02 - Negotiation Flashcards
1
Q
Negotiation
Methods
A
Style = Delivery Strategy = Approach Tactics = Action
2
Q
Style
Co-operative
A
Agreeable
COULD Exploit
3
Q
Style
Competitive
A
Argumentative
COULD = Alienate; Intimidate
4
Q
Strategy
TYPES
A
Co-operative
Collaborative
Competitive
5
Q
Strategy
Co-operative
A
Focus = Make Agreement Statement = Settlement Importance Provide Information Action = BOTH Concessions Result = Open AND Trust Danger = Exploited; Early Concessions
6
Q
Strategy
Collaborative
A
Focus = Fair Agreement; Common Ground Statement = Work Together Share Information Action = Problem Solving NOT Blame Result = Explore (Issues SW; Mutual Benefit; Settlement)
7
Q
Strategy
Competitive
A
Focus = NO Agreement; Best Outcome Statement = Client Position Limited Information Action = Demands Result = Closed AND Bluff
8
Q
Tactics
Negotiation Format
A
Start = Case Strength Avoid = Case Weakness Reopen = Concessions
9
Q
Tactics
WHAT is Information
A
Resource
Reveal Strength
Conceal Weakness
10
Q
Tactics
Opposition Questions
A
Client = Instructions; Interests; Needs Version = Events; Allegations; Facts; Evidence Calculations Bottom Line Authority
11
Q
Tactics
Pressure Statements
A
Client Expectation Case Strength Authority Limit Pre-condition = Apology Ultimatum = Accept or Litigate
12
Q
Effective Communication
TYPES
A
Body Language = Confident Mirroring = Collaboration Presentation = Arguments Language = Objective; Concise Listen Respond NEW Information
13
Q
Effective Communication
Listen
A
Empathy = Understand; New Issues
NOT Discussed = Gaps in Evidence; Weakness
14
Q
Effective Communication
NEW Information
A
Understand
Check = Facts; Figures
Request = Evidence
15
Q
Lawyer Preparation
Considerations
A
Objectives Analysis Evaluation Costs Review Arguments Value of Trial Clarification Stage of Proceedings
16
Q
Preparation
Objectives WHO
A
Client
Opponent
17
Q
Client Objectives
WHAT
A
Legal Right = Contract; Injunction Monetary = Damages; Payment Relationship Other Objectives = Apology Costs = ADR; Litigation
18
Q
Opponent Objectives
WHAT
A
Motivation = Interests; Needs
Shared Objectives = Agreement
19
Q
Analysis
WHAT
A
Issues of Law
Issues of Fact
Gather
Exchange
20
Q
Issues of Law
WHAT
A
Cause of Action
Elements
21
Q
Issues of Fact
WHAT
A
Disputed Facts
Burden
22
Q
Gather
WHAT
A
Information
Evidence
Witness
Expert
23
Q
Exchange
WHAT
A
Statements
Disclosure
24
Q
Disclosure
Requirements
A
NO Obligation
NOT Mislead
MUST = IF Litigation
25
Evaluation
| WHAT
Evidence
Figures
Gaps = Request Information
26
Evidence
| WHAT
```
Versions = Claimant; Defendant
Gaps = Obtain; Admissible
```
27
Figures
| WHAT
Heads of Loss
Calculation
Reduction = Mitigation; Contribution
Interest = Rate; Period
28
Costs Review
| WHAT
Costs to Date
| Costs NOT Incurred
29
Arguments
| TYPES
Demands
Concessions
Offers
30
Arguments
| Considerations
```
Client = Objective; Priority
Case = Strength; Weakness
Supporting = Law; Facts; Evidence
```
31
Practical Arguments
| Considerations
Relationship
Financial Means
Payment Scheme
32
Value of Trial
| Considerations
Claim Evaluation
Risk Factors
Calculations
33
Value of Trial
| Basis of Claim Evaluation
Issues
| Evidence
34
Value of Trial
| Risk Factors
Claim Dismissed = NO Award
| Reduction = Counterclaim; Mitigation; Contribution
35
Clarification
| WHAT
```
Client = Instructions; Objectives
Authority = Disclose; Figures; Negotiation; Settlement
```
36
Clarification
| HOW
Written Record
37
Stages of Proceedings
| WHEN
Pre-action
| Proceedings Issued
38
Stages of Proceedings
| Pre-action MUST
Consider ADR
Informal Statements = Letters
Information = Request; Exchange
39
Stages of Proceedings
| Proceedings Issued MUST
Statement of Case
Witness Statements
Disclosure
40
Calculations
| TYPES
```
BATNA = Best Outcome (Settlement OR Litigation)
WATNA = Provide Opposition
```
41
Calculations
| Purpose
```
BATNA = Best Alternative to Negotiated Agreement
WATNA = Worst Alternative to Negotiated Agreement
```
42
BATNA Formula
[(a - b) x c] + (d x cr) - (e x dr)
