Negotiations 101: How to Negotiate in the 1-L competition

1. Negotiations 101: How toNegotiate in the 1-L competition TTU School of Law Board of Barristers September 25, 2013

2. Objectives: • To understand the nature of the negotiation competition. • To understand the scoring criteria.

3. Visit www.ttubob.org • Constitution and Bylaws • Contact Information • List of BoB Members • Also, attend the Advanced Negotiation Competition Final Round this Friday at 7:30 p.m. in the Lanier Auditorium.

4. Negotiation Logistics • Negotiation Problems • Check-in, etc. • Time/Break • Self-Analysis • Critique • Advancing • Professional Attire

5. Negotiation Ballot • Get a copy • Read it • Use it in your strategy • Availability after the rounds

6. Questions about Facts • BoB cannot interpret ambiguities in the problem for you. • Do not ask anyone except your partner how to interpret problem, e.g., you cannot ask your mom or a professor. • Problems are often vague for a reason. • Do not go outside the problem. • Can ask your coaching panel general negotiation questions, but not substantive questions about the problems.

7. Confidentiality • Competitors must maintain confidentiality to maintain fairness in the competition. • Do not discuss the problem in common areas. • Do not leave copies in your carrel. • Suspect your roommate. • A breach of confidentiality may result in an Honor Code violation.

8. Grievances • Grievances are a serious matter! • Must be submitted in writing by 9:00 a.m. the day following the round or occurrence. • Refer to the BoB Constitution for additional information.

9. Points • 10 points for competing • 5 points for each time you advance • 1 point for each prelim round won • There will be a cash prize for both Champions and Finalists. • $100 for each Champion • $50 for each Finalist

10. Penalties • Withdrawal at any time AFTER 24 hours before the first Preliminary Round results in an automatic forfeiture of 15 BoB competition points or 25% of your total points, whichever is greater. • Contact Vice-Chair Carly Castetter, carly.castetter@ttu.eduas soon as possible when a conflict arises.

11. Judges You will know who your judge will be when you check in. Let a board member know immediately if you have a “conflict” with a judge. Read the Constitution and Bylaws for the definition of “conflict.”

12. Competition Overview • Two teams (each comprised of two law students) will negotiate with each other. • Both teams will receive some general facts for each negotiation round. • You will receive some confidential facts for your client. These will set out your client’s interests/goals and your authority. • Prelim Rounds – 50 minutes; Break Rounds – 50 minutes; Self-Analysis – 10 minutes to prepare and 10 minutes (for each team) to present its self-analysis. Brief commenting session after the round. • Prelims next week and advanced rounds the week of Oct. 7th. Final round on Oct. 10th.

13. Negotiations Planning • Knowledge of the negotiation problem, in general. • Factual knowledge, which includes knowing the basic facts, your client’s interests, and your authority (read very carefully!). • Knowledge of legal issue(s). • Use of agenda. (Cannot hand out any prepared materials.) • Opening offer. • Questions at the beginning to gather information. (Quality v. Quantity) • “Package” any negotiation issues?

14. Read the problem carefully! • What does your client really want? The facts usually explain your client’s priorities. • Pay close attention to the language. • “Mr. Smith must have an apology” vs. “Mr. Smith would also like an apology.” • “Mr. Smith prefers to pay no more than $50,000.” vs. “Mr. Smith refuses to pay more than $50,000under any circumstance.” • Watch for contingencies, e.g., “Mr. Smith will pay $50,000, but only if Mrs. Smith agrees to give him Fluffy the poodle.”

15. Issues to Discuss During the Negotiation • Effective “agenda setting” can demonstrate negotiation planning. • Do not need to jump right into the agenda. • Before setting the agenda, each side should set the tone of the negotiation, e.g., who is your client? Positive relationship? • “Taking the table” does not matter (talking first does not equate to effective control). • If you set out the issues to discuss, you can ask the other side if they have any issues to add. • No need to get into an “agenda war.”

16. Opening Offer & Concessions • Figure out your authority for each issue. (Do not ask the other side, “Is that your bottom line?” And, do not misrepresent your authority.) • Decide on a “credible” first offer that will provide you with some room to move. • Do you want to make the first offer or do you want opposing counsel to make the first offer? • Concessions are normally larger at the beginning of the negotiation. • Have justifications for your offers because the other side may ask you how you can justify your offers. • Do not “double bid.” Get the other side to make a counter-offer. • If you do not have authority, simply tell the other side. You can always “take it back” to your client.

17. Flexibility in Deviating from Plans or Adapting Strategy • Adapt to the other side’s agenda, if necessary. • How do you react to new/unforeseen information? • How do you react to the other team’s unexpected strategy? Example: Lump sum compensation vs. itemized compensation. • Should you take a break? Allowed one 5-minute break that counts toward your total time. • Saying “flexible” in a round does not equate to actually being flexible.

18. Outcome of Session • Based on the negotiation and the self analysis. • Most negotiations involve multiple issues; parties do not have to come to an agreement on all issues. • Consider the progress you make during the negotiation (time management is important!). • When assessing outcome, you must take into account your client’s interests and goals. • Think about how concessions contributed (or not) to the outcome. • Do you know the actual outcome? • Summarize throughout the round and at the end of the round to make sure that everyone is on the same page. • Who is drafting the agreement? Any issues that you need to take back to your client? Do you need to meet again to wrap up any other issues?

19. Teamwork • Consider the following: • May have defined roles, but it’s the overall teamwork that matters. • Balance between the partners. • Partners do not interrupt each other. • Do the partners back each other up? • They should not contradict each other.

20. Relationship between the Negotiating Teams • Did the team have an appropriate strategy to help the teams have a good relationship? • Talking more does not equate to control or power. . . • Was a team member hostile, sarcastic, etc.? • Did the team ignore one of the other team members? • Was the team overly difficult? • If the other team was hostile, sarcastic, or difficult in general, did the team react appropriately in order to get the relationship back on track? • Will there be a future relationship between the parties?

21. Ethics • Teams cannot (1) misrepresent material facts, (2) exceed settlement authority, or (3) invent self-serving material facts. • Also, a team should not breach their ethical obligations of non-disclosure. • If a team does, then was the ethical violation a severe violation? • Severe violation may result in disqualification.

22. Self Analysis • Teams may sit or stand. • Teams should have some structure to the self analysis – they must answer the two questions so it’s best for them to state the two questions. • Balanced presentation? • Should not criticize the other team. • Should be reflective (substance should not be canned). • Use the self analysis to help the judges understand the round, e.g., why you started with a certain offer, why you made a big concession, etc.

23. Good Luck inthe Competition!