Brief Guide to Preparing for Effective Negotiations

 

Introduction

There are five essential characteristics in preparing for negotiations:

1.      Reviewing the issues;

2.      Determining each party’s Best Alternative to Negotiated Agreement (BATNA) and Worst Alternative to Negotiated Agreement (WATNA);

3.      Determining both parties’ interests and positions;

4.      Defining the role of each participant in the negotiation; and

5.      Brainstorm possible solutions to the problem that can meet both sides’ interests.

These steps assist the participant in organizing their thoughts so that they can cooperate effectively in presenting their positions, interests and possible solutions in the negotiation. 

 

1. Reviewing the Issues

            The first step in preparing for a negotiation is defining the issues and determining what topics need to be discussed and resolved.[1]  In defining the issues, parties can determine what issues are particularly ambiguous and what type of legal arguments will be advanced bye ach party.  In turn, this will allow each party can see the merit of their case if litigation were to proceed; and so, it will allow the parties define their bargaining powers.  

 

2. Determining each Party’s BATNA

            BATNA is used to give a party confidence and security in knowing they have an alternative arrangement if the negotiation fails.  BATNA is a back-up plan for the party if the negotiation is not heading in the direction they had hoped.  Determining the BATNA prior to the negotiation will allow a party to set a point in which they would rather back away from the negotiation than to continue on.  BATNA can also be used as a negotiation lever.  If a party refuses to consider one proposed settlement, a party can use its BATNA to force the other party to reconsider its position.  Enhancing a BATNA will also allow a party to have more power in a negotiation because this will raise the bottom line at which a party is willing to settle.  Furthermore, raising a BATNA will increase a party’s confidence in the negotiation.[2] 

 

            In addition to generating a BATNA, parties should also consider the WATNA.  WATNA informs the party of what the worst possible outcome is if the negotiation fails.  Thinking about the WATNA will ensure that a party does not settle for an agreement that may result in putting them in a more detrimental position. [3]

 

3. Determining Each Party’s Interests and Positions

            Interests drive the positions that each party takes.  A deeper understanding of each party’s interests can help derive a solution that can be satisfactory to all sides.  Arguing over positions will lead to a dysfunctional negotiation because bargaining over positions is a zero-sum game whereby one party must always concede to the other.  It is possible that neither party will be satisfied with a negotiation argued purely based on positions.[4]  It is good practice that parties re-evaluate their positions and interests from time to time to ensure that they have not changed over the course of negotiations.[5] 

 

4. Defining the Role of the Lawyer and the Client in a Negotiation

            Prior to the negotiation, each participant should review their roles and behaviour, such as proper etiquette, in the negotiation.  Defining the roles of the participants in the negotiation will also include a discussion and review on strategies.  An effective negotiator will shift his/her strategy as the negotiation progresses if he/she is not getting the desired result.[6] 

 

Counsel may also coach the client on the ADR process before, during, and after the negotiation.  Coaching may include instructing the client on the negotiation or mediation process, the strategy that counsel aims to use and the counter-strategy that the other party will likely use.  Coaching will better prepare a client for negotiation such that any ground rules set by the mediator will not be a surprise.  Clients are reminded that mediation an informal forum for clients to communicate and work out their problems with one another and mediators merely make suggestions not binding judgments. [7]

 

5. Brainstorm on Possible Solutions

            Brainstorming allows the parties to move away from thinking about their position and broaden their perspectives to consider different options which may be acceptable to all yet preserve their interests.[8]  However, brainstorming is not necessarily a way of preparing for negotiation; it can also be used during the negotiation or mediation to help build trust with the adverse party.  In presenting brainstormed ideas, a party should also have supporting documents at hand to show how the idea can be reasonably implemented.[9]  While brainstorming allows a free flow of ideas to solve a problem, without presenting any justification, it can easily turn into a session where parties argue over why their proposed solution should be adopted.

 

Conclusion

These steps outlined above assist parties to organize their thoughts before going to a negotiation.  Having considered these factors before meeting with the other side, the parties will have a better understanding as to what they would like to achieve through the negotiation.



[1] Lewicki, R.J., Minton, J.W., Saunders, D.M., Negotiation, 2d ed., Chicago and Toronto: Irwin 1994.

[2] Scott, Gerald F., “The Shift to Alternative Dispute Resolution Should not be Difficult”, The Lawyers Weekly, vol. 15 No. 42, 15 March 1996.

[3] Desamour, Thelson, “Understanding the Limits and Benefits of Mediation”, The Lawyers Weekly, vol. 23 no. 44, 26 March 2004.

[4] Fisher, Robert; Ury, William; Patton, Bruce, “Invent Options for Mutual Gain”, Getting to a Yes, New York, Penguin Books: 1991

[5] Binder D.A., Bergman P., Price, S.C., “Lawyers as Counselors: A Client-Centered Approach”, New York Law School Review, 29, 1990

[6] Gifford, D., “Negotiation Strategy”, Legal Negotiation: Theory and Applications, St. Paul, West Publishing: 1989.

[7] Trimble, Jamie, “Preparation of File, Client Key Success use of ADR”, The Lawyers Weekly, vol. 17 no.13, 15 August 1997

[8] Fisher, Robert; Ury, William; Patton, Bruce, “Invent Options for Mutual Gain”, Getting to a Yes, New York, Penguin Books: 1991

[9] Keet, Michaela, Salamone, Teresa B., “From Litigation to Mediation: Using Advocacy Skills for Success in Mandatory or Court Connected Mediation”, Saskatchewan Law Review, 64, 2001: 57-98.