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Better Negotiations for Government Lawyers
July 19, 2016
1:00 - 2:30 Eastern
American Bar AssociationGovernment and Public Sector Lawyers Division
Cosponsored by the ABA Section on Dispute Resolution
Panelists Joanna M. Jacobs, Director, Office of Dispute
Resolution at U.S. Department of Justice, Washington, D.C.
Joan Stearns Johnsen, Legal Skills Professor, University of Florida, Levin College of Law, Gainesville, FL
Richard Melnick, Esq., Associate County Attorney, Montgomery County Attorney’s Office, Rockville, MD
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Who Is Here?
Government Lawyer Non-Lawyer Non-Government
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What Do You Negotiate?
Transactions Lawsuits
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Negotiation
A process by which two or more people communicate to solve a particular problem over which they have competing needs, interests, and desires.
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Communication Cornerstone of
Negotiation=Communication
-Written -Verbal -Non-Verbal-Use ALL senses to obtain information, and glean true meaning behind communication
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Ten Fluid Steps to a Negotiation1. Preparation and Planning2. Ice Breaking3. Agenda Control4. Informational Bargaining5. Proposals; Demands; Offers6. Persuasion/Justification7. Concessions8. Crisis—Resolution or Deadlock9. Conclusion10. Memorialize
= AGREEMENT/CONTRACT 7
Three Styles of Negotiation
True Problem Solving
Cautious Problem Solving
Adversarial
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Theories of NegotiationDistributive v.
Integrative Fixed pie v.
Expanded pie
Competition v. Mutual Gain
Adversarial v. Collaborative
Positional v. Principled
Positions v. Interests
One solution v. Multiple Solutions
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Anticipation NEEDS- Price below which you would “walk-away”
INTERESTS- A party’s concerns about an issue-It isn’t want they want; it’s why they want it-Remember the “orange”
DESIRES- Best outcome
INFORMATION -You will/will not disclose-You seek from the other side-They may seek from you-They may/may not wish to disclose 10
Types of Questions Open-Ended– (“Explain what you did on the day of
sale;” “What is on your mind?;” “Why?”) Seeks narrative.
Narrow- (“So, how did you learn the item was for sale?”) Focuses more deeply into the subject.
Leading- (“Did you know the money was counterfeit?”) Seeks “Yes” or “No” response.
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Polling Question #1
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When Preparing and Planning a Negotiation . . .
A. One should do so only at the beginning of the process. B. Parties should never disclose
negative information to the opponent. C. Parties should consider only info that
is known prior to the negotiation. D. None of the above.
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Pete Plaintiff v.Debbie Defendant
Freak snow storm on May 2, dumps 10 inches of snow.Debbie rear ends Pete who is stopped at red light.
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Fact PatternDebbie, who works for City Dept. of Health, is driving south 25 mph on Michigan Ave. in city vehicle on work related business.Debbie was about to place a cell phone call in violation of law.City contractor had not yet plowed the streets.
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Defendant Hits PlaintiffPete, an unemployed single father of two young children with no medical insurance, was on his way to job interview. Pete is stopped at red light when hit by Debbie.
Pete is badly injured and his 2005 Volvo is totaled.
Pete discovers yoga. Recovers. Finds job in New Town, Old York. Wants to move.
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Damage Claim
Claim of $80,000 for Pain and Suffering Medical Bills = $8,000 (ER visit, 3 visits to
orthopedist and 6 visits to PT) Rental Car = $5,000 Old Volvo (totaled) valued at $7,000
Total Claim of $100,000
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Immediate Needs
Yoga certification class= $1,000 Anticipated moving expenses=$5,000 Needs new car=$10,000 for used 2010
Subaru Gifts to friends =$500
Total: $16,50018
Polling Question #2
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Where Would You Open?
As Pete’s Attorney, what would be your initial demand? A. $100,000 B. $125,000 C. $ 40,000 D. $300,000 E. $150,000
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Anchoring
The human tendency to rely on the first piece of information offered, which tends to bias expectations
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Entrenchment and Reactive Devaluation
Entrenchment – locked into a position due to the amount of time and effort already expended
Reactive Devaluation – the human tendency to reject a proposal simply because the opponent offers it
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Debbie’s Authority Debbie has a dilemma. She may have
been on her cell phone in which case the city will not indemnify her. If Debbie was on her cell phone, the
insurance company will only pay $50,000 towards the cost of defense. If Debbie was not on her phone,
insurance will cover up to $100,000 per incident including attorney’s fees.
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Polling Question #3
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If Pete Plaintiff Opens at $150,000, Where Does Debbie Defense Counter?
A. $10,000 B. $ 25,000 C. $ 8,000 D. $ 30,000
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Zone of Potential Agreement (ZOPA)
Bargaining Zone/Reservation Point – the respective minimum or maximum amounts each negotiator will accept before walking away
Where parties are better off than no agreement at all.
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Negotiating Range
Best Alternative to a Negotiated Agreement (“BATNA”)
Offer = Only make or accept if the terms are better than the BATNA. Otherwise, you are better off going with what you perceive to be a better alternative to a negotiated agreement.
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Polling Question #4
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What is the ZOPA: Zone of Possible Agreement? A. Between $20,000 and $80,000 B. Between $30,000 and $100,000 C. Between $40,000 and $ 120,000 D. Between $20,000 and $ 50,000 E. Between $30,000 and $ 75,000
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Information Risk Short-term- Releasing
information that harms your position
Long-term- Losing credibility for not releasing information
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Restraints Time Pressures
Lack of Authority
Audiences- stakeholders in and out of the room
Extreme Demands
Threats
Not Allowing Self to be Persuaded
Lack of Trust31
Challenges and Opportunities Personalities Knowledge Emotions Creativity Integrity Power Control Effective Questions
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Value, Fairness or Reasonableness
Influences- Parties; Relationship; Society
“Jury Question”
Through informational bargaining, consider and use objective criteria to persuade or be persuaded
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Polling Question #5
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What are the best practices for memorialization of an agreement?
A. Insist on drafting the agreement yourself (terminate if denied). B. Try to create an agreement from
memory. C. Trust your opponent will get terms
right, no need to review. D. None of the above.
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Memorialize
Demand letters Share boilerplate language Emails or letters after meetings Memorandum of Understanding (MOU)
that you draft Read MOU in full each time it comes
back to you with revisions
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To Recap: Ten Fluid Steps 1. Preparation and Planning2. Ice Breaking3. Agenda Control4. Informational Bargaining5. Proposals; Demands; Offers6. Persuasion/Justification7. Concessions8. Crisis—Resolution or Deadlock9. Conclusion10. MemorializeAGREEMENT/CONTRACT
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QUESTIONS???
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