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Better Negotiations for Government Lawyers

July 19, 2016

1:00 - 2:30 Eastern

American Bar AssociationGovernment and Public Sector Lawyers Division

Cosponsored by the ABA Section on Dispute Resolution

Panelists Joanna M. Jacobs, Director, Office of Dispute

Resolution at U.S. Department of Justice, Washington, D.C.

Joan Stearns Johnsen, Legal Skills Professor, University of Florida, Levin College of Law, Gainesville, FL

Richard Melnick, Esq., Associate County Attorney, Montgomery County Attorney’s Office, Rockville, MD

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Who Is Here?

Government Lawyer Non-Lawyer Non-Government

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What Do You Negotiate?

Transactions Lawsuits

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Negotiation

A process by which two or more people communicate to solve a particular problem over which they have competing needs, interests, and desires.

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Communication Cornerstone of

Negotiation=Communication

-Written -Verbal -Non-Verbal-Use ALL senses to obtain information, and glean true meaning behind communication

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Ten Fluid Steps to a Negotiation1. Preparation and Planning2. Ice Breaking3. Agenda Control4. Informational Bargaining5. Proposals; Demands; Offers6. Persuasion/Justification7. Concessions8. Crisis—Resolution or Deadlock9. Conclusion10. Memorialize

= AGREEMENT/CONTRACT 7

Three Styles of Negotiation

True Problem Solving

Cautious Problem Solving

Adversarial

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Theories of NegotiationDistributive v.

Integrative Fixed pie v.

Expanded pie

Competition v. Mutual Gain

Adversarial v. Collaborative

Positional v. Principled

Positions v. Interests

One solution v. Multiple Solutions

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Anticipation NEEDS- Price below which you would “walk-away”

INTERESTS- A party’s concerns about an issue-It isn’t want they want; it’s why they want it-Remember the “orange”

DESIRES- Best outcome

INFORMATION -You will/will not disclose-You seek from the other side-They may seek from you-They may/may not wish to disclose 10

Types of Questions Open-Ended– (“Explain what you did on the day of

sale;” “What is on your mind?;” “Why?”) Seeks narrative.

Narrow- (“So, how did you learn the item was for sale?”) Focuses more deeply into the subject.

Leading- (“Did you know the money was counterfeit?”) Seeks “Yes” or “No” response.

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Polling Question #1

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When Preparing and Planning a Negotiation . . .

A. One should do so only at the beginning of the process. B. Parties should never disclose

negative information to the opponent. C. Parties should consider only info that

is known prior to the negotiation. D. None of the above.

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Pete Plaintiff v.Debbie Defendant

Freak snow storm on May 2, dumps 10 inches of snow.Debbie rear ends Pete who is stopped at red light.

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Fact PatternDebbie, who works for City Dept. of Health, is driving south 25 mph on Michigan Ave. in city vehicle on work related business.Debbie was about to place a cell phone call in violation of law.City contractor had not yet plowed the streets.

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Defendant Hits PlaintiffPete, an unemployed single father of two young children with no medical insurance, was on his way to job interview. Pete is stopped at red light when hit by Debbie.

Pete is badly injured and his 2005 Volvo is totaled.

Pete discovers yoga. Recovers. Finds job in New Town, Old York. Wants to move.

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Damage Claim

Claim of $80,000 for Pain and Suffering Medical Bills = $8,000 (ER visit, 3 visits to

orthopedist and 6 visits to PT) Rental Car = $5,000 Old Volvo (totaled) valued at $7,000

Total Claim of $100,000

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Immediate Needs

Yoga certification class= $1,000 Anticipated moving expenses=$5,000 Needs new car=$10,000 for used 2010

Subaru Gifts to friends =$500

Total: $16,50018

Polling Question #2

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Where Would You Open?

As Pete’s Attorney, what would be your initial demand? A. $100,000 B. $125,000 C. $ 40,000 D. $300,000 E. $150,000

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Anchoring

The human tendency to rely on the first piece of information offered, which tends to bias expectations

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Entrenchment and Reactive Devaluation

Entrenchment – locked into a position due to the amount of time and effort already expended

Reactive Devaluation – the human tendency to reject a proposal simply because the opponent offers it

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Debbie’s Authority Debbie has a dilemma. She may have

been on her cell phone in which case the city will not indemnify her. If Debbie was on her cell phone, the

insurance company will only pay $50,000 towards the cost of defense. If Debbie was not on her phone,

insurance will cover up to $100,000 per incident including attorney’s fees.

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Polling Question #3

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If Pete Plaintiff Opens at $150,000, Where Does Debbie Defense Counter?

A. $10,000 B. $ 25,000 C. $ 8,000 D. $ 30,000

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Zone of Potential Agreement (ZOPA)

Bargaining Zone/Reservation Point – the respective minimum or maximum amounts each negotiator will accept before walking away

Where parties are better off than no agreement at all.

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Negotiating Range

Best Alternative to a Negotiated Agreement (“BATNA”)

Offer = Only make or accept if the terms are better than the BATNA. Otherwise, you are better off going with what you perceive to be a better alternative to a negotiated agreement.

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Polling Question #4

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What is the ZOPA: Zone of Possible Agreement? A. Between $20,000 and $80,000 B. Between $30,000 and $100,000 C. Between $40,000 and $ 120,000 D. Between $20,000 and $ 50,000 E. Between $30,000 and $ 75,000

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Information Risk Short-term- Releasing

information that harms your position

Long-term- Losing credibility for not releasing information

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Restraints Time Pressures

Lack of Authority

Audiences- stakeholders in and out of the room

Extreme Demands

Threats

Not Allowing Self to be Persuaded

Lack of Trust31

Challenges and Opportunities Personalities Knowledge Emotions Creativity Integrity Power Control Effective Questions

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Value, Fairness or Reasonableness

Influences- Parties; Relationship; Society

“Jury Question”

Through informational bargaining, consider and use objective criteria to persuade or be persuaded

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Polling Question #5

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What are the best practices for memorialization of an agreement?

A. Insist on drafting the agreement yourself (terminate if denied). B. Try to create an agreement from

memory. C. Trust your opponent will get terms

right, no need to review. D. None of the above.

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Memorialize

Demand letters Share boilerplate language Emails or letters after meetings Memorandum of Understanding (MOU)

that you draft Read MOU in full each time it comes

back to you with revisions

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To Recap: Ten Fluid Steps 1. Preparation and Planning2. Ice Breaking3. Agenda Control4. Informational Bargaining5. Proposals; Demands; Offers6. Persuasion/Justification7. Concessions8. Crisis—Resolution or Deadlock9. Conclusion10. MemorializeAGREEMENT/CONTRACT

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QUESTIONS???

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