrown if the other side has approached the problem question in a completely different way to you. Each team’s confidential facts can be extremely divergent and some points may be difficult to reach agreement on. If the other party brings up something unexpected, stay cool, calm and collected and ask them questions about what their client’s concerns and priorities are. In some negotiation competitions you may be permitted to call a five-minute break, which can be a useful opportunity to consult your partner if you’re unsure what to do.
Keep track of the time, and don’t haggle over things you know you can’t win. Instead, concede and move on, or try reaching agreement on other issues and come back to that point later. Tick items off the agenda as you go so you know what issues have been covered and what issues still need to be dealt with.
In terms of reaching an outcome, remember that this isn’t a win/lose adversarial scenario. In an ideal world, you should be able to reach a compromise with your opposition where you both benefit. Because you’re not in court and negotiations are typically aimed at preventing matters from reaching court, you shouldn’t be arguing over points of law.
Finally, if the other side is refusing to budge, then remember that you don’t have to settle. The simplest way to decide is to ask yourself: would my client be happy with the outcome the other team is offering? If the answer is no, then don’t settle.
Coming to an agreement
Once you have reached an agreement, write down all the terms so that both sides are clear on the solution that has been reached. Your negotiation should end with formalities, so be polite and thank your opposition for the time they have taken to reach an outcome for both your clients.
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