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1

negotiation definition

A verbal interactive process involving 2 or more parties who are seeking to reach agreement over a problem or conflict of interest between them and in which they seek as far as possible to preserve their interests but to adjust their views and positions in the joint effort to reach agreement (Anstey, 1991, p.91).

2

negotiation in a legal context

- Clients might negotiate with each other before they approach (direct)
- Lawyers negotiate on behalf of their clients in the client's absence (indirect).
- Lawyers and clients negotiate together towards settlement (facilitated).

3

advantages of negotiation

- Parties with their lawyers are in the best position to assess proposed solutions..
- Parties own the process and the outcomes (it is flexible and the parties can decide everything).
- Compromise often offers parties at least some of what they want
- Parties might not resolve all issues but may narrow them
(Spencer, 2016, pp. 29-30).

4

disadvantages of negotiation

- Power imbalances can lead to unfair or unjust outcomes.
- Inept representation can lead to agreement or setting that is less than what they may have been able to achieve using another process.

5

models of negotiation

- Adversarial (Spencer, 2016, 36-58)
- Integrative (Spencer, 2016, 36-58)
- Distributive (Spencer, 2016, 36-58)
- Principles (Spencer, 2016, 36-58)
- Constructive (Alexander & Howieson)

6

adversarial negotiation

- Parties seek to maximise victory
- Zero-cut game
- One party wins over the other.
- Four elements (Menkel-Meadow, 1984, 31).
○ Target points set to reflect parties aspirations
○ Resistance point reflect boundaries of agreement.
○ Ritual of offer and demand.
○ Compromise between target and resistance points.

7

integrative negotiation

- Characterised by adversarial nature but is distinguishable on the basis of trade offs and concessions.
- If the parties to an integrative negotiation can find enough items of value then structured trade offs will lead to a satisfactory compromise.
- Beware of strategic misrepresentation
○ This occurs when a negotiator increases the importance/value of what they are giving up and down plays the importance of what they are receiving.
○ However, If the other person finds out that you are misrepresenting these things, there is a possibility of a loss of trust.

8

distributive negotiation

- This model is based on the assumption that the parties are seeking the same goals, and value the same things in the same way (Spencer, 2016, pp. 39-40).
- Acts as though the parties are after the same resource.
- Is about claiming value
- 'distributive' and 'adversarial' can be used interchangeably
- Distinction is that adversarial negotiation is usually done in anticipation of litigation.
- There is also a distinction between how the items are distributed.

9

principled/interest based negotiation

- Principled negotiation involves…
○ The model distinguishes positions from interests.
○ Create options for mutual gain.
○ Uses objective standards for fairness
§ Legitimacy; focus on objective criteria that helps you govern the negotiation.
§ Objective criteria come in many forms
□ E.g. getting market value from other sources etc.
○ Removes the people from the problem
○ (Spencer, 2016, 40-49).
- Position is what someone wants, interest is why they want it.

10

7 elements of principled negotiation

- Interests
- Options
○ Create options for mutual gain, avoid zero sum
- Alternatives (BATNA/WATNA)
- Legitimacy/communication
- Relationship
- Commitment
Spencer, 2016, 41-49.

11

how to practice principled negotiation

- Establish mutual trust
- Negotiate with integrity
- Work cooperatively and collegially
- Think creatively
- Be prepared to compromise
- Encourage each client to see things from the other's perspective
- Be assertive, not aggressive.

12

limitations to principled negotiation

- Not all scenarios fit this model
○ In some matters adversarial, integrative or distributive bargaining is more appropriate.
○ Model does not work if parties are not interested in finding a mutually agreeable solution.
○ In cases where parties are not prepared to share relevant information so that a 'fair' outcome can be achieved.

13

constructive negotiation

- 10 steps (Alexander & Howieson, 2010, 68-102).
○ Preparation (knowledge of the facts, law, BATNA, WATNA etc).
○ Opening
○ Sending signals about relationship and priority information (building trust)
○ Gathering information
○ Agenda setting (probe for a hidden agenda, so no information can be used against you).
○ Exploring interests
○ Generating options
○ Problem solving and bargaining
○ Outcome and documentation
○ Reflective debrief

is ultimately a mixture of principled negotiation and the realities of legal practice.

14

most popular models of negotiation

the most popularly practiced models of negotiation are those of adversarial and principled negotiation.

15

reframing

- Reframing is an important skill and involves being able to capture what the party has said and be able to communicate it back to them.
- Reframing shows that the negotiator is listening, it also shows that they have/have no understood what the party is saying and allows for amendments to be made if there is a misunderstanding.
- Turns subjective language into objective language and eliminates the emotions behind the words, allowing each party to think about what has been said more clearly.

16

ways to develop active listening

- Hints to develop active listening:
○ Clear the area so nothing will be distracting.
○ Do not take phone calls etc.
○ Take minimal but relevant notes.
○ Make eye contact
○ Only interrupt for clarification
○ Reframe
- In active listening, use positive non-verbal skills (nodding) t show you understand, also use verbal affirmations like reframing etc.

17

sponging

- Sponging allows the negotiator to empathise with the disclosing party where appropriate, and then enable the parties to move forward so they can deal with other issues.

18

adversarial negotiation and relationships

adversarial negotiation is predicated on the assumption that one party can be bullied into submission, this means that the process may ultimately destroy relationships and create resentment.

19

integrative negotiations and bargaining

- Integrative negotiation is also knows as bargaining
- In integrative negotiation, the onus is on the parties to find enough items of different value and trade them off against items of a lesser or equivalent value.

20

BATNA

best alternative to a negotiated agreement

21

WATNA

worst alternative to a negotiated agreement

22

to separate the people from the problem...

- To separate the people from the problem;
○ Do not assign blame
○ Recognise and legitimise the emotions
○ Try role reversals in order to have the other party understand the contrary point of view.

23

summary of each model of negotiation

- To select a model of negotiation the following should be considered;
○ Adversarial negotiation is characterised by its lack of a consensual outcome and being zero-sum.
○ Integrative neg. is characterised by its reliance on trade-offs and concessions.
○ Distributive negotiation is characterised by the limited distribution of a finite resource.
○ Principles negotiation is characterised by the generation of options that satisfy the interests of the parties.

24

most problematic link between models

the most problematic link between the models is that between adversarial and integrative