Negotiation Videos

Good videos depicting lawyers in a transactional negotiation. These videos show tactics for exploring interests, identifying BATNA, and anchoring positions. The videos are by Professors Dwight Golann (Suffolk University Law School) and Marjorie Corman Aaron (University of Cincinnati College of Law).

New Videos on Settlement Negotiation, Exploring Clients' Interests by @ADRvideos

One new video from the ABA Section on Dispute Resolution shows the full negotiation of a roleplay arising from a landowner dispute, in person and by telephone (20 minutes). Three new videos focus on specific situations:
• Dealing with “stonewalling” (7 min)
• A client who rejects a tentative deal (5 min)
• In a related roleplay, Settle II, lawyers exploring clients’ interests (9 min)

Getting to Yes Sooner, Cheaper, and Better

is the title of an article by Missouri Law Professor John Lande, who interviewed well respected litigators about how they prepare for trial and for negotiation.  

"They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases, making strategic decisions about timing, and enlisting mediators and courts when needed. The lawyers overwhelmingly suggested starting negotiation at the earliest appropriate time. Reaching agreement sooner generally produces the benefit of reduced litigation costs as well as reduced time that parties invest in litigation. Lawyers produce better agreements when they focus on both sides’ interests because this enables them to create value, even in supposedly zero-sum negotiations." 

I like the vocabulary Professor John Lande uses: focus on both sides' interests, create value, zero-sum. It really captures well what matters in negotiation.  

Litigators Can Make Mediation Work by Thinking Like Transactional Lawyers

Good advice here by Mark Fingerman via Alex Craigie  “Litigators can increase the likelihood of success at mediation,” he said, “by acting more like transactional lawyers.”  And:

“This involves, among other things: preparing for the mediation as a negotiation, including identifying the interests of the parties, settlement ballpark and necessary deal points; focusing at the mediation on reality and problem solving instead of advocacy and pressure; using the mediator to gain and communicate information useful to making a deal rather than trying to turn the mediator into a super advocate.” 

Negotiating With Someone Who Says "No" to Your Proposal

William Ury's well-respected book, Getting Past No receives a nice summary and application from Alex Craigie (At Counsel Table) here. 

  When negotiating with difficult people:
1. Put your emotions aside,
2. Listen to your counterpart's position well enough to state it back to your counterpart,
3. Reframe the dispute by recasting what your counterpart says in a form that directs attention back to the problem of satisfying both sides’ interests,
4. Make it easy for your counterpart to say yes if you can persuade your counterpart–overtly or covertly–that your proposal or goal is actually your counterpart's idea,
5. Make it hard for your counterpart to say now by showing your counterpart the alternative is if an agreement is not reached. As Alex Craigie says: "Here are three reality-testing questions Ury likes:

1. “What do you think will happen if we don’t agree?”
2. “What do you think I will do?”
3. “What will you do?”

Ury acknowledges that this won’t always work.  He reminds us of one of the most important concepts from Getting To Yes, formulating your own Best Alternative To A Negotiated Agreement (BATNA). Before you resort to actually implementing your BATNA, Ury suggests “you should let your opponent know what you intend to do. You want to give him a chance to reconsider his refusal to negotiate.” (Id. at 117.)"

Positions v. Interests

A good summary of the distinction between positions and interests.  Thanks to Cinnie Noble
at Mediate.com