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South Texas College of Law Houston
Kovach, Kimberlee K.

·         ESSAY
o   Prepare Answers to Anticipated Questions
o   Stay away from discussion about the legalities
o   Know what approach to use – integrative…
o   How do you get leverage? Come up with alternatives – create a BATNA (is there anything we can do to hurt them) and WATNA
o   Think of ideas and options knowing that we don’t want to get too stuck/anchored to where there isn’t flexibility
o   Apology?
o   Look for interests – value creation
o   Potential future relationship
o   Whether this is going to remain silent/confidential
o   In midst of negotatiation / planning neg / advising client of neg or not / ethical ramifications
o   Loss aversion – The proportion of people who will gamble to avoid a loss is much greater than those who would gamble to realize a gain. Negotiators may be adverse to offering a concession in circumstances where they view the concession as a sure loss
§ Overcome by
·         Negotiators indicating how much the other side will lose if it fails to act rather than stating how much the other side will gain if they do so
·         reframing to help a disputant re-conceptualize the solution and
·         emphasizing gains to both sides of the resolution and de-emphasizing the losses that the resolution is going to entail
o   Reactive Devaluation – when one side offers a particular concession or proposes a particular exchange of compromises, the other side may diminish the attractiveness of that offer or proposed exchange simply because it originated with a perceived opponent… a proposal is rated less positively when proposed by someone on the other side than when proposed by a neutral or ally… when one side unilaterally offers a concession that it believes the other side should value and the other side reacts by devaluing the offer this can obviously make resolution difficult.
§ Overcome by
·         Mediator taking responsibility for making proposals – allows them to accept as sensible a proposal that they might have rejected if it had come from their adversary
o   Anchoring – anchored on that outcome/number (often determined by the initial offers) and it is difficult to change them
§ Overcome by proposing alternatives, questioning it, use of outside authority, anything to invalidate to assist in moving the party away from the anchor to a place where options are considered
o   Optimistic Overconfidence – individual exaggerates perceptions of favoritism for one’s self widening the gap between the two parties
§ Try to evaluate the true probability of success as objectively as possible… might even conduct focus groups or ask friends to assess.
§ Reality testing, giving concrete examples of situations, asking specific questions, asking them to provide the basis/foundation for their beliefs
o   Endowment effect – people tend to overvalue the items they presently possess and undervalue what they are thinking of obtaining in exchange for those items
§ Overcome with an objective evaluation of the different aspects to be able to generate more realistic assessments
o   Regret Aversion – people do not like to make decisions that may be shown by subsequent developments to have been incorrect and cause them to suffer sincere regret
§ Overcome by the negotiator subtly suggesting that their nonsettlement alternatives may turn out to be worse than what they are presently being offered
o   Attribution Bias – People tend to overestimate the degree to which their own personal efforts contributed to beneficial results and underestimate their personal responsibility for negative things attributing them to situaional characteristics beyond their control
§ If individuals think their own actions have meaningfully contributed to negative results, they should at least minimally acknowledge their responsibility and offer sincere apologies to diminish emotional baggage
o   In Getting to Yes, Fisher and Ury describe their four principles for effective negotiation.
o   Their four principles are 1) separate the people from the problem; 2) focus on interests rather than positions; 3) generate a variety of options before settling on an agreement; and 4) insist that the agreement be based on objective criteria.
o   Separate the people from the issues: People tend to become personally involved with the issues and with their side’s positions. And so they will tend to take responses to those issues and positions as personal attacks. Separating the people from the issues allows the parties to address the issues without damaging their relationship. It also helps them to get a clearer view of the substantive problem.
