LET’S MAKE A DEAL: STRATEGIES FOR BECOMING
A MORE EFFECTIVE NEGOTIATOR
THURSDAY, MAY 4, 2017
11:15 a.m. - 12:15 p.m.
Speakers
Prof. Thomas J. Stipanowich
Pepperdine University School of Law (Malibu, CA)
Hon. Lynn Duryee (Ret.)
JAMS (San Francisco, CA)
Susan S. Friedman
Office of the General Counsel, U.S. Dept. of the Treasury (Washington, D.C.)
Moderator
Adrian K. Felix
Carlton Fields Jorden Burt, P.A. (Miami, FL)
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Program Agenda
Part I: The Role of Negotiation in the Law
Part II: Negotiation Styles & Strategies
Part III: Setting Goals and Expectations
Part IV: Establishing Ground Rules
Part V: The Process
Part VI: Common Mistakes & Ethical Considerations
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Part I: The Role of Negotiation in the Law
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The Role of Negotiation in the Law
• Majority of civil lawsuits are resolved through
formal/informal settlement discussions
• Similarly, most federal and state criminal cases are
resolved through plea agreements
• Negotiation is equally important in various other
legal fields (e.g., commercial transactions, family
law, real estate)
• Each resolved case, completed transaction,
property sold involve a number of smaller
negotiations that occur throughout the course of a
matter
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Part II: Negotiation Styles & Strategies
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Negotiation Styles
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Negotiation Strategies
“The art of letting the other side have it your way”
Competitive
Adversarial
Goal is “I win”
Information shared/
withheld as needed
Focus is on positions
Collaborative
VS.
Friendly
Goal is “we win”
Favor openness &
shared information
Focus is on interests
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Part III: Setting Goals and Expectations
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Setting Goals and Expectations
Define the problem
Consider what you
want…what you really
really want
Commit to your goal
– write it down; be
accountable
Set your highest
defensible goal –
be specific; Know why
Do not lose sight of
your goal during
negotiation
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Leverage
“Bottom Lines”
“BATNAs”
Q: What is your walkaway point?
Q: What will happen
if you do not reach
an agreement?
The better your BATNA, the greater your
leverage
Consider options to change your BATNA for
the better/change the other side’s BATNA for
the worse
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Part IV: Establishing Ground Rules
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Establishing Ground Rules
“The Consistency Principle”/”The
Commitment Effect”
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Part V: The Process
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The Process (Overview)
O Step 1: Prepare Your Strategy (see prior
discussion points)
O Step 2: Exchange Information
O Step 3: Make Offer/Counteroffer
O Step 4: Closing/Getting A Commitment
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Part VI: Common Mistakes & Ethical
Considerations
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ABA Model Rules of Professional Conduct
Advocate
Rule 3.4 Fairness to Opposing Party and Counsel
A lawyer shall not:
(a) unlawfully obstruct another party' s access to evidence or unlawfully alter,
destroy or conceal a document or other material having potential evidentiary value. A
lawyer shall not counsel or assist another person to do any such act;
Transactions With Persons Other Than Clients
Rule 4.1 Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person;
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Takeaways
Beware and aware of the relationships involved.
Focus on the underlying interests.
Offers/concessions are messages – given & received.
Be flexible. There is more than one way to skin a cat.
Don’t forget your goal(s). Know your BATNA.
Impasse. Expect it! It happens in almost every case.
The most effective negotiators are assertive, confident,
prudent, and credible
Reading Recommendations
A Dealmaker’s Dozen: Negotiation Tips and Tactics Lawyers Can Use Every Day
Overcoming Impasse: Ten strategic moves to make when negotiations grind to a halt
Getting to Yes: Negotiating Agreement Without Giving In
Bargaining for Advantage: Negotiation Strategies for Reasonable People
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Questions?
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