Multi-Party Negotiations

Gaining Analytic Command of Complex NegotiationsI. Outline the underlying interests of the key parties.

a. Draw a diagram showing the key parties to the negotiation.

b. Hypothesize about -- and list – their most important underlying interests.

c. Prioritize their interests and in a rough way, try to weigh their interests.

II. Do any of the other parties have common interests with your client? Can you use these interests in designing possible solutions benefiting your client?

Gaining Analytic Command of Complex Negotiations

III. Do you see differences between the parties that you can use to create trade-offs benefiting your clients.

IV. Succinctly summarize the leverage, strength, BATNAs and weaknesses of the key parties.

V. Spend a few moments looking at the most important interests of the key parties, and in a very uncritical way brainstorm possible solutions.

VI. Can you see the direction of possible solutions?

VII. Which ones benefit your client the most?

Dorothy Chandler Ranch:The Primary Interests of the Key Parties

Plaintiffs

Environmental Groups Governments HomeownersSequoia Club YIKES

1. Parkland

2. Native Grasses

3. Malibu Creek

4. Bat Caves

5. Downsize

1. No Development

2. Delay Development

3. Downsize

LA CNTY, LA City, Malibu, Calabasas

1. Traffic Mitigation $

2. Air Impacts/$

3. Reduce Size

Individual Interests:

1.

Big, Little

1.Dump

2.Traffic

3.Downsize

4.Particulates

Defendants

Chandler Ventura County

1. $$$$ 1. Prudent Development

2. Reputation 2. Maintain some open space

Five Tools for Gaining Analytic Command of Complex Negotiations

Tool # 1 Simplify the dispute– Diagram the key parties and their key interest on one piece of paper.

Tool #2 Focus on underlying interests not positions, and prioritize those interests.

Tool #3 Any place you can find mutual interests, use them.

Tool #4 Take advantage of differences in the parties tastes, preferences, priorities and expectations to design solutions and trades.

Tool #5 Assess the leveage, BATNAs and vulnerabilities of the parties.

Try to Build a Consensus What Do We Mean By Consensus

Building? A process for seeking unanimous

agreement, involving a good faith effort to meet the interests of all stakeholders.

Consensus Building Essential Steps

STEP 1: Starting the Process Initiate discussion about how to begin a

consensus building dialogue and process. Identify appropriate stakeholder

representatives. Begin to asses the conflicts.

Consensus Building: Essential StepsSTEP 2: CLARIFYING RESPONSIBILITY Specify role of facilitators, mediators and

recorders. Set rules regarding the participation of

observers. Set agenda and ground rules. Determine extent to which case will serve as

precedent for the future.

Consensus Building: Essential StepsSTEP 3: DELIBERATING Strive for positive communication. Separate inventing from committing (in other

words, one should be able to brain storm and suggest options without the group thinking that they are committing to that option).

Create subcommittees and seek expert advice. Use a single text procedure (avoid

attribution– this is Mr. Smiths Deal).

Consensus Building: Essential Steps

STEP 4: DECIDING Try to maximize joint gains. Use contingencies. Follow agreed-upon decision rule (seek

unanimity; fashion package that all can live with).

Keep a record.

Consensus Building: Essential Steps STEP 5: IMPLEMENTING AGREEMENTS

Seek ratification by constituencies.

Provide for monitoring of agreement.

Provide for adaptation to changed circumstances.

How Do We Know Consensus Has Been Reached?

When (almost?) everyone agrees they can live with the suggested proposal after every effort has been made to meet the interests of all stakeholding parties. Most dispute resolution professionals believe that groups should seek unanimity, but we often settle for an agreement that goes as far as possible toward meeting the interests of the stakeholders.

What Are the Rights and Responsibilities of Participants in Consensus Building Process?

Participants have a difficult time when they are asked to sacrifice their interests for the sake of agreement. Be careful of this. Remember your BATNA.

Everyone should try to propose solutions that will meet everyone else’s interests as well as their own.

The definition of success must be clear at the onset!

Difficult Negotiations

Difficulties in Negotiations There are a lot of reasons why cases do not

settle or a deal is not completed. The reasons they do not settle is often not

because of the facts and the law; or because of contract terms.

Your job is to analyze the negotiation circumstances and give your client the option to settle or enter a deal if they want.

Role of Perception Subjective. Always check your views,

opinions and analysis of your position!! One’s view of fairness. (Barry Bond’s

homerun). Be very careful of your client's (and your

own) perception of fairness.

Psychology Traps; Barriers to Resolution These are some of the most difficult issues to

deal with for the client and the negotiator. Selective Perception (you see what you want). Optimistic Overconfidence (we over value

our cases, we will win more than we do). Loss Aversion (I already have 25 grand in

legal fees… Lets just roll the dice).

Litigation Escalation Discovery makes us overconfident. We want to get more certainty.

My client wants all the depositions before she can decide (I ask why?)

We spend too much money on discovery (a bit self serving).

It increases “loss aversion”. Try to settle early.

Emotions Emotions drive negotiations: you cannot avoid

them…deal with them. Become aware of your emotions, your clients and

the other sides (lawyer and client). Do not let a negative relationship with the other

negotiator get in the way of your clients chances of settlement.

My experience: Always be professional, be courteous, do not become vindictive and it is better to build relationships rather than break them.

Watch out for many of the problems. Overly competitive Complexity of issues Setting an example Different perceptions Different case

evaluations Fixation on a single

position Hidden agendas

Large number of parties

Past history (baggage) Poor communication Reputations Stereotypes Strategic irrationality

(fear of looking weak)

More issues and problems Timing Failure to listen to the

other side Insult, humiliate, threat,

commands Backwards step Failure to understand

your BATNA and theirs Matter of Principle

Overconfidence Over investment in

case and not turning back (loss aversion)

Principal Agent issue: Incentives for lawyers not to settle

Critical facts in dispute

Overcoming Barriers Try to see these barriers and over come them. Sometimes a mediator will help, use a new

person to negotiate, new ideas, new thinking etc.

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