43
WATNA Formula
(a x b) + c
44
Negotiation Process
| STAGES
```
Agenda
Opening
Information
Discussion
Dispose of Proceedings
```
45
Agenda Stage
| Topics
```
WHO = Lawyers; Authority; Expert
WHERE = Neutral
HOW = Written; Conference
```
46
Opening Stage
| Topics
Order of Matters
Client Objectives
Desired Outcome = Agreement
Authority
47
Information
| Topics = Agreed
```
Issues = Law; Fact; Evidence
Figures = BATNA; WATNA
```
48
Discussion
| Topics
```
Issues = Strength; Weakness
Evaluation = Burden; Weight; Outcome
Statement = Remedies; Reason
Arguments = Demands; Offers; Concession
Agreement = Client Best Interest
```
49
Dispose IF Proceedings
| Options
Endorse Briefs
Consent Order
Tomlin Order
Judgement AND Court Order
50
Judgement
| Effect
Affect Credit Score
| Adverses Publicity
51
Dispose Proceedings
| MUST Requirement
Inform Court
| Settlement Reached
52
Agreement
| MUST Check
Instructions
Issues Resolved
Client = Understands; Consent (Award; Conditions); Approval
53
Agreement
| ADR Methods
Oral Statement
Oral Contract
Compromise Agreement
Draft Settlement
54
Oral Statement
| TYPES
Explanation
| Apology
55
Oral Contract
| WHAT
```
Provisional = Written
Conditions = Authority; Approval
```
56
Oral Contract
| Disadvantage
NO Formal Record
| Future Dispute
57
Compromise Agreement
| WHAT
```
Merge = Original AND ADR Settlement
Contract = NOT Litigate
```
58
Compromise Agreement
| Terms (either)
Full and Final Settlement
| Subject to Contract
59
Draft Settlement
| WHAT
Memorandum of Agreement
60
Agreement Types
| NO Proceedings
Exchange of Letters
| Written Contract
61
Exchange of Letters
| WHEN
Evidence = Agreement; Final Settlement
62
Exchange of Letters
| Advantages
Formal Record
Summary = Issues; Settlement
Cost
Speed
63
Exchange of Letters
| Disadvantages
NOT Complex Terms
| NOT Large Sums
64
Written Contract
| WHEN
Evidence = Agreement; Final Settlement
Required by Law
Complex Terms
Large Sums
66
Written Contract
| Advantage
Formal Record
Detailed = Terms
Confidential
Enforceable
67
Endorse Briefs
| Contents
Claim Dismissed
Terms
Costs
Signed = Must Client; NOT Client Approved
68
Endorse Briefs
| Advantages
Formal Record
Summary = Issues; Settlement
Cost
Speed
69
Endorse Briefs
| WHAT
Back Sheet Summary
| Evidence = Oral Agreement
70
Consent Order
| Contents
Heading = By Consent
Terms of Agreement
Costs
71
Consent Order
| WHAT is Public
ANY Agreed Terms
Settlement
Payment of Costs
72
Consent Order
| Contents
Heading = By Consent
Terms of Agreement
Costs
73
Consent Order
| Terms of Agreement
Undertakings = Payment; Conditions
Settlement TYPE = Final OR Reservation
Next Steps = Stay; Enforcement
Breach = ADR; Penalties
74
Consent Order
| Costs (either)
Standard Basis
| Court Detailed Assessment
75
Consent Order
| Advantage
Party Enforce = Terms; Settlement
76
Consent Order
| Disadvantage
Court NOT Enforce = Non Litigation Issues
| Public Record
77
Tomlin Order
| Parts
```
Order = MUST Public
Schedule = Contract; Confidential
```
78
Tomlin Order
| Paragraph Contents
Terms Agreed
Liberty to Apply
Costs = Payment AND Assessment
79
Tomlin Order
| Terms Agreed
Schedule
Proceedings Stayed
Except Carrying Out
80
Tomlin Order
| Liberty to Apply
Compel Compliance
Carrying Out Terms
Failure = Contempt of Court
81
Tomlin Order
| Schedule Contents
Contract
ANY Agreed Terms
Settlement
82
Tomlin Order
| Advantage
Customise = Outside Court Powers
Confidential
Enforceable
83
Agreement
| Contents
Terms
Settlement Amounts
Uncertainty = Void Contract
84
Agreement
| Terms
Settlement TYPE = Final OR Reservation
Undertakings = Payment; Conditions
Next Steps = Stay; Enforcement
Breach = ADR; Penalties
85
Settlement
| Full and Final Settlement
ALL Matters in Dispute Closed
| NO Litigation
86
Settlement
| Express Reservation
SOME Matters in Dispute Closed
87
Agreement
| Settlement Amounts
```
Damages
Interest
Costs
Payment Scheme = Date; Method
Breach = Penalty
```
87
Agreement
| Set Aside
```
NOT Good Faith
NO Authority
Capacity
Misrepresentation
Fraud
Repudiation
```
