Negotiations for Lawyers

“The odds of a plaintiff's lawyer winning in civil court are two to one against. Think about that for a second. Your odds of surviving a game of Russian roulette are better than winning a case at trial. Twelve times better. So why does anyone do it? They don't. They settle. Out of the 780,000 cases filed each year, only 12,000, or one and a half percent, ever reach a verdict. The whole idea of lawsuits is to settle, to compel the other side to settle. And you do that by spending more money than you should, which forces them to spend more money than they should, and whoever comes to their senses first, loses. Trials are a corruption of the entire process, and only fools with something to prove, end up ensnared in them. And when I say prove, I don't mean about the case. I mean about themselves...” (Jan Schlichtmann).

"Ambulance Chaser" written by Steven Zaillian, from the book by Jonathan Harr "A Civil Action"

Objectives: To introduce a student to one of the most important lawyering skills.

This course provides thorough and professional practice in business oriented negotiations. It teaches the theory of negotiation and the skills necessary to become an effective negotiator, first of all analytical, learned in part through active exercises and simulations. The course introduces you to negotiation a strategy nd tactics.  It teaches how to prepare, how to identify acceptable negotiated solutions and best alternatives, and how to deal with difficult negotiators. Much of the emphasis is on international and cross-cultural negotiations, and often students from several different countries participate in the course. Emphasis is also on the role of the lawyer as a negotiator, and the lawyer/client relationship in the negotiations process. This course is equally useful for transactional lawyers involved in negotiations on a daily basis, for litigators who attempt to negotiate settlements, and for law students and recent graduates planning their careers in business law.

Prerequisites:

1) Good understanding of spoken and written English is strongly advisable since the language of instruction is English, and the great bulk of the course materials are in this language of international negotiations.

2) Compliance with attendance requirements. This is a practical skills course and its effectiveness pretty much depends on your home reading and class participation. Hence--the importance of MANDATORY ATTENDANCE. You can not learn swimming unless you plunge into the water. You will hone your skills in class and not at home. On your sofa you will read the theory and absorb some knowledge. In the class you will be listening, thinking, creating and doing.

3) Ability to get rid of “legal cretinism”.

Course Length:

36 in-class academic-hours (30 clock hours). Appropriate home reading and preparation time. (This course is considered as two unit class for the LL.M. program.)

Methodology:

The course is based on Socratic Method. Classes are comprised of 15-20 minutes of theoretical introduction, then practicing negotiation skills through problems, business games, and analysis of their solutions. Home reading and preparation is needed.  One major two-stage negotiation case will be done on two Friday nights (Law Firm Beauty Contest-negotiating retainer agreement with real Russian businesspeople and transactional negotiation together with some of them vs. another).  The focus is to give students opportunities to practice and refine their skills in a wide range of real life situations (sales, rental agreements, trade union conflicts, investment transactions etc.). During each exercises, the professor mixes and matches students with partners and counterparts, to allow students to practice negotiating with different personality types. Performance assessment is offered after each case negotiation.

Texts:

Materials are taken from a variety of sources (Russian, French, Japanese, Pakistani, and American).

Hornbooks will be provided.

GENERAL COURSE OUTLINE

Date	Topics to Cover
Class 1	Deal-Making and Deal-Breaking. Strategies. Defining and Quantifying your Interests and Objectives. Defining Goals and Limits. Checklist for Information Gathering. Working Sheet for Preparation. Basic Factors Affecting Negotiation. “BATNA”.
Class 2	What Are You in Negotiations? Classification of Negotiator Types. Understanding the Limits of Your Negotiating Authority. Defining and Quantifying the Likely Interests and Objectives of Other Parties to the Negotiations.
Class 3	Perception of the Opponent. Art of Listening to Hear. Skills of a Good Listener. Verbal and Non-Verbal Communication.  The Preliminary Stage (Establishing Negotiator Identities and Tone of Interaction). The Information Stage (Value Creation).
Class 4	Questioning and Answering Skills. Important Factors in Negotiations: Time, Place, Authority, Participants etc. The Competitive/Distributive Stage (Value Claiming).
Class 5	Public Speaking and Persuasion skills. Disputing Technique. Presenting Information. Using Visual Aid. Building Argument. Using Rhetorical Questions. Emphasizing and Highlighting Key Points. How to Control the Direction of the Discussion. How to Interrupt and Hold the Floor. Negotiating Games/Techniques/Ploys.
Class 6	Tension Between Empathy and Assertiveness. Playing in Minefields. Post Negotiation Assessment.
Class 7	Tension Between Principals and Agents. The Pros and Cons of Using an Agent. Tacit and Overt Advising. Psychological Entrapment. Expectations.
Class 8	Closing of the Deal. Value Solidifying. Value Maximizing. Issues to Consider in Drafting Definitive Documentation. Importance of Due Diligence during the whole period of negotiations. Playing several games at the same time. Combining Negotiations and litigation. Russian realities of negotiating procedure.
Class 9	Considerations in Requesting and Giving Representations and Warranties. Tactical Elements to Negotiations, as well as Common Pitfalls and Hurdles Facing Negotiators Who Are Conducting Bi-Cultural Negotiations. The Impact of Ethnicity and Gender.
Class 10	International Negotiations. Negotiation Ethics. Multilateral Negotiations. Coalitions. Devising a Constructive Concession Pattern.
Class 11	ADR. Mediation/Assisted Negotiation. The Challenge of Dispute Resolution. Control of Emotions of Both Sides. “Pause” Knob («Withdrawal to the Balcony»). Mechanisms for Dealing with Difficult Issues, and for Dealing with Difficult Negotiators. Separating Factual Differences/Disagreements from Emotional.
Class 12	3-hour Final Written Exam.

A more detailed syllabus will be available from the Pericles office when the dates for the course are approaching.