Negotiation:

Main page:Preface
Extract 1 : The skills and plan
Extract 2 : Practical exersice and claimant
Extract 3 : Transcript & Analysis

The skills:

Never lose a calm, confident and collected attitude
This is essential. Should you lose your composure, not only will you lose the respect of your opponent but they are also less likely to "play ball" with you. Indeed they may just clam up altogether. Or worse rise to an argument. If this happens it is probable that the negotiation will fail. A fine line must be drawn between being assertive and being overbearing. Keep calm and collected at all times and your thoughts will come easier to you. A nervous opponent also makes an easy target. Even if you are not that confident of your client's position you should always endeavor to appear to be as confident as possible. You may just get that extra bit of leverage from your opponent if it appears that you are self assured as to the strength of your case.

Endeavour to meet your client's objectives and get the best deal for your client
Negotiation is not about achieving what you think is the most beneficial outcome for your client. It is about obtaining your clients objectives. For example you may have a strong case against your opponent, whose client is a local business that your client relies upon for a substantial portion of his trade. Your client becomes aware that the company is close to insolvency due to some temporary cash flow problems. Thus even though you think you can recover a high percentage of the possible damages, your client may want you to reach a settlement that will allow the company to restructure the debt, as well as reducing it to ensure the company does not become insolvent. You must ascertain all your clients objectives and prioroitise them. These then should become your objectives. The process is then one of pursuing these objectives and moving to a position that is mutually acceptable to your client and your opponent's client. Without sacrificing the needs of your client more than is necessary. Presenting your client's case is one thing. However under no circumstances ever fabricate events to further your client's case.

Overt Stalemates
There many times when both sides may feel that no more movement can be made in regards to a contested item. For example, the amount to be paid in respect of the goods due to their lack of satisfactory quality. This can be fatal for the negotiation. Never allow it to halt the process, instead try and agree to leave it until later, or join it with another item that has yet to be negotiated. In doing so you widen the area of negotiable factors and increase the chances of getting a mutually acceptable compromise on the two issues. In some case you can use the stalemate to your advantage; by leaving the issue until later you may be able to get a more beneficial settlement for your client.

Try not to be a pushover
You must not give your opponent the impression that you are going to agree with everything that he says. Even if he convinces you early on that he has a strong case on a particular contentious issue there is no need to let this be written all over your face. The byword in this situation is indifference. Be too enthusiastic and you will be seen as a pushover. Be too stony and you will be seen as someone who is not willing to concede ground when it is reasonable. Remember that indifference doesn't mean being inattentive. Let him think that he still has to convince you. This will make you more difficult to read. Remember if you look this way then your opponent may just lose a little confidence in his argument and believe that he has to make further concessions to you.

Intelligent and structured arguments
Firstly try and negotiate each contentious mater separately, thus breaking the process down into several sections to be discussed. Remember that exemplary confidence, remaining reserved and conducting oneself in a polite and amicable way are all hugely influential in the process. However these have to be the gloss on a well structured argument. The strength of your clients case must be represented by legal and evidential arguments that tie together to present your clients position in the most persuasive manner possible. You must however remember to take on board your opponents points. Especially in the BVC assessments the clients will often have equally as good case. It is no good just to real you're your arguments as if you were talking to a brick wall. The process should flow in a cohesive dialogue between you and your opponent. And at times his points will of course weaken your arguments. Yet you do not have to expressly admit this - instead accept the point and if possible try and offer another point that helps your case on the contentious issue. The exercise is about persuading your opponent to the values of the case whilst making allowances as far as your opponent convinces you they should be made.

Always construct a plan
You will not be able to conduct an intelligent and structured argument if your pan is anything but. The journey to a strong performance in a negotiation begins with the plan. We will look at the plan in more detail in the next section. For now it suffices to say that the plan should contain your client's prioritised objectives and your opponents likely objectives set out in the same way. Then you should formulate your arguments demonstrating your legal and evidential strengths on each contentious issue. Each contentious issue is really each individual sum being sought, of which there are often numerous per each negotiation. Try and put yourself in your opponent's shoes and then you will have a good idea of what he is going to argue. Create a running tab on each issue and attempt to outnumber your opponent's arguments as much as possible. Then know your plan inside out and be flexible in its application.

Try not to be overbearing
There is nothing that is more likely to prevent concessions from your opponent than an overbearing attitude. If your opponent feels like you are trying to bully them into doing something they will simply resist you, unless they are a pushover opponent. Again you have to make a judgment call. If you think that you can be slightly more aggressive then normal in a certain situation, then attempt to be, but do so in a manner that is not going to offend your opponent. You will be severely marked down if you neglect to listen and respond to your opponent.

