Negotiations Guide 2023

NEGOTIATIONS

Negotiations in 2023

Please Note: This year both the Senior and Junior Negotiations will be run by the Deakin Law Students' Society Geelong and key dates will be at their discretion.

Refer to their socials and website for these dates.

Geelong DLSS Website: https://dlssgeelong.wixsite.com/home

Geelong DLSS Facebook Page:

https://www.facebook.com/DLSSGeelong/

Alternatively, you can join our mailing list for information regarding signups!

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What is the Negotiations Competition?

The Negotiation Competition challenges students to compete in teams of two to negotiate the most beneficial deal for their client. Students are provided a fact scenario regarding a legal deal which must be negotiated to try and receive the best outcome for their client. Either side of the dispute will have a set of agreed upon facts and some materials that the other party does not know. The Junior Negotiations are for First and Second Year students, and the Senior Negotiations are for Third Years and above.

Workload: Light

What are the benefits of competing?

Negotiating is a key skill utilised in legal practice, so gaining experience and practising in a hypothetical scenario is great for confidence and the resume.

Skills such as the ability to think on your feet, communication skills, and critical thinking are developed by competing in this competition.

Bring out your inner Harvey Spectre!

What is the structure of the competition?

Your goal in this competition is to negotiate an outcome with the other party’s representatives that best suits your client, in simple terms, getting the other party to agree to what your party wants, to the best of your ability. It may not be possible to get everything your client wants, and that is not what we are looking for. Your task is to acquire the best deal possible for your client, whilst also appealing to the desires of the other party, and believe it or not what some clients want is impossible.

Section 1: Deliberation

You will have 40 minutes of deliberation with the other party. You may use a five-minute break to have a private discussion regarding the negotiation during the round.

Section 2: Judge Evaluation

Judges will take approximately 20 minutes to evaluate the round and give feedback to the teams.

Total: 1 hour

What are you judged on?

Ability to work as a team: Are you talking over the top of each other or is there a consistent flow and balance of who is speaking?

Understanding of what your client wants: Have you demonstrated throughout the negotiation that you know your client’s priorities?

Understanding of what your opposition wants: Have you indicated that your team has considered the interests of the other party, or are you too focused on your client to reach an agreement?

Negotiation Skills: Have you used negotiation tactics and skills and if so, was this done effectively?

Etiquette and Presentation: Did you act in a professional and courteous manner?

How to Prepare - Techniques

Extreme Opening Offer

A cheeky little tactic this one, the extreme opening offer involves proposing an outcome that far exceeds what your client desires. An example would be offering to sell a property to the other party for $800,000 when in reality, your client would be happy to sell the property for $500,000. This technique may prove fruitful as during the negotiation, the opposing party will likely propose offers far below the extreme offer, making it seem as if your party is making considerable concessions and as such, increases your bargaining power, when in reality, you are making concessions within your client’s wishes. Whilst this may be an effective technique especially against less experienced teams, it may backfire if the offer is too extreme, as the opposing party may lose trust in your party, creating a tense atmosphere. Use this technique wisely.

When dealing with an extreme opening offer, teams should take a moment to consider the valuations provided of the properties in question and if these are not provided, estimate the value of the property. The other party may allude to the fact they have used this tactic with their subsequent offers being considerably less than their opening, so keep this in mind!

The Nibble

This technique can be used when the parties have reached an agreement in theory. Once the parties return to formalise the agreement, one team may claim that they were not authorised to make that particular agreement and would need to implement some “minor” changes. The opposing party may be caught off guard after believing they had reached a deal and as such may agree to minor changes without considering them fully to ensure an agreement is made.

When faced with this tactic by an opposing party, a team should counter with their own set of “minor” changes to balance it out, which may result in the opposing party abandoning the technique and accepting the initial agreement.

How to Prepare - Techniques

Uproar

As implied by the name, the Uproar tactic involves parties threatening dire or severe consequences for your client if a deal is not accepted or reached, such as threatening to go to court

In response to this tactic a team should consider the probability of such a threat being executed and the possible detriment to their client if it were to occur.

Silence

A powerful tool in everyday conversation, let alone negotiations, is silence. This can be implored after your team makes an offer or point, emphasising its grandeur, or in turn after the opposition has spoken. Responding to your opponent with silence can be beneficial as people tend to feel awkward or fear silence and will be inclined to break the silence. This response induced by nerves may result in the opposing party divulging secret facts or a good offer as they may not be thinking clearly.

