1. NEGOTIATION STRATEGIES
Laura Bruneau
Bruneau Group, Class Action Settlement Services
October 26, 2017

2. REFRESHER Common Types of Negotiation
TELEPHONE NEGOTIATION
(You & another party)
IN-PERSON
MEDIATION
(Mediator is present)
SETTLEMENT CONFERENCE
(Judge is present)

3. REFRESHER Common Types of Negotiation
Distributive Negotiation
Fixed pie
zero-sum
win-lose
Interest Based
BATNA
Good Faith
vs.
Bad Faith Negotiation

4. REFRESHER Common Types of Negotiation
Distributive Negotiation – Fixed Pie
Competitive negotiation used to decide how to distribute money
Get an idea of the other party’s walk away value
Your power depends on how clear you are about your goals, alternatives, and walk away values
Success also depends on how much you know about the other party’s case

5. REFRESHER Common Types of Negotiation
Interest based – Best Alternative To a Negotiated Agreement
BATNA = the best “Plan B” you can realistically go to if negotiations fail and an agreement cannot be reached
Figure out your no-deal options!
You should generally not accept a worse deal than your BATNA

6. REFRESHER Common Types of Negotiation
Good faith vs. bad faith negotiation
Good = implied pledge to deal honestly and fairly
Bad = taking advantage of the other party by engaging in deception or hard-bargaining tactics
False negotiator
Bad faith examples:
- Refusing to negotiate a legitimate claim.
- Refusing to negotiate a fair settlement when liability is obvious.
- Changing representatives solely for the purpose of delay once you’ve entered into negotiations.
- Failing to provide information which is obviously relevant to the claim.

7. REFRESHER Getting Yourself Ready
Ask yourself the right questions.
Is the case ripe for settlement?
What documents will be needed, do you have them all?
What is your reserve? Does it need adjusting?
Do you have the necessary authority?
What is your department’s culture with respect to settlements – hard-lined or totally actuarial?
What are your expectations?
Are you prepared (BATNA)?

8. Soft Skills Be a Good Negotiator
Transforming a zero-sum adversarial process into a negotiation geared towards problem solving and settlement.
Always strive to:
- Listen to learn – be an active listener
- Ask the right questions of the other side
- Build rapport & about being nice
- Build trust

9. Soft Skills Be a Good Negotiator
Active listening
Does not = waiting patiently for the other side to end a rant or nodding and saying, I understand, but…
Do proactively interrupt the other party to paraphrase what he has said
Do ask follow-up questions to better understand confusing assertions
Do acknowledge highly charged emotions or adversarial perspective lurking below the surface

10. Soft Skills Be a Good Negotiator
Asking the right questions of the other side
Instead of asking closed, opinionated questions, strive to ask open- ended, neutral ones aimed at information gathering and defining priorities
Asking open ended, neutral questions requires you to look beyond your own biases and open yourself up to being persuaded by your counterpart

11. Soft Skills Be a Good Negotiator
Building rapport and what about being “nice”?
Engage in small talk at the start of a negotiation but research shows that doing so can bring real benefits
Be polite and courteous at all times
We equate being collaborative with being nice. It’s OK to be nice, but a collaborative approach = more a bargaining approach than a personality trait
Sensing that other party may be angry inside, don’t try to appease the situation by overcompensating on concessions

12. Soft Skills Be a Good Negotiator
Building trust
Speak the other side’s language
Explain your deal requirements
Make unilateral one-sided concessions
Label your concessions
Manage your reputation
Try make party dependence a factor

13. Soft Skills Negotiating with Difficult People
The accidental hard bargainer has biases & emotions affecting decision making.
The reluctant hard bargainer has hidden constraints or interests
The intentional hard bargainer believes that hard bargaining is the most effective strategy

14. Soft Skills Negotiating with Difficult People
Intentional hard bargainers are seeking to convince you to agree to their demands.
Tread carefully and try:
To model good negotiating behavior throughout
To involve your opponent in finding a solution
To generate discussion
To avoid a “fight back or give in” mentality
“Breakthrough Negotiation”

15. Soft Skills Negotiating with Difficult People
When should you give up the fight against obstinance?
Negotiators often fail to recognize when it’s time to walk away from a negotiation dispute. The most common traps are:
Psychological trap
Fairness judgements
Focusing too much on sunk costs

16. Soft Skills Feeling Ganged Up On
Remember your power.
Regardless of its source, power has consistent and predictable effects – both positive and negative on negotiations.
Three (3) types of power in negotiation:
- BATNA power
- Role/title power
- Psychological power
The strategy of "enlightened self-interest"

17. Soft Skills Caucusing Key advantages include:
More open communication with mediator
Reduces tensions, therefore more flexible & creative
Privacy makes parties more comfortable to disclose information
Direct discussion with mediator
Be careful about how you may call for a caucus because it may leave the other party feeling a sense of mistrust or weakness on your part

18. Thank you for listening.