Initially aim high
If you initially state your client's case as strongly as possible, then you are giving yourself more distance for your opponent to cover to get your position nearer to his. It is imperative that you present your case in a manner that will make it look as strong as possible in the first place. Do not make your opponents points for him - he may not have even realised some of them. To do so weakens your position, and that is for him to do not you. Indeed you can and should ignore some of you weaker points when presenting your initial arguments. Another approach is to identify them and attempt to gloss over them. However do not deny that they exist should your opponent spot them. Accept them and try and mitigate by formulating a counter point. After the exchange of arguments, if you are first to come upon with a figure, again aim high (this may conversely mean a low figure depending on your client position!), but say the figure as it was entirely reasonable - not a shot in the dark (which in reality it is). If you don't do this at first then you are giving yourself less room to make concessions. A poor opponent may even accept the initial figure.

Organisation is essential
Know the facts of the case inside out. You should have conducted a thorough analysis and evaluation of the case. Anything else makes you appear a weak opponent. If you can politely remind your opponent of a fact or piece of law that he forgets then that is going to put you in a position that bears control and authority. Far more so than a person that is fiddling around with his papers searching for information. Remember you will be marked on your overall presentation of the case.

Never forget your opponent is a fellow professional
Above all treat your opponent with the respect that should be given to a fellow professional. Do not bee rude, arrogant or patronizing to him. Remember this holds true even if you don't necessarily respect their character or there ability as a negotiator. Do not tell your opponent that you think his arguments are rubbish, or that they are fantasy. You can make him realise that his argument are weak by delivering your own strong points, not by directly belittling his, however weak they may be. You will be assessed on your professional conduct.

Summary
Thus, the process can be summed up as below. This demonstrated the process for each contentious issue, and is likely to be repeated several times during the negotiation.

Diagram: The process of trading points to assess the relative strengths of the parties' positions before coming to a monetary sum. Keep mind that at stage 3 - the weaker arguments can be targeted and rebutted too. Note after stage 6 a counter offer will often be made, and likely you will offer a sum nearer to that based on your judgment. Of course further counter offers could be made.

The Plan:

This is instrumental to delivering a competent performance. A strong well organized plan will give you the confidence to perform to the best of your abilities. It can also be looked at as putting marks in the bag before you even step into the negotiation room as it makes up a percentage of your final mark.

P - Preparation is the key
L - Legal and evidential arguments are essential
A - Always reference your plan
N - Never forget to prioritise your clients and opponents objectives and his likely arguments.

Preparation is the key
You have to know the scenario inside out as well as the law applicable to the scenario. Failure to do so is preparing to fail the negotiation. You should fully analyse and assess the case ensuring that you have identified as many of the legal issues as possible. Do this for each of the contentious issues. Some people like to take a sheet containing all the relevant information in with them. Case law can be used, but be careful in your selection. You don't want to waste your time giving your opponent a law lecture. Your opponent will be aware of the relevant law if is even near half competent. For example there is no need to back up Section 14(2) SGA with demonstrative case law. It is enough to state what can be implied in cases of satisfactory quality. However if you can find cases that have distinct parallels then these can based effectively. However there is no need to state the facts of the case, unless your opponent asks you to do so.

Legal and evidential arguments are essential
All the arguments that you put forward have to be catrgorised in legal and evidential terms. The two aspects will always overlap. An evidential point is nothing without attaching to a legal argument. Equally a legal argument without any evidence to support tit is superfluous. Not all the points that you selected have to be exceptionally strong. A weak point is better than none at all. And remember a weak point with strong presentation can be stronger than a strong point that is presented weakly.

Always reference your plan
Your plan is going to be of little use in the negotiation proper if it does not reference itself to each part of your brief. Not only may you want to read out excerpts from your brief, but your opponent may ask you where the information that you rely on is contained in the papers. (This is often a good sign he is not ware of it). If you don't know exactly where the information you rely on is contained not only does it make you look disorganised, it can make you look less than professional.

Never forget to prioritise your clients and opponents objectives and his likely arguments.
The exercise of negotiation can be thought of something of a chess game. Each concession is a piece and can be traded. You have your valuable pieces and your opponent has his. You also have your pawns and so does he. However unlike a game of chess the pieces may not be rated as the same value by both negotiators. Thus a matter that is imperative to your opponent may mean little to your client. Of course it is not necessary to divulge this to your opponent. You must prioritise your client's objectives and your opponent's likely objectives. You should mark out, based on your clients objectives the least/most you will concede on each point of contention. Also set out your initial position and remember to aim high. Finally structure your plan to set out the legal and evidential arguments of your case and your opponent's case. This will give you an idea of how strong your relevant positions could be and thus you can come up with reasonable figures for what is to be expected from each contentious issue. Sometimes in more complex cases it can be a good idea to include as summary of the facts and a separate section detailing the law in your plan.

Diagram 1: The planning process beginning with identifying your client's objectives. Note stage 6 is the setting of monetary targets.

Main page:Preface
Extract 1 : The skills and plan
Extract 2 : Practical exersice and claimant
Extract 3 : Transcript & Analysis

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