NEGOTIATION

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 WHAT IS NEGOTIATION?
• The term negotiation originated from the Latin term ‘NEGOTIARI’
– To carry on business
• Negotiation is consensual bargaining process in which the parties
attempt to reach agreement on a disputed or potentially disputed
matter- Black’s Law Dictionary
• the negotiation process is the means by which two or more
individuals attempt to reach an agreement.
• negotiation is an important skill for lawyers to master to achieve the
best result for their clients.
• Negotiation has also been characterized as the “preeminent mode of
dispute resolution”
• It is used in everyday life
CHARACTERISTICS
• Voluntary: No party is forced to participate in a negotiation. The
parties are free to accept or reject the outcome of negotiations and
can withdraw at any point during the process. Parties may participate
directly in the negotiations or they may choose to be represented by
someone else, such as a family member, friend, a lawyer or other
professional.
• Bilateral/Multilateral: Negotiations can involve two, three or
dozens of parties. They can range from two individuals seeking to
agree on the sale of a house to negotiations involving diplomats
from dozens of States (e.g., World Trade Organization (WTO))
• Non-adjudicative: Negotiation involves only the parties. The
outcome of a negotiation is reached by the parties together without
recourse to a third-party neutral.
• Informal: There are no prescribed rules in negotiation. The parties
are free to adopt whatever rules they choose, if any. Generally they
will agree on issues such as the subject matter, timing and location
of negotiations. Further matters such as confidentiality, the number
of negotiating sessions the parties commit to, and which documents
may be used, can also be addressed.
• Confidential
• Flexible: The scope of a negotiation depends on the choice of the
parties. The parties can determine not only the topic or the topics
that will be the subject of the negotiations, but also whether they will
adopt a positional-based bargaining approach or an interest-based
approach.
Skills of negotiators
The responsibility of the negotiator is to not only engage with
his or her counterpart on the other side of the table, but to also
oversee and manage the overall process.
• Good interpersonal skills,
• The willingness to prepare
• The ability to employ tactics and certain counter tactics
• Knowledge of strengths and weaknesses of position
• Knowledge of client needs and interests as well as opponents
• Inner confidence
Types of negotiators
1. The under-prepared negotiator
2. The anxious negotiator
3. The one-sided negotiator
4. The domineering negotiator
5. The under-rehearsed negotiator
6. Competitor or Assertive
7. Accommodator or Pleaser
8. Teammate
9. Analyst
Types of Negotiation
• Distributive negotiation
A distributive negotiation usually involves starting talks with no pre-
existing relationship. A long-term relationship is also unlikely to
develop. Everyday examples include buying or selling a car or a
house. The purchasing of products or services is a simple business
example.
A distributive negotiation is a negotiation in which parties are
haggling over a single issue, most typically the price of a given
commodity or service. Parties engaged in a distributive negotiation
bargain over a fixed amount of value—that is, they aim to slice up the
pie.
 .
• Integrative negotiation
More than one issue is at stake—ideally, many issues. When multiple issues are
available for discussion. Both teams want to walk away feeling they’ve achieved
something that has value. Ideally, this means each team achieving what they
want. It is everyone wins something situation.
• Team negotiation
A team negotiation is one in which at least one of the parties is made up of more
than one person. More typically, in a team negotiation, there are at least two
teams involved, sometimes more. Examples of team negotiations include contract
negotiations between company management and a union, or two organizations
negotiating a possible merger. Negotiators typically team up when they believe
their different talents, skills, and knowledge will make them stronger.
• Multiparty negotiations
Three or more parties are negotiating among each other, whether as
individuals or as part of negotiating teams
• One-shot vs. repeated negotiations
One –shot negotiation is that parties meet only once and no intention
to negotiate in future
Negotiators who hope to engage in repeated negotiations tend to work
harder to create a sense of mutual trust, and their negotiations may be
more cooperative and collaborative as a result.
 Stages of negotiation
• Preparation - gathering stage during which the client must disclose to the
lawyer what he or she desires
• Preliminary - lawyers must familiarize themselves and develop legal theories to
support their positions and anticipate counter arguments they expect the
opposing side to make
• Information – exchange of information
• Distributive - negotiators begin discussing what they have and what they are
willing to give up
• Closing - both sides are “psychologically committed” to a joint resolution
• Cooperative - negotiators focus on alternatives that may benefit both parties
Advantages
• Flexibility
• Greater possibility of a successful outcome
• Voluntary process
• There is no need for recourse to a third-party neutral.
• Enhance the relationship between the parties
• Less expensive for the parties and may reduce delays.
