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