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BPTC Law Notes Alternative Dispute Resolution Notes

Negotiation Notes

Updated Negotiation Notes

Alternative Dispute Resolution Notes

Alternative Dispute Resolution

Approximately 357 pages

A collection of the best BPTC notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".

In short, these are what we believe to be the strongest set of BPTC notes available in the UK this year. This collection of BPTC notes is fully updated for recent exams, ...

The following is a more accessible 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:

NEGOTIATION

Ethos

Why negotiate?

  • out of court settlement motivated by fear and flexibility

    • Fears

      • maverick judge - lose a cut and dry case due to judge making unexpected judgment

      • unexpected turn of events during trial - witness could not perform

      • shrinking pie - the longer proceedings are, the more costly it is; the earlier you can settle the more there is to share about

    • Flexibility

      • parties can settle in ways judge would do very slowly

What are we trying to do?

  • negotiation is about analysis of risk

    • can't agree on what happened BUT can agree on what judge likely to make of what may have happened

    • insurance salesman analogy; settling for less cf selling insurance against getting even less (or paying more) if case went to trial

    • ID risks and price them

      • what are the risks of us not winning?

      • what are the risks worth?

      • what should client concede to obviate risk?

        • How much less you'd accept (than your pleaded case) depends on odds of winning or losing e.g. 25% chance of losing 25% reduction from pleaded case

    • try to persuade opponent that your analysis of risk is the correct one

Structure

Scenario 1 - usual for contract cases

  • character - clear pairing of distinct items of damage with distinct issues on merits

  • conclusion - go item by item and make real money offers based on risk of losing argument on relevant issues

Scenario 2 - usual for tort cases

  • character - big issue (normally liability) which affects all items claimed

  • conclusion - tackle issues and scale whole claim down by a percentage in order to reflect the risk that C might lose everything by failing to prove D as liable

Scenario 3 - mixed cases - e.g. nuisance and behavioural cases

  • character - general discussion on pervasive/global issues and a more detailed discussion on an item-by-item basis

  • conclusion - proposals will be made in terms of moderations to behaviour, reflecting the likelihood of the court stepping in to moderate the behaviour

Professional ethics

  • be clear on instructions, which issues they relate to + don't exceed

  • authority

    • usually have authority to negotiate on basis any agreement = provisional + subject to client approval

    • if only have authority to settle for over-optimistically high figure, negotiation unlikely to succeed

  • treat opponent with professional courtesy

  • don't

    • invent or misrepresent instructions, evidence or law

    • indicate client's offer final if isn't

    • conceal information that should be disclosed

    • threaten improper adverse consequences, or things unrelated to case

    • change position and deny having done so

Planning

  • Work out what items are on the table

  • Identify as neatly and simply what the issues are

  • Consider the right structure

  • Consider your ‘opening position’ – i.e. set the tone on whether you are going to be cooperative etc

  • Have a note of the arguments on both sides

  • Have a sense of what risks you want to point out to the other side

  • And those that you will acknowledge is made against you

  • Consider what ‘price’ you put on those risks

  • Seek concessions and make concessions logically linked to your risk analysis

  • Realise that not everything is about money, and some objectives are non-financial

  • Have a bottom line, and know when to walk away i.e. where you'll be better to go to trial

Consider the procedural stage the case has reached

  • very early stage

  • pre-action protocol stage

  • after issue of proceedings

  • case is being prepared to trial (court door)

STYLE AND STRATEGY

  • style - essentially the manner of presentation

  • strategy - overall plan for getting best outcome

    • can sometimes use style to mask style e.g. friendly style, aggressive strategy

2 main styles

  • cooperative - friendly, courteous, conciliatory, seeking to gain trust

  • competitive / confrontational - making demands, argumentative, emphatic language (extreme form can be perceived as bullying)

3 main strategies

  • cooperative

  • competitive

  • collaborative

Cooperative

  • focus is on reaching agreement which is fair and reasonable to both sides

  • info is shared

  • concessions come from both sides

  • strengths

    • likely to reach agreement

    • ...

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