Fundamental Elements of the Negotiation Process
"... negotiations commonly follow a four-step path: preparation, information exchange, explicit bargaining, and commitment. ... Negotiation is, in short, a kind of universal dance with four stages or steps. And it works best when both parties are experienced dancers." 3
One of the interesting aspects to negotiation theory is that even the fundamental elements of the process are subject to varying opinions. The quotation above breaks the process down into four phases. I prefer three. Let's review the basics before moving on.
Phase I: Pre-bargaining Phase
1. Information: Learn as much as you can about the problem. What information do you need from the other side?
2. Leverage Evaluation: Evaluate your leverage and the other party's leverage at the outset. This is important because there may be a number of things you can do to improve your leverage or diminish the leverage of the other side. What will you do to enhance your leverage?
3. Analysis: What are the issues?
4. Rapport:4 Establish rapport with your opponent(s). You need to determine early on if your opponents are going to be cooperative; if not, consider employing a mediator as soon as practical.
5. Goals and expectations: Goals are one thing; expectations are something else.
6. Type of negotiation: What type of negotiation do you expect? Will this be highly competitive, cooperative, or something unusual? Will you be negotiating face to face, by fax, through a mediator, or in some other manner?
7. Budget: Every negotiation has its costs. Lawyers will avoid conflicts with their clients by discussing budgets sooner rather than later. Many times there are a number of choices for enhancing leverage. For example, you may enhance your leverage by taking several depositions, by adding parties to a law suit, by serving subpoenas on witnesses, or by hiring experts. Unless your client has unlimited resources, you will have to make some hard choices, which should be designed to give you the "most bang for your buck".
8. Plan: What's your negotiation plan?
Phase II: Bargaining Phase
1. Logistics: When, where, and how will you negotiate? This can be especially important in multi-party cases.
2. Opening offers: What is the best offer you can justify? Should you make it, or wait to let another party go first?
3. Subsequent offers: How should you adjust your negotiating plan when responding to unanticipated moves by your opponent?
4. Tactics: What sort of tactics will you employ? What sort of tactics is your opponent using on you?
5. Concessions: What concessions will you make? How will you make them?
6. Resolution: What is the best way to resolve the problem? Is there an elegant solution? Be on constant lookout for compromise and creative solutions.
Phase III: Closure Phase
1. Logistics: How and when will you close? At mediation or later on? Who will prepare the final agreement?
2. Documentation: Prepare a closing checklist.
3. Emotional closure: It's one thing to end a legal dispute; it's another to address the underlying interests and needs of the parties. If you neglect the latter, the agreement will probably not sustain.
4. Implementation: It's not over until it is over.
Some of these elements are self-explanatory and elementary
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