Negotiations 101: How to Negotiate in the 1-L competition TTU School of Law Board of Barristers September 25, 2013

Objectives: O To understand the nature of the negotiation competition. O To understand the scoring criteria.

Visit O Constitution and Bylaws O Contact Information O List of BoB Members O Also, attend the Advanced Negotiation Competition Final Round this Friday at 7:30 p.m. in the Lanier Auditorium.

Negotiation Logistics O Negotiation Problems O Check-in, etc. O Time/Break O Self-Analysis O Critique O Advancing O Professional Attire

Negotiation Ballot O Get a copy O Read it O Use it in your strategy O Availability after the rounds

Questions about Facts O BoB cannot interpret ambiguities in the problem for you. O Do not ask anyone except your partner how to interpret problem, e.g., you cannot ask your mom or a professor. O Problems are often vague for a reason. O Do not go outside the problem. O Can ask your coaching panel general negotiation questions, but not substantive questions about the problems.

Confidentiality O Competitors must maintain confidentiality to maintain fairness in the competition. O Do not discuss the problem in common areas. O Do not leave copies in your carrel. O Suspect your roommate. O A breach of confidentiality may result in an Honor Code violation.

Grievances O Grievances are a serious matter! O Must be submitted in writing by 9:00 a.m. the day following the round or occurrence. O Refer to the BoB Constitution for additional information.

Points O 10 points for competing O 5 points for each time you advance O 1 point for each prelim round won O There will be a cash prize for both Champions and Finalists. O $100 for each Champion O $50 for each Finalist

Penalties O Withdrawal at any time AFTER 24 hours before the first Preliminary Round results in an automatic forfeiture of 15 BoB competition points or 25% of your total points, whichever is greater. O Contact Vice-Chair Carly Castetter, as soon as possible when a conflict arises.

Judges You will know who your judge will be when you check in. Let a board member know immediately if you have a “conflict” with a judge. Read the Constitution and Bylaws for the definition of “conflict.”

Competition Overview O Two teams (each comprised of two law students) will negotiate with each other. O Both teams will receive some general facts for each negotiation round. O You will receive some confidential facts for your client. These will set out your client’s interests/goals and your authority. O Prelim Rounds – 50 minutes; Break Rounds – 50 minutes; Self-Analysis – 10 minutes to prepare and 10 minutes (for each team) to present its self- analysis. Brief commenting session after the round. O Prelims next week and advanced rounds the week of Oct. 7 th. Final round on Oct. 10 th.

Negotiations Planning O Knowledge of the negotiation problem, in general. O Factual knowledge, which includes knowing the basic facts, your client’s interests, and your authority (read very carefully!). O Knowledge of legal issue(s). O Use of agenda. (Cannot hand out any prepared materials.) O Opening offer. O Questions at the beginning to gather information. (Quality v. Quantity) O “Package” any negotiation issues?

Read the problem carefully! O What does your client really want? The facts usually explain your client’s priorities. O Pay close attention to the language. O “Mr. Smith must have an apology” vs. “Mr. Smith would also like an apology.” O “Mr. Smith prefers to pay no more than $50,000.” vs. “Mr. Smith refuses to pay more than $50,000 under any circumstance.” O Watch for contingencies, e.g., “Mr. Smith will pay $50,000, but only if Mrs. Smith agrees to give him Fluffy the poodle.”

Issues to Discuss During the Negotiation O Effective “agenda setting” can demonstrate negotiation planning. O Do not need to jump right into the agenda. O Before setting the agenda, each side should set the tone of the negotiation, e.g., who is your client? Positive relationship? O “Taking the table” does not matter (talking first does not equate to effective control). O If you set out the issues to discuss, you can ask the other side if they have any issues to add. O No need to get into an “agenda war.”

Opening Offer & Concessions O Figure out your authority for each issue. (Do not ask the other side, “Is that your bottom line?” And, do not misrepresent your authority.) O Decide on a “credible” first offer that will provide you with some room to move. O Do you want to make the first offer or do you want opposing counsel to make the first offer? O Concessions are normally larger at the beginning of the negotiation. O Have justifications for your offers because the other side may ask you how you can justify your offers. O Do not “double bid.” Get the other side to make a counter-offer. O If you do not have authority, simply tell the other side. You can always “take it back” to your client.

Flexibility in Deviating from Plans or Adapting Strategy O Adapt to the other side’s agenda, if necessary. O How do you react to new/unforeseen information? O How do you react to the other team’s unexpected strategy? Example: Lump sum compensation vs. itemized compensation. O Should you take a break? Allowed one 5-minute break that counts toward your total time. O Saying “flexible” in a round does not equate to actually being flexible.

Outcome of Session O Based on the negotiation and the self analysis. O Most negotiations involve multiple issues; parties do not have to come to an agreement on all issues. O Consider the progress you make during the negotiation (time management is important!). O When assessing outcome, you must take into account your client’s interests and goals. O Think about how concessions contributed (or not) to the outcome. O Do you know the actual outcome? O Summarize throughout the round and at the end of the round to make sure that everyone is on the same page. O Who is drafting the agreement? Any issues that you need to take back to your client? Do you need to meet again to wrap up any other issues?

Teamwork O Consider the following: O May have defined roles, but it’s the overall teamwork that matters. O Balance between the partners. O Partners do not interrupt each other. O Do the partners back each other up? O They should not contradict each other.

Relationship between the Negotiating Teams O Did the team have an appropriate strategy to help the teams have a good relationship? O Talking more does not equate to control or power... O Was a team member hostile, sarcastic, etc.? O Did the team ignore one of the other team members? O Was the team overly difficult? O If the other team was hostile, sarcastic, or difficult in general, did the team react appropriately in order to get the relationship back on track? O Will there be a future relationship between the parties?

Ethics O Teams cannot (1) misrepresent material facts, (2) exceed settlement authority, or (3) invent self-serving material facts. O Also, a team should not breach their ethical obligations of non-disclosure. O If a team does, then was the ethical violation a severe violation? O Severe violation may result in disqualification.

Self Analysis O Teams may sit or stand. O Teams should have some structure to the self analysis – they must answer the two questions so it’s best for them to state the two questions. O Balanced presentation? O Should not criticize the other team. O Should be reflective (substance should not be canned). O Use the self analysis to help the judges understand the round, e.g., why you started with a certain offer, why you made a big concession, etc.

Good Luck in the Competition!