§ I find this to be the most difficult to apply. Often, you are emotionally wrapped up in your side in a negotiation, so if your opponent is not respectful or is not cooperative, it is easy to make it a battle between the people rather than between the issues. Focusing on the issues is key to reaching a solution.
o   Focus on the parties’ interests, rather than their positions Your position is something you have decided upon. Your interests are what caused you to so decide. Defining a problem in terms of positions means that at least one party will “lose” the dispute. When a problem is defined in terms of the parties’ underlying interests it is often possible to find a solution which satisfies both parties’ interests.
o   Generating options: Wild and creative proposals are encouraged. Parties may suggest partial solutions to the problem. Only after a variety of proposals have been made should the group turn to evaluating the ideas. Evaluation should start with the most promising proposals. The parties may also refine and improve proposals at this point.
o   Use objective criteria: Allowing such differences to spark a battle of wills will destroy relationships, is inefficient, and is not likely to produce wise agreements. Rather than agreeing in substantive criteria, the parties may create a fair procedure for resolving their dispute. Decisions based on reasonable standards makes it easier for the parties to agree and preserve their good relationship. 
·         “this model is worth at least $15,000. You might be surprised, but let me explain. You see, this is one of only a few violins produced in the colonial US. We traced its origins to eastern Massachusetts, and we are almost certain that is dates to the 17th century”. … fabricated the entire story. Discuss ethics
o   Ethics – main concerns, schools of thought, impact on ethical conduct, when might want to cross/stay away from the line
o   We should adopt a separate code of ethics for lawyers engaged in mediation and other non-adversarial forms of ADR
o   Rule 4.1 – žIn the course of representing a client a lawyer shall not knowingly:
§ (a) make a false statement of material fact or law to a third person; or
§ (b) fail to disclose a material fact to

s do… their side will feel like a counter offer so you look back to them for the next move – aka first concession
§ Avoid disclosing important information that might come out through initial offers
·         Communication
o   The sending and receiving of messages and information
·         4 channels of communication
o   Facts
o   Feelings
o   Values
o   Beliefs
·         3 basic phases of communication
o   Listening       
o   Questioning
o   Two Way Discussion
·         Significance of listening
o   Gather Information
o   Encourage Additional Disclosures
o   Gain Further Understanding
o   Demonstrate Willingness to Learn
o   Implicitly Promote Reciprocal Listening
o   Model Skills
·         Rules for listening
o   1.Stop Talking
o   2.Make and maintain eye contact
o   3.Concentrate on what is being said – not on what you are going to say
o   4.Avoid making assumptions
o   5. Leave distractions behind
o   6.Use difference in rates to reflect, not wander
o   7.Be Patient
o   8.Take responsibility for the communication
o   9.Listen to what is not being said.
o   10.Listen to how something is said.
·         2 parts of each message
o   Cognitive or Content
o   Affective or Emotional
·         Functions of Questions
o   Get Information
o   Give Information
o   Gain Clarity
o   Cause Attention        
o   Start Thinking
o   Bring to Conclusion
·         Types of questions
o   Open – very
o   Open – focused
o   Leading
o   Closed Topic
o   Closed –very 
o   Yes – no
o   *Beware of compound
·         Additional components of communication
o   Restatements
o   Responsive Statements
o   Clarifications
o   Summarizing
o   Reflections
§ Content
§ Emotion
o   Use of Silence
o   Framing
o   Questioning
·         Additional factors which influence communication
o   Proxemics
o   Paralinguistics
o   Kinesics
·         Influence of factors on messages
o   Emphasize
o   Confirm
o   Change or Modify
o   Confuse
o   Conflict
o   Substitute
·         Information perception and processing
o   Visual                         
o   Auditory
o   Kinesic or Physical
o   Sensory or Emotional
o   Cognitive
o   Other
·         Common nonverbal signals
o   Craver pg 34-39
·         Nonverbal indicators of deception
o   List of potential indicators…
o   Craver 39-43
·         Information Exchange
o   ¨Listen, Listen, Listen
o   ¨Ask Questions
o   ¨Clarify
o   ¨Prepare Responses
o   ¨Patience
o   ¨Persistence
o   ¨Impact of Framing
·         CULTURE – page 259 Craver if time
o   Communication, Norms, Interaction, Ethics, etc
o   *Influences
§ ◦Knowledge
§ ◦Understanding
§ ◦Refrain from Stereotype
§ ◦Self Awareness and Analysis