Learning - Berkeley Law

Learning - Berkeley Law

Halloum Negotiation Competition Be a Lawyer: Negotiation Essentials Simao (Sim) J. Avila Senior Counsel Kaiser Foundation Health Plan Agenda Negotiation Theory Short Exercise Negotiation Process Questions? Critical Negotiation Theory Conflict Management Styles The Five Types (from Thomas Killman)

Competition Avoidance Most concerned with satisfaction of own interests, often at expense of the other. Sidesteps, does not engage in the conflict and therefore does not usually address own interests or those of the other. Primary focus on satisfying interests of the other, often neglecting or Accommodation sacrificing own concerns. Compromise Collaboration Seeks middle ground, mutually acceptable solution with partial satisfaction of own interests and partial satisfaction of others interests. Aspires to find a maximally satisfactory solution, addressing all of own interests and those of the other. Conflict Management Styles The Five Types (from Thomas Killman)

Competition Avoidance Accommodation Compromise Collaboration Learning About Our Tendencies in Conflict, While Understanding That We All Have and Use All of These Styles to Different Degrees in Different Moments Collaborative vs. Adversarial Collaborative/Interest-Based Focus on mutual gain Seek underlying needs Joint problem solvers Separate the people from the problem

Share information Build relationship Invent multiple options Use objective criteria and principled approach Adversarial/Positional Focus on maximizing own gain Stay at position level View other as opponent Attack people rather than the problem Guard/Withhold information Discount relationship or willing to sacrifice it in competition Drive for desired outcome More likely to use negative leverage Collaborative vs. Adversarial Integrative Bargaining:

Seek Interests Create Value Look for joint gains Expand the Pie Distributive Bargaining Establish Starting Positions Make Gradual Concessions

Cut the Pie Positions & Interests A Demand What Lies Beneath the Position A Strategy to Get Needs Met The Human Need A Want The Driver or Motivator Concrete Substantive Psychological Emotional

Examples: Examples: Food Shelter Clothing Health Respect Autonomy Enjoyment Love Understanding Growth/Challenge Procedural Examples: Participation Order Voice Fairness/Equality Due Process

Categories of Interests/Needs Why seek the underlying interests? Communication occurs at more meaningful, respectful and human level Promotes better understanding Improves negotiation atmosphere. Tends to decrease hostility and conflict Often discover more possible solutions or more different strategies to meet the underlying needs Solutions are more likely to solve the real problem and be more effective and durable But NOTE: Revealing interests too quickly and without adequate trust and reciprocity may be unwise as it can leave you vulnerable to exploitation. Leverage in Negotiation Positive

the carrot Something you can offer that they want. Better yet something they need. Better yet, something they must have. Negative the stick A course of action or consequence that will occur and/or which you can cause to occur, in the absence of a negotiated agreement, that is potentially detrimental to the other person . Normative Standards, objective criteria Established guidelines that are relevant in the context (e.g. law, industry norms, religious or family values, company policy). Guidelines are more persuasive to the extent that they are broadly accepted and viewed as relatively objective. Psychology: Human desire to appear consistent with norms. Note: Watch out for self-interested selection of objective criteria

Short Exercise Learning Teams A Read Confidential Instructions Prepare Negotiate Team B Read Confidential Instructions Prepare Negotiate The Negotiation Process Phases of a Negotiation Preparation Introduction & Entry: Setting the Stage Information Gathering & Exploration of Interests Option Generation of Possible Resolutions

Option Analysis and Bargaining Agreement Finalization & Closure Preparation Assess situation Situation Matrix Perceived Conflict Over Stakes in the Negotiation Perceived importance of future relation-ship between the parties HIGH I. Balanced Concerns HIGH LOW LOW II. Relationships

(Business partnerships, joint (Work team, friendship or ventures) family relationships) III. Transactions IV. Tacit Coordination (Market transactions, house sales, divorce) (Highway intersection exchange) Preparation Situational Matrix and Strategy Guide Perceived Conflict Over Stakes in the Negotiation Perceived importance of future relation-ship between the parties

HIGH HIGH LOW LOW I. Balanced Concerns (Business partnerships, joint ventures) Problem solving or compromise II. Relationships (Work team, friendship or family relationships) Accommodating, problem solving & accommodating III. Transactions (Market transactions, house

sales, divorce) Competition, problem solving and compromise IV. Tacit Coordination (Highway intersection exchange) Avoidance, accommodation or compromise Preparation Identify the Context The Setting Ensure Appropriate: Time Location Privacy/Publicity Necessary People Included Necessary Information available Know Yourself Identify

your: Assess the nature & importance of: Relationships Concrete Outcomes Reputation Hidden Decision-makers Outside Influences Interests (High) Expectations Bottom Lines Potential Strategies Alternatives to Negotiation (Principled) Criteria Leverage Potential Solutions Try to Understand Them Identify or Imagine

their: Introduction & Entry: Setting the Stage Set the Tone: Rapport Building Positive start Clear/Respectful Introductions Agree on Process: Ground Rules Time available Format for discussions Housekeeping (breaks etc.) Set Forth Purpose(s) of Meeting/Negotiation: Identify issues to discuss Establish agenda (order for discussion)

Information Gathering & Exploration General Goals: Build rapport Clarify interests Develop and share data needed for problem-solving Identify areas of agreement & disagreement Keep negotiation on track, focused on issues Set the stage for problem-solving Seek to Understand Them:

LISTEN!! (ACTIVELY) Show them you are listening Probe for their interests Ask interested/curious questions Study their responses to initial ideas Help Them to Understand You: Assert your interests respectfully Explain your criteria & rationales Share persuasive data Use leverage with care Option Generation of Possible Resolutions The Spirit: Creative g Free-flowin

Inclusive oblem r P g in k c a Team Att e Pie h t d n a p x E Brainstorming Method: Use board/flipchart All ideas recorded

Ideas are not commitments No criticism No evaluation Timing After Peop le Feel Hea rd/Unders When Issu tood es Clearly & N e utrally Defi You Have S ne d ufficient In formation Option Analysis and Bargaining Creative Options Can be:

Generally Helpful Guidelines: Tackle one issue at a time Stay task focused Remember interests Use objective criteria for evaluation Maintain respectful environment Patience, patience, patience Combined

Modified Used in the alternative Tested Implemented in stages Distributive Bargaining: Give principled rationale for positions Dont lose track of underlying interests Leave room for concessions Look for reciprocity Compare proposals to your alternatives Study ways to break impasse Agreement Finalization & Closure

Capture Agreements: Often in writing With clarity, specificity and detail (who, what, where, when, how) Clear responsibilities Potential incentives for compliance Anticipate potential contingencies setbacks Identify procedure for settling disputes (ADR) Provide for monitoring Possible confidentiality or publicity Closure DONT Rush conclusion Leave without clarifying agreements Apply heavy pressure

End on affirm ative note Be gracious Commend p articipation Use ceremon y & publicity as appropriate Good Negotiations = Awareness of and ability to apply negotiation theory Development of an effective negotiation style Understanding of the negotiation process Improvement of critical communication skills Where to Get More Information

Richard Shell: Bargaining for Advantage Folberg & Golann: Lawyer Negotiation; Theory, Practice and Law. Fisher & Ury: Getting to Yes

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