Legal Negotiation in a Nutshell
Author:
Teply, Larry L.
Edition:
3rd
Copyright Date:
2016
11 chapters
have results for negotiation
Chapter 1. Negotiation in Law Practice 80 results (showing 5 best matches)
- Most of the discussion in this text is directed (unless otherwise stated) toward negotiating civil disputes. This type of negotiation permits a broad range of permissible behavior. However, it does not raise (1) the complicated issues of fairness, ethics, and public policy involved in criminal and domestic relations cases; (2) the group dynamics issues raised by labor negotiations; nor (3) the cross-cultural and political problems arising in an international context. Nonetheless, much of what is stated about negotiating civil disputes applies to criminal cases, labor-management negotiations, divorce negotiations, and international legal negotiations.
- Negotiation is an integral part of the lives of many professionals, especially lawyers. In fact, negotiation is often described as a lawyer’s principal occupation. Lawyers use negotiation for their clients, such as partnerships, corporations, franchises, and joint ventures. They use negotiation for their clients, including real estate deals, commercial sales, corporate mergers, and employment agreements. They also use negotiation
- One category of legal negotiations lawyers conduct relates to transactions between parties. This type of negotiation arises in a wide array of settings—including sales of goods, securities, real property, services, and operating businesses. From a legal perspective, the hallmark of this kind of negotiation is a voluntary exchange on the part of the parties. Written contracts often, but not always, memorialize the exchange. The agreements regulating these transactions are essentially legislative in nature: they are directed primarily at the future conduct of the parties and the parties’ respective rights.
- Four aspects of this type of negotiation should be kept in mind. First, most transactions are consensual. In this type of negotiation, either party can “walk
- On the other hand, labor-management negotiations resemble civil disputes. Labor-management negotiations are often highly adversarial. They also are noted for “psychological warfare.” Furthermore, the parties cannot simply “walk away” because they a legal duty to bargain.
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Chapter 2. “Effective” and “Ineffective” Legal Negotiators, Legal Negotiating “Styles” and “Strategies,” and the “Stages” of Legal Negotiations 59 results (showing 5 best matches)
- No matter how the combination of styles and strategies are described, however, the best mix of styles and strategies should always reflect the basic type of legal negotiation involved—civil disputes, contractual transactions, labor-management negotiations, criminal cases, divorce and domestic relations problems, and international legal negotiations. As discussed in Chapter 1(D), above, each of these types of legal negotiations reflects a specialized kind of negotiation involving different customs, practices, and peculiarities.
- Finally, according to Williams, negotiators using this “blended” style should be very perceptive and attentive to the negotiation process. Furthermore, as discussed in Chapter 4, the negotiator must be very alert to the tactics used by the opposing side during every negotiation session and take steps to counter those tactics and lessen their effectiveness.
- Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style
- Using updated rating scales to reflect “modern vocabulary used by negotiation scholars” and a broader demographic base, Professor Schneider’s bipolar analysis of her data for two clusters indicated that “the two styles of [legal] negotiation have clearly diverged in the last twenty-five years.” Professor Schneider’s survey found that only two adjectives describing negotiation
- Diamond regards becoming overcome with emotion as “the enemy of effective negotiations and of effective negotiators”—on sides of the negotiation. That view is consistent with Williams’ findings, discussed in section C above, that effective negotiators were “self-controlled” and ineffective ones were “emotional.”
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Chapter 3. Planning, Preparation, and Working with the Client 44 results (showing 5 best matches)
- The Synthesis of Legal Counseling and Negotiation Models: Preserving Client-Centered Advocacy in the Negotiation Context
- Others recommend a more comprehensive approach to organize the preparation for a negotiation and to record its progression. For example, in the essential legal skills book, Negotiation, Diana Tribe recommends creating a “negotiation notebook”—a
- , James Freund suggests that leverage can be visualized in terms of a “playing field.” Freund notes that the playing field in a negotiation is often not “level.” One party usually wants the agreement more than the other or one party is participating in the negotiation “less voluntarily” than the other. Thus, “[w]hen the playing field is unlevel for whatever reason, it creates leverage.”
- In preparing for a negotiation, a negotiator could devise a series of questions following the above patterns to cover the entire negotiation. Both open questions ( addition, prefacing questions with “help me understand” will help you draw out information and the other side’s perspective. In this way, the negotiator can force the opposing side to do most of the talking and still control the direction of the negotiation.
- As discussed previously, before entering into negotiations on behalf of a client, a lawyer should discuss with the client on an on-going basis, parties’ interests and concerns, the client’s BATNA, the “value” of the case, and the planned negotiation strategy in light of the client’s interests.
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Chapter 4. Opening the Negotiation, Bargaining, Information Exchange, Tactics, and Persuasion 128 results (showing 5 best matches)
- Hosting the negotiation is said to be preferable for several reasons. First, the location of the negotiations may reflect the physical arrangements and psychological climate at that site. Generally speaking, the host of negotiations has a legitimate right to assume responsibility for arranging the physical setting—often to the host’s “competitive” advantage. In sports, this aspect is referred to as the “home field advantage.” In contrast, when the negotiation occurs at a neutral site, the physical arrangements are normally decided upon by mutual consent of the negotiators or a “standard” arrangement is used.
- With regard to the parties included in a negotiation, an important and widely recognized consideration is “structural fairness.” In general, all major parties to a dispute—or the groups that will be most impacted by the outcome of the negotiation—ought be included at the table. Doing so significantly enhances the legitimacy of the negotiation as well as the likelihood of the resulting agreement being accepted and implemented.
