WHAT WE KNOW

TIT for TAT The most effective negotiation strategy is very simple

“Dancing” is inevitable Some rules of thumb

Who should blink first? The anchoring effect Is the population of Iraq more or less than 5M? What is the population of Iraq?

Who should blink first? The anchoring effect Is the population of Iraq more or less than 100M? What is the population of Iraq?

What level of offer to make? ZOPA INSULT ZONE CREDIBLE ZONE ZOPACREDIBLE ZONE INSULT ZONE 0K Party A 100K Party B

What level of offer to make? The Insult Zone First Offer INSULT ZONE *5K CREDIBLE ZONE ZOPACREDIBLE ZONE INSULT ZONE 0K Party A 100K Party B

What level of offer to make? Credible Zone First Offer INSULT ZONE CREDIBLE ZONE *15K *25K ZOPA *32K CREDIBLE ZONE *59K *41K INSULT ZONE 0K Party A 100K Party B

Making more than 1 offer Cons: Decision deferral Avoidance Option devaluation Non-compensatory decision making Dissatisfaction/regret

Making more than 1 offer Pros: Contrasts – allows comparisons to be made Extreme aversion – people avoid the extremes

Aspiration level The higher the better Women do worse

Flexibility with numbers Global – specific % Ranges Beginning with a particular digit As a measure of progress Splitting the difference

Flexibility with numbers DefendantPlaintiff Court docs Pre-conference 1st offer at conference Deadlock 0 20K 30K 30K (says won’t bid against himself) 200K 175K 150K 150K (says won’t budge)

Creating vs Claiming Value Creating value: Similarities and differences Co-operative/interest based approaches Power of empathy - demonstrating understanding without agreeing

Creating vs Claiming Value Claiming value: Positional approaches Power of assertiveness - being robust when appropriate to challenge or encourage reflection

Loss Aversion Losses loom larger in people’s minds than do gains If a party considers that they are losing something, more is required to compensate them/persuade them Change a party’s reference point - demonstrate gains that will be made from the proposal

Loss Aversion Which proposal do you prefer? Plan (1) will lead to a loss of 2 out of 3 jobs at the plant Plan (2) will have a 70% chance that 1 of the 3 jobs at the plant will be saved

Reasons for impasse Information Relationships Values Structural inequality Rights

Creating the right “emotional environment” Express appreciation Build affiliation Respect autonomy Acknowledge status Identify fulfilling roles

BATNA and WATNA Assess offers on the table Be open to reason – closed to pressure

Be creative! Analogy - concepts/ideas from other fields “Role reversal” (put yourself in their shoes) Challenging assumptions Brainstorming alternatives Reframing the problem Taking the perspective of the wholly unconstrained actor De Bono’s “six hats” technique

Beware of “Negotiation Bias” Over-confidence –test openness to disconfirming info Over-commitment –avoid extreme opening positions –ignore “sunk costs” Narrow/short-term focus –consider long-term implications Reactive devaluation –test reactions before offers are placed on table

Old Dilemma Dealing with tactics Don't panic! Recognise the tactic Name the strategy being used Pre-empt tactics e.g. check authority before negotiation starts Identifying common goals in an attempt to engage in problem solving Reality test to identify weaknesses Ask for reasoning - “why..?”

How do QLD lawyers negotiate? The Legal Negotiation Project: Launch February/March 2008 Negotiation simulations late March-May 2008 Invitations to all QLD solicitors and barristers Work in teams of 2 - against another pair Interaction with clients, teamwork and preparation

How do QLD barristers negotiate? The Legal Negotiation Project: An interactive IT component – lawyers can seek instructions, provide client with legal advice and seek settlement instructions Case study will include an ethical issue – Ian Hanger QC will settle Compare with “documents only” arbitrated decision – Ian Callinan QC will give

How do QLD barristers negotiate? The Legal Negotiation Project: Each simulated negotiation will be followed by a personal debrief - 3 hours Anonymised results will be published Awards will be given CLE points applied for!

WHAT WILL WE KNOW?