To combat silence, a team should carefully consider their response, to ensure that they do not unintentionally disclose important information. A team must be patient and focus on their thoughts, not the silence before them, and can reply with an offer or point followed by their OWN use of silence, to reverse the pressure on the opposing party

Reasonable Offer + Empathy

A two-part punch! Teams open with a reasonable offer, asking for slightly more than their instructed minimum offer If the offer is truly reasonable the other party will be inclined to accept it but will also likely ask for further concessions. In response to this, teams should politely decline stating that they cannot make any concessions and in response to any concessions made by the opposing party should genuinely thank them in a kind tone and maintain direct eye contact, to convey sincerity

This may seem like a preferable path for the negotiation to take as it lacks any real confrontation, however, it is important for victims of this ploy to remain focused on their client’s best interests, as this is of paramount importance Acknowledge the kindness of the other party but do not waiver from your stance and client’s instructions.

How to Prepare - Approach Taking Preparation

A failure to prepare is to prepare to fail. This cliché sound of this saying is palpable but only because it is true. Teams must ensure they prepare for their negotiation, not only so each team member’s approach is synonymous and the presentation flows well, but also to help you remain confident. There will always be room to improvise and a fiveminute break for each team to regroup or alter a plan, but once you are in that negotiating room, there’s no time left to devise a plan. Teams may employ a positional based or interest-based approach.

Positional Approach

This approach may seem obvious and is most common in negotiations. The positional approach involves identifying what your client’s minimum gain from the opposition is or the maximum amount that they are willing to give, depending on whether your client is being sued, or suing, or you may need to identify both if your client is involved in a division of assets. It will also allow you to decide what constitutes an extreme opening offer in your scenario as well as potential nibbles that may be attempted by your team and the opposition.

Positional approaches clearly identify the boundaries of the negotiation and implore users to act reasonably to achieve an agreement that is slightly better than or equal to their client’s demands.

Interest Based Approach

The interest-based approach requires teams to consider what the other party is trying to achieve from the negotiations in light of the common facts. This is arguably a more responsive approach, helping your team identify possible areas of concession from the opposing party, and is ideally used when both parties are willing to collaborate. Parties must identify their desired outcome, and begin, if possible, by asking for things that are non-monetary in nature and that are most likely to be agreed to, such as visitation rights, removal of a defamatory statement or article, etc. By asking for less contentious outcomes early, parties are likely to create a co-operative and friendly environment, which may incline opposing parties to act in good faith and continue to agree. Then, acknowledge what concessions you can make, but do not give these away too early. Try to make a less contentious concession early to reciprocate your opposition’s concession or to try and establish a collaborative environment... (cont'd)

How to Prepare - Approach Taking

Interest Based Approach Cont'd

This approach aims to create an ideal situation for both parties post-negotiation as opposed to focusing too heavily on money.

Which approach to use is up to you!! Experiment and see what matches your personality types, strengths and weaknesses. Find an approach that will accommodate the tactics you want to use. Are you confident enough to sit through silence? Can you work down from an extreme opening offer in a structured and worthwhile manner? Are you a bit of a drama queen that can pull off an Uproar? Just like a new pair of shoes, see what fits best!

BATNA

This acronym may look weird and unfamiliar which usually makes things scary but read on through and you will be a BATNA expert! And not scared. BATNA stands for:

Best Alternative To a Negotiated Agreement

A BATNA is your client’s strongest course of action other than a negotiated agreement, which may include taking the matter to court, contacting the Ombudsman, leaving for another workplace, etc. By identifying this, your team can use it as leverage in a negotiation, i.e., let’s reach an agreement or we will have no choice but to take our business elsewhere, take you to court, etc.

Setting your BATNA and hypothesising what the other party’s BATNA may be, will alert you to what the minimum and maximum limits of your negotiation will be. If you know that your client will only be liable for $1 million in damages if the matter goes to court, you should not make an agreement requiring your client to pay $2 million in damages. Your BATNA and your opposition’s BATNA are your friends and certainly not to be feared. They illustrate the boundaries of a potential agreement. It should also be noted that BATNA’s are the best, in that you should NEVER settle for anything less than your BATNA. EVER!

What am I marked on?

Planning (10 points)

Adaptability (10 points)

Session Outcome (10 points)

Relationship Between Teams (10 points)

Exploration of Interests (10 points)

Creativity of Options (10 points)

Ethics (10 points)

Communication (10 Points)

Teamwork (10 points)

Total: 90 points

Please Note

Please note, the structure and/or marking process of this competition may be subject to change. We aim to provide the most accurate information. If you wish to clarify information closer to the competition, you can reach out to:

Milica (Geelong) competitions@dlssgeelong.com.au

Adam (Burwood) director-competitions@deakinlss.org

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Thank You!

WE WISH YOU LUCK ON YOUR COMPETITION ENDEAVOURS SHOULD YOU WISH TO COMPETE IN 2023.

PLEASE FEEL FREE TO REACH OUT TO OUR TEAM IF YOU HAVE ANY QUESTIONS, CONCERNS OR QUERIES AT DIRECTOR-COMPETITIONS@DEAKINLSS.ORG