HERBERT SMITH FREEHILLS NEGOTIATION
9102 YTEICOS 'STNEDUTS WAL NIKAED
BEST PRACTICE GUIDE
FOREWORD The 2019 Deakin Law Students' Society best practice guide has been carefully cultivated by the 2019 Competitions team. In continuing the 2019 Competitions portfolio's objective to increase education surrounding competitions, this best practice guide will equip you with the essentials to prepare for a negotiation. The ability to negotiate is of prime importance within the legal industry as well as in life. This competition aims to teach competitors the essential skills and techniques to be successful in a negotiation, skills which can then be taken and put into practice once you enter into the legal industry. Good luck!
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2019 COMPETITIONS TEAM The Senior Negotiation Best Practice Guide has been created by the 2019 Competitions Portfolio. If you have any queries please contact: directorcompetitions@deakinlss.org
Julia Mollica Director of Competitions
Georgia Gilbert Competitions Officer
Stephanie Seviloglou Competitions Officer
Jessie Nygh Competitions Officer
Jack Short Competitions Officer
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2019 COMPETITION INFORMATION
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WHAT IS A NEGOTIATION?
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WORDS OF WISDOM
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HOW TO PREPARE FOR A
TABLE OF
CONTENTS
NEGOTIATION
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BATNA
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NEGOTIATION APPROACHES
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NEGOTIATION TECHNIQUES
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THE DAY OF THE HEAT
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WHAT ARE YOU BEING JUDGED ON?
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FAQS
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THE 2019 HERBERT SMITH FREEHILLS SENIOR NEGOTIATION Schedule Sign Ups: close on May 4 Heats: 7, 8, 9 May Semis: 14, 15 May Final: 21 May
Rules Teams of two will compete against each other to achieve the best outcome for their client. Each heat will go for approximately 40 minutes with 20 minutes reserved for judge's feedback. Teams are required to keep time themselves, however the competitions team may step in if the heat is running over time. Teams are permitted to take a five minute break during the negotiation to step out of the room and discuss with their partner in private. They must do so by first asking the judge, a member of the competitions team will then guide them out of the room and keep time while the team talks in private. Teams are not permitted to discuss the confidential with other competitors. Professional business etiquette is expected at all times. May 4 is the final day for withdrawals, any withdrawals after this date will not be accepted.
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WHAT IS A NEGOTIATION? A negotiation is when two or more parties get together to try and reach a mutually beneficial solution. As a participant in a negotiation competition you will be trying to get the best outcome for your client whilst also trying to appeal to the wants and needs of the other parties. Teams of two will be allocated a party and face off against another team over the same set of facts. Each party will also have a few confidential facts, which are specific to their client. The goal is to get the best outcome for your client. Each round will last for about 40 minutes, allowing for approximately 20 minutes of judges deliberation and feedback at the end.
WHY SHOULD I NEGOTIATE? Contrary to what Suits and Law and Order will have you believe, the majority of legal disputes are settled outside of the court room. Negotiation and reaching a settlement are important parts of any good lawyers skill set. Not only is negotiation a much cheaper dispute resolution option, it is also more likely to end in a solution which both parties are satisfied with. We may not realise it but many of us negotiate in our everyday lives. Whether it’s trying to get the best price when buying a new car or simply trying to get the biggest slice of cake at a birthday, negotiating is a common skill. Participating in the negotiation competition is a good way to fine tune your skills in communication, and develop confidence in the practical skills needed to be a lawyer. Who knows, you might even use these skills when negotiating your starting salary at your first big law job! Finally, the negotiation competition is perfect for first time competitors, as you don’t need to learn large amounts of law!
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WORDS OF WISDOM By Georgia De Salle In July of last year, I travelled to Vienna to compete in the IBA-VIAC CDRC International negotiation competition. It was an incredible opportunity to go up against 21 other university teams and be judged by legal practitioners, negotiators and mediators from across the world. Participating in this competition really gave me insight into how to utilise my skills in negotiation and how to transfer them to real-life situations. Here are 7 tips I’ve found very useful for competing in negotiation competitions: Make an agenda. Go in prepared with an agenda of all the issues you’d like to cover during the negotiation. However, if you do choose to bring an agenda to the table, make sure you actually use it and stick to it. Be aware of your facial expressions and body language. Although you don’t have to smile throughout the entire negotiation, make sure you keep a fairly neutral facial expression and open body language. Be creative but commercially realistic with your solutions. Think creatively about solutions that go beyond what the facts scenario dictate. However, be mindful if this is actually practically and economically feasible for your client. Therefore, if your client is having money problems, don’t start throwing money around which you may not actually have! Don’t cite the law! This isn’t a moot and the your opponents won’t be asking you to discuss the facts of a particular case, so don’t start citing legislation or case law as authority for your arguments. Do background research. Depending on the subject matter of the facts scenario, it’s probably a good idea to do extra research so you can prepare your arguments more thoroughly and come across as more prepared in the negotiation. Try to take an interest-based approach to negotiating, rather than a positional approach. Interest based means a much more conciliatory and collaborative way to find the best deal for both parties. Positional negotiation is normally defined as being more confrontational and less effective, and generally leads to parties being less satisfied with the outcome. Aim to take a more interest-based stance. This also gives you the opportunity to demonstrate more skill in strategy and communication to the adjudicator. Finally, and probably most importantly, is teamwork! This is crucial to a successful negotiation. Make sure you and your teammate are on the same page. Formulate a plan beforehand of what roles you both will be taking up during the negotiation. This will decrease the risk of you both interrupting one another and will help the negotiation flow a lot more.
