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Negotiation Notes

BPTC Law Notes > Alternative Dispute Resolution Notes

Updates Available  

A more recent version of these Negotiation notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our Alternative Dispute Resolution Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

ADR: NEGOTIATION PREPARATION Identifying the Objectives

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Ask client to provide clear and certain objectives. Ask client to identify priorities Use this list to analyse the case and ascertain what is realistically achievable.

Money Claims

* List of every potential head of loss - Consider future and past loss

* Reach a figure/range for each head of loss

* Consider associated matters:
* When should the sum be paid?
* Payment as lump-sum or in instalments?
* Interest? What rate and period?
* Any VAT or other tax implications?
Other Legal Rights

* How to address a claim for a remedy other than damages (eg. injunction or declaration)

* Can this be achieved through a written agreement? Consider wording. Future Relationship

* Establish client's objectives for ongoing relationship

* Is there a contract in existence for the relationship? What are its terms? Should they be varied?
Personal Objectives

* Eg. an apology Costs of Litigation

* Get a breakdown - identify arguments for each element of costs.

* Calculate costs up to date, and costs of negotiation itself. Opponent's Objectives

* Try to identify their objectives and priorities.

* Consider what may motivate them to settle

* Identify where objectives will be shared, compatible and where there will be conflict. Identifying the Issues

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Need to identify clearly which parts of the case and issues you are instructed to negotiate. Identify:
* Alleged/potential causes of action - elements
* Which elements are in dispute
* Who has the burden of proof
* Alleged/potential defences
* Remedies sought/may be sought
* Legal issues related to remedies (eg. causation, remoteness, mitigation)
* Any counterclaim
* Any additional non-legal issues

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Check list with client.

Importance of Procedural Stage of Case Very Early Stage

* Little information - probably only client's informal statement and any documents he has.

* Sufficient information exchange and discussion may be necessary before negotiation. Pre-Action Protocol Stage

* Pre-Action protocols require exchange of quite a lot of information - should be easier to assess strengths and weaknesses of the case.

* But - neither side yet committed to formal statement of case, therefore issues will not be formally defined.

* Advantage for flexibility,

* Disadvantage as less information about opponent's case.

* Possibility of issuing proceedings may be used as a tactic in negotiations. After Issue of Proceedings

* All statements of case have been served - clear picture of issues and allegations of fact.

* Further information will become available step-by-step as directions are given with regard to disclosure and inspection, then exchange of witness statements.

* Advantage: clearer picture of opponent's case

* Disadvantage: Opponent knows more about your case Case being Prepared for Trial

* Negotiation at the door before trial - last possible stage.

* Disadvantage: Costs greater

* Advantage: Pressure may focus parties. Relevance of Legal Context Identify:

* Potential outcome if case went to court - standard against which the parties should measure proposals for settlement

* Legal strengths of case - use as arguments in negotiation, with reference to principles not long legal argument
* Where case has legal strength, should not make significant concessions
* Use points of law tactically. Facts & Evidence

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Most negotiations turn wholly/partly on disputes of fact - decide how to deal practically and persuasively with each issue of fact and evidence.

Client's View of Facts and Evidence

* Full version of client's view of facts - later takes form of a sworn statement.

* Consider evidence and information supporting client's view

* Identify what other evidence may be easily available

* Consider relevance, weight and admissibility of evidence. Opponent's View of Facts and Evidence

* Close to trial will have sworn statement of opponent, before this must consider potential view

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by making predictions from evidence and client's view. Can ask for evidence which is not strictly available, though they are entitled to say no. Opponent may produce evidence which you have not seen as tactic in negotiation.

Dealing with Gaps and Ambiguities

* Focus on what is needed to deal with gaps in evidence/information relating to issues in dispute.

* Consider requesting information from client/opponent prior to negotiation - only if attainable at reasonable cost.

* Consider arguments to mitigate impact of gaps - integrate with strategy and tactics.

* Consider:
* Given disparity between 2 versions of events - which seems more plausible? Why?
* How can known facts be most convincingly put together?
* Which side most likely to convince a judge?
* Who has burden of proof? Will they be able to meet this standard?
* Is evidence admissible? Are witnesses credible?
Preparing to Deal with Facts and Information in Negotiation

* Ensure full familiarity with facts so can deal with them accurately

* Be ready to present facts on each issue from client's view.

* Be ready to use evidence obtained/easily obtainable

* Prepare how to use information known only to you tactically

* Prepare a list of questions to put to your opponent to get information in support of your case and to undermine their position

* Consider gaps in opponent's information

* Decide if any information should be kept secret in case negotiation fails. Figures

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Must be able to amend figures quickly and correctly. Most negotiators use a competitive strategy for figures. Steps in preparation:
* Identify heads of loss, and all relevant issues to each head
* Collect figures you need for each issue, identify how to deal with figures unknown
* Justify each figure you claim (remoteness, mitigation, betterment)
* Consider how to calculate (eg. for lost profit)
* Consider adjustments (eg. to take tax into account.)

Preparing Arguments

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First: identify where persuasive arguments needed - where issues most in dispute, weaknesses in evidence
* Promoting strengths of case and minimise weaknesses, may depend on coherent theory of case and of each issue.

* Identify three best arguments on each issue and work out how to present each in most persuasive way.

* Identify arguments which may be used to test you and to further opponent's case so you will be ready to respond to them/mitigate their impact where possible. Main Forms of Argument

* Arguments based on Application of the Law
* no need for law to be stated at length, more commonly brief reference to a principle and then a statement on how it should apply.

* Merit Based Argument

Buy the full version of these notes or essay plans and more in our Alternative Dispute Resolution Notes.