- Another matter that will need to be established by preliminary negotiations is the actual means or method of formally negotiating the dispute—for example, exchange of letters, face-to-face negotiation, discussion over the telephone, or email. Determining the method of formally negotiating can involve varying negotiation methods itself.
- In general, lawyers should negotiate important matters in person, not over the telephone or email. Telephone negotiations make it easy to say “no.” Hanging up ends communication. Telephone negotiations also tend to be much shorter than person-to-person negotiations. It is widely believed that negotiators with relatively weak positions should especially avoid telephone and email negotiations. Telephone negotiations generally are regarded as more competitive than a face-to-face meeting, and the stronger position tends to prevail among negotiators using a competitive style. Furthermore, if email is going to be used, it is widely suggested that the negotiators first talk on the telephone to get to know each other and develop some rapport, especially when they do not have an ongoing relationship.
- Legal negotiation is influenced by a variety of important considerations, including the actual means or method of negotiating—for example, face-to-face negotiation versus over the telephone or email; the location of the negotiation; its physical setting; timing; the parties involved; and the agenda. Many of these items will be established prior to or at the beginning of a negotiating session. Making small commitments on these issues helps set the stage for more substantial agreements later.
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Index Page 120 results (showing 5 best matches)
- See also Active Listening; Listening; Email Negotiations; Questions; Telephone Negotiations
- See Contractual Negotiations; Types of Legal Negotiations
- ADMISSIBILITY OF STATEMENTS DURING NEGOTIATION
- Control of, as a stage of negotiation, 106, 204
- See also Bridging Solutions or Proposals; Closure; Drafting Agreements; Stages of Negotiation
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Chapter 5. Reaching Agreement or “Final Breakdown,” Wrapping up the Details, Drafting the Agreement, Interpreting the Settlement, Fairness, and Defects in Settlements 33 results (showing 5 best matches)
- If the parties are unable to arrive at a settlement and the negotiations are not revived, a “ ” has occurred and the case goes to trial for resolution in a litigation context. Commentators use this term because not all breakdowns in negotiation are really final. As noted previously, the negotiation process is often a cyclical process—with various starts and stops. Settlements can occur after the jury is chosen, while the jury is deliberating, or even on appeal.
- One way to learn from negotiating experiences is to engage in a post-negotiation “self-analysis.” In
- You have now seen an overview of the negotiation process from beginning to end. As it is often said, negotiation is certainly not a science—it is an “art.” Yet one’s “art” can be improved by recognizing the materials that you have to work with, the choices that must be made, and the patterns that are possible.
- Time pressure is a perceived need to end the negotiation quickly. Time deadlines and pressures have significant effects on negotiation. Studies indicate that the less time pressure felt by negotiators, the better they tend to do in a particular case. When both negotiators feel time pressure, there is a greater probability that making concessions (adopting a cooperative approach) will be a profitable strategy. On the other hand, when time pressures are not felt, concession making is less likely to be profitable. Studies also indicate that when experimental negotiations were conducted in stages, increased time pressure lowered both negotiators’ expectations, levels of demand, and their tendency to bluff at the first bargaining session.
- Time pressures have several sources. Sometimes, time pressure relates to the nature of the work week. For instance, many negotiations are concluded late on Friday afternoons or just before the start of holidays. In other instances, they are closely related to contract obligations. For example, a widely recognized aspect of collective bargaining between management and labor is the “eleventh hour” effect in which agreements are reached shortly before contract expiration. In lawsuit negotiation, the time pressure arises from the approach of trial—which is closely associated with Stage Three of legal negotiation (emergence and crisis).
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Preface 7 results (showing 5 best matches)
- Legal negotiation has become widely recognized as a subject of great importance in the practice of law. This work is designed to present a succinct treatment of legal negotiation to the reader. Because of size and format limitations of this series, difficult questions of exclusion and depth of treatment have constantly been presented in the preparation of this work. I have tried to balance the competing considerations and believe that the most important material has been included. This third edition, , substantially adds discussion of several new topics and incorporates recent research on legal negotiation.
- Legal Negotiation and Settlement
- Toward Another View of Legal Negotiation: The Structure of Problem Solving
- I also want to recognize the path-breaking contributions of Chester Karrass’ series of books to both theoretical and practical body of knowledge of negotiation skills. His books cited in the “References and Resources” section are highly recommended. Likewise, attending one of his seminars was a profitable experience for me and is also highly recommended.
- , Copyright © 1980 by Shepard’s/McGraw-Hill, Colorado Springs, Colorado. This book provides insights on the negotiation process from an advocacy perspective in an interesting and helpful manner.
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References and Resources 26 results (showing 5 best matches)
- The Synthesis of Legal Counseling and Negotiation Models: Preserving Client-Centered Advocacy in the Negotiation Context,
- When David Meets Goliath: Dealing with Power Differentials in Negotiation
- The Role of Fairness in Negotiations
- Protecting the Confidentiality of Settlement Negotiations,
- “Cases on Both Sides”: Patterns of Argument in Legal Dispute-Negotiation,
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Outline 24 results (showing 5 best matches)
Title Page 1 result
Half Title 1 result
- Publication Date: December 22nd, 2015
- ISBN: 9781634597623
- Subject: Dispute Resolution
- Series: Nutshells
- Type: Overviews
- Description: Follows the entire process from opening negotiations to settlement. Text first introduces negotiation in law practice and representing a client in legal negotiation. Covers the basic types of legal negotiations, case evaluation, and preparation. Also addresses the types of legal disputes that should not be negotiated. Examines negotiating styles and strategies, as well as the stages of legal negotiation.