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Follow the below checklist of tips that your team could do prior to the negotiation competition. It is beneficial that you sufficiently prepare yourselves as this is skill-based. 1.Familiarise yourself with the rules of a negotiation competition. Research if you allowed breaks, the duration, and whether materials can be brought in. Refresh yourself with any formalities you are required to observe when competing. 2. Read over your facts and confidential facts numerous times and highlight any issues that may arise with your client’s case. MAKE SURE TO SEPARATE WHICH FACTS ARE WHICH!!! Don’t mistake the two as this may give the other team an advantage over you! 3. Make a list of your concessions according to priority. What are you willing to agree to and what would your client be opposed to? Be creative but remember to stick within the realms of your case’s reality. 4. It is imperative that you ultimately outline what the goal/ best outcome is for your client as well as the worst one. This will form the boundary of your negotiation with the other party. 5. Work out which style, techniques and/or approaches your team will utilise in the competition. 6. From the general facts, try to predict what the other team’s agenda may be. 7. Formulate tasks between you and your partner i.e. one person will mention this, the other will ask that and vice versa. 8. Identify and analyse your BATNA. 9. Watch a recorded negotiation competition to see what’s in store for you. Take note of what language, behaviour and strategies they employ.
PREPARING TO NEGOTIATE
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WHAT'S YOUR BATNA? Establishing your BATNA is important as it will set the boundaries for your negotiation. After identifying your alternative(s), evaluate their value or worth. Once this is done, calculate the lowest valued deal that you and your partner are willing to accept. Identify what your counterpart’s BATNA may be from the common facts. On the other hand, pay attention to any confidential facts the other party may provide as this may clue you in on their BATNA. You are permitted to take breaks, so should the opportunity arise – evaluate your progress and what you could do to improve upon your BATNA when you return to the table. Don’t agree to something that is worse than your BATNA! Not all negotiations have to have an official and neat ending.
DEFINING BATNA: Best Alternative to a Negotiated Agreement The most agreeable alternative course of action that you can take to safeguard your client’s interests should a negotiation fail. In other words, a potential source of leverage over the party. Examples include but are not limited to: - Appealing a court’s ruling - Transitioning to another place of work - Making a settlement
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APPROACHING THE NEGOTIATION A negotiation is often won by the team who has the best structured approach. You are attempting to negotiate the best possible outcome for your party and preparation is often the key to success. There are several ways to approach a negotiation; you may choose to apply both or neither of the following methods or you may find that you prepare for one approach but follow another completely!
Positional Approach This is a common and well-used approach that is often depicted in media as to how a negotiation is performed. This approach begins with acknowledging (based on the facts you are given) the minimum amount of money you will accept or the maximum amount of money you are prepared to give. If you are being sued establish the maximum amount of money you are willing to give; begin negotiations by offering a sum well below this number. Your goal is to deftly argue your case and perhaps up your ask slightly and come to an agreement with the other party that is below or equal the maximum you were willing to give. Alternatively, if you are suing the other party, establish a minimum amount of money you are willing to accept and begin by requesting a sum well above this number. Similarly, attempt to make the other party up their ask more than you lower yours. This approach is basically common bartering and the objective is to use your knowledge of the circumstances to argue that your party’s ask is reasonable and stay as closely to your ideal price as possible.
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Interest Based Approach This approach focuses less on a monetary sum and rather focuses on what each party hopes to achieve out of the negotiation by focusing not only on what you want but on what the other party might want as an outcome for the negotiation. This approach only works if both parties are willing to collaborate to achieve a mutually desired outcome. Firstly, establish your desired outcome; this may be monetary compensation, but it may also be that you wish to be reinstated to a position of employment where you were unfairly dismissed, or you may wish to receive an apology. Try to first ask for things that the other party would be more lenient towards giving you, rather than initially asking for money. Secondly, establish some concessions you may be willing to make (and don’t give these away too early!) To use the earlier example, if you were wishing to be reinstated to a position of employment after being fired, you may ask the employer for your job back but concede that you would be willing to undergo additional training or supervision. If you show the other party that you are willing to cater to their needs, they will be more likely to negotiate an outcome that caters to yours. The goal of interest-based bargaining is to work collaboratively with the other party to come to an agreement that closely suits both your needs, rather than having a strong emphasis on money.
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NEGOTIATON TECHNIQUES During negotiations, it is advantageous to understand different negotiation techniques. Having said understanding will aid your team in securing a stronger negotiation position, in addition to recognising techniques that are being used against you. For your convenience, we have included several common techniques that you may wish to utilise.