Disadvantages
• Weaker parties are placed at disadvantage
• The absence of a neutral third party can result in parties being unable
to reach agreement as they be may be incapable of defining the
issues at stake, let alone making any progress towards a solution.
• No party can be compelled to continue negotiating.
• The negotiation process cannot guarantee the good faith or
trustworthiness of any of the parties.
• Prevent other party from their rights
• Not always legally binding.
Principled Negotiation
• Principled negotiation is an approach to conflict resolution outlined
in the book, "Getting to Yes." The book by Roger Fisher and
William Ury was published in 1981 and includes four fundamental
principles of negotiation and four obstacles people might face in the
process.
• Negotiations commonly follow a process of “positional bargaining.
• Positional bargaining represents a win-lose, versus a win-win
paradigm. In positional bargaining each party opens with their
position on an issue then bargains from the party’s separate opening
positions to eventually agree on one position.
 positional bargaining does not tend to produce good agreements.
• Reasons
- It is an inefficient means of reaching agreements.
The agreements tend to neglect the other party's respective
interests.
Ego tends to be involved.
It encourages stubbornness thus harming the parties' relationship.
Elements of Principled
Negotiation
• Separate the People from the Problem
➢people tend to become personally involved with the issues and their
respective position, they may feel resistance to their position as a
personal attack. Separating yourself and your ego from the issues
allows you to address the problem without damaging relationships.
It will also allow you to get a more clear view of the substance of the
conflict.
➢people problems- (1) different perceptions among the parties; (2)
emotions such as fear and anger; and (3) communication problems.
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➢suggested solutions
- Try to understand the other person's viewpoint by putting yourself in the
other's place.
- Do not assume that your worst fears will become the actions of the other
party.
- Do not blame or attack the other party for the problem.
- Try to create proposals which should be appealing to the other party.
- Acknowledge emotions and try to understand their source (understand that
all feelings are valid even if you do not agree or understand them).
- Allow the other side to express their emotions.
- Try not to react emotionally to another’s emotional outbursts.
Symbolic gestures such as apologies or expressions of sympathy
can help to defuse strong emotions.
Actively listen to the other party (give the speaker your full
attention, occasionally summarizing the speaker's points to
confirm your understanding).
When speaking direct your speech toward the other party and
keep focused on what you are trying to communicate.
You should avoid blaming or attacking the other person, speaking
only about yourself.
Try using “I” statements, such as “I feel” or “I think.”
Think of each other as partners in negotiation rather than as
adversaries.
• Focus on Interests not Positions
When a problem is defined in terms of the parties' underlying
interests it is often possible to find a solution which satisfies both
parties’ interests. All people will share certain basic interests or
needs, such as the need for security and economic well-being.
• Invent Options for Mutual Gain
➢four obstacles to generating creative problem solving options
(1) deciding prematurely on an option and thereby failing to
consider alternatives;
being too intent on narrowing options to find the single answer;
defining the problem in win-lose terms; or
Thinking that it is up to the other side to come up with a solution
to the party’s problem.
➢four prescriptions for overcoming these obstacles and
generating creative options
Separate the process of inventing options from the act of judging
them;
Broaden the options on the table rather than only look for a
single solution;
Search for mutual gains; and
Invent ways of making decisions easy.
The key to reconciling different interests is to "look for items that
are of low cost to you and high benefit to them, and vice versa"
• Insist on Using Objective Criteria
➢It’s common in negotiation for parties to argue back and
forth about whose “facts” are correct. This type of argument
is likely to end in either impasse or an inefficient
compromise. In principled negotiation, negotiators rely on
objective criteria—a fair, independent standard—to settle
their differences. For example, they might agree to abide by
standards such as market value, expert opinion, industry
protocol, or law. Importantly, parties should agree in advance
about which objective criteria to consult and agree to abide
by the outcome.
The Agreement Trap
• The “agreement trap” describes the tendency
to agree to a deal that is inferior to your best
alternative to a negotiated agreement. That is,
we sometimes reach agreement even though
a significantly better deal is available to us
elsewhere.
ZOPA
• ZOPA (Zone of Potential Agreement)- It explains the financial
range at which an agreement can be met, and both parties
can leave happy, neither a worst-case scenario nor absolute
lowest selling point.
• A RESERVATION PRICE- is the lowest possible price a
negotiator would feel comfortable selling goods and services
for. It can also be the highest possible price a buyer would feel
comfortable paying for a product or service.
• BATNA- it is the best you can do if the other person refuses to
negotiate with you. It is the only standard which can protect
you both from accepting terms that are too unfavourable and
from rejecting terms it would be in your interest to accept.
ZOPA

• ZOPA, BATNA, and reservation prices are all key concepts to