Extreme Opening Offers The extreme opening offer technique is designed to provide negotiators with a substantial degree of bargaining discretion. By setting an extreme opening offer, negotiators can appear to be making larger concession, when in reality, subsequent offers still greatly exceed your BATNA. Extreme opening offers can be effective in intimidating a less experienced team. Recipients of outrageous or unrealistic opening offers should act immediately and unequivocally in communicating the ridiculousness of such offers, to prevent the offerors from becoming comfortable in their early position.
The Nibble The nibble is a technique that may be used after reaching agreement with the other side. After establishing the agreement, the negotiators come back, seemingly embarrassed, and disclose that they didn’t possess the appropriate authority to make the earlier agreement. The negotiators follow by stating that their client is dissatisfied with several of the agreed terms, and several minor changes must be made before the terms are agreed to. Since the opposing side are psychologically committed to the earlier agreement it is likely that they will allow the additional terms in order to preserve their earlier efforts to secure an agreement. When a team suspected that they are dealing with counterparts who are endeavouring to employ the nibble technique to obtain post-agreements concessions, they should act in by demanding reciprocal changes of their own. When doing so, the team should endeavour to show relief, as their clients also wished to have several terms modified.
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MORE TECHNIQUES Uproar Uproar is a technique whereby negotiators threaten dire consequences if the parties are unable to agree. Negotiators indicated that the only means of avoiding such suffering if for the opposing side to agree to the terms they are offering. A careless opposing side may focus entirely on the alleged dire consequences and be willing to accept a less favourable agreement to avoid these consequences. Recipients of the uproar technique should assess the probability of the dire circumstances, and the effect that these circumstances would have on the threatening side. Consideration of these two questions may put the recipients in a stronger position and shift the pressure onto the threaterning side to reach an agreement to avoid the alleged consequences.
Silence and Patience Silence as a technique may be utilised by a negotiator after succinctly conveying something important and then remaining silent. The negotiator should remain patiently silent. If the silence subsists, the negotiator may wish to review notes or look out a window, to give the impression they are in no rush. Opposition negotiators regularly fear silence, as they fear that cessation of talking will surrender control of the interaction. As a response, the opposition may continue divulging and expressing their thoughts, beyond the point they intended to, resulting in both verbal and nonverbal unplanned concessions. If a team suspects that the opposition is utilising silence, they should take their time with responding. Negotiators must appreciate that reaching an agreement is not a quick process and should not rush to reach a conclusion. Negotiations should be mindful not to disclose additional thoughts that may be interpreted as a concession. After an appropriate response was made, the recipient team may themselves employ silence to shift the pressure back onto the opposing side.
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Disarming Empathy Disarming Empathy is a technique which involves taking a favourable position from the outset and allowing the opposing side to make concessions. It is important that the initial favourable position not be unreasonable. After establishing the favourable position, acting kindly and graciously to towards the other party, thanking them for each concession they make. If prompted to make a concession of your own, politely reiterate that you are unable to budge from your initial offer. If your initial offer is fair and acceptable to other party, it is likely that they will continue to make concession until reaching your initially offer. For the highest probability of success, this technique should be used against emotional counterparts. If the opposing side is disarming empathy, use caution not to become emotionally attached to the negotiation or sympathise for the opposing side. It is critical that you act in the best interest of your client, and so, do not be concede out of pity or guilt, as your client will ultimately be worse off.
THE DAY OF YOUR HEAT On the day of your heat, arrive early so you can be calm and prepared for your negotiation. Bring a note pad with you and take notes as you negotiate so that you can go back to certain topics at a later time. Remember to work as a team, cutting off your partner if a sure way to lose points. Remember that it is a negotiation and therefore, you should not behave in an adversarial manner, cooperation is key to achieving high marks Know your fact well and understand what your client wants so that you spend your time negotiation over things that matter for them.
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WHAT ARE YOU JUDGED ON? You will be judges on a number of key factors: 1) Your ability to work as a team. 2) Your understanding of what your client wants. 3) Your ability to ascertain what the opposition wants. 4) Your negotiating - the techniques and approaches you use and the degree of their success 5) Your etiquette and presentation throughout the negotiation
FAQS Do I need to have a partner? Yes, the competition is completed in teams of two. However if you do not have a partner, let us know in your sign up sheet and we will do our best to find a partner for you. Who will my judges be? Judges are a combination of academics and experienced student negotiators. What should I wear? Corporate wear. How much of the law do I need to know? In the negotiation, it is less about your legal knowledge and more about your abilities to work with the other side to achieve a favourable resolution, therefore unlike a moot, there is no need to quote cases or legislation. Will we be marked down if no conclusion is reached? No, as long as you utilise negotiation techniques and strategies to good effect, not coming to a resolution will have no effect on your score.
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FINAL WORDS
The Deakin Law Students' Society thanks Herbert Smith Freehills for their continued support of the Senior Negotiation
The Competitions portfolio thanks Georgia De Salle for her valuable contributions to the 2019 Negotiation Best Practice Guide
If there are any queries with respect to Deakin Law Student Society Competitions please contact directorcompetitions@deakinlss.org
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