LAWYER BARGAINING: NEGOTIATION SKILLS SYLLABUS
(UPDATED 6-3-15)
Intensive One-Week Negotiation Skills Course
Professor Susan Orlando Liu
Course: Law 651-001
Class Dates: Sunday June 28 through Thursday July 2
Class Times: 9 am to 2:50 pm (includes 1 hour lunch & 10 minute morning break)
Contact Information: sliu@american.edu or 202-746-2049
All reading assignments refer to Donald G. Gifford, Legal Negotiation: Theory and
Practice, 2d ed. (Thomson West 2007) and Getting to Yes, Fisher, Ury & Patton, Ed.
(Penguin Books). Due to the intensive nature of this short workshop, I encourage
you to read the assigned materials before the course begins.
Sunday June 28, 2015
Introduction to the Course
Negotiation Tactics: An Overview
Completing the Overview of Negotiation Tactics
Choosing Among Tactics
Assignment: Gifford, Chapter 1 & 2, pages 1-46.
Getting to Yes (read entire book before start of course).
In-Class Exercise: Gifford Technologies/Schwinn Consumer Electronics
Simulation
In-Class Exercise: John Sobieski/Carol Oats Real Estate Transaction
Monday June 29, 2015
Negotiation Planning
Initial Orientation Tactics
Assignment: Gifford, Chapter 3 & 4, pages 47-97.
In-Class Exercise: Volkov Negotiation Planning Simulation
In-Class Exercise: Active Listening Exercise
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Tuesday, June 30, 2015
Communication Skills
Information Bargaining
Initial Proposals
Assignment: Gifford, Chapter 5 & 6, pages 98-144.
Read brief handout on Lead Paint Poisoning Initial Proposal and
along with assigned team members, prepare either "initial
proposal" or "response to proposal" as assigned.
In-Class Exercises: (1) Question Form
(2) Avoiding Information Disclosure
(3) Lewis Lead Poisoning Initial Proposal Simulation
(4) Volkov/Banting Brainstorming Exercise
Distribution of First Major Negotiation Simulation
Wednesday, July 1, 2015
Narrowing of Differences and Closure: Competitive and Cooperative Tactics
Narrowing of Difference and Closure: Problem-Solving Tactics
First In-Class Negotiation Simulation and Class Discussion
Assignment: Gifford, Chapter 7 & 8, pages 145-178.
In-Class Negotiation: OCN HSN
Assignment: Negotiation Tactics Critique Paper (5-7 pages) (Professor to
provide details)
Distribution of Second Major Negotiation Simulation
Thursday, July 2, 2015
Negotiation Counseling
Second In-Class Negotiation Simulation and Class Discussion
Assignment: Gifford, Chapter 10, pages 189-206.
In-Class Negotiation: Whitmore Rice
Assignment: Negotiation Tactics Critique Paper (5-7 pages) (Professor to
provide details)
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REQUIRED TEXTS
1. Getting to Yes, Fisher, Ury & Patton, Ed. (Penguin Books)
2. Legal Negotiation: Theory and Practice (2d ed.), Donald G. Gifford, (Thomson
West 2007) (Make sure to purchase the blue covered book. It is available from
Amazon used for $38, new for $77 and new to be rented for $26).
COURSE DESCRIPTION AND REQUIREMENTS
COURSE DESCRIPTION
This intensive one-week course is about the theory, process, skills, and ethics of negotiation.
Through simulations and discussions, you will learn to negotiate using various bargaining
strategies and styles and negotiation skills, tactics and techniques. The simulations will
provide practical, hands-on negotiation experience in various areas of law. The goal is for the
students to gain experience and confidence managing difficult or stubborn opponents,
developing effective themes and strategies to get better results for your clients, and becoming
a more persuasive, ethical negotiator.
COURSE DESIGN
This course is premised on the belief that there are principles, models and theories of lawyer
negotiation that are critical to an understanding of negotiating skills. The readings and
discussions in this course will attempt to expose you to this body of knowledge. However, the
only way to understand the theories and skills is to actually practice it so this course each
student will be given the opportunity to practice these skills by negotiating simulated cases
against and/or with other students in the course.
Students will be required to conduct two (2) major negotiations. Both of these negotiations
will be conducted in class and students may be recorded on a DVD for purposes of self or
peer evaluation and critique (depending on availability at clinic).
COURSE REQUIREMENTS
1.
The required course readings are set out in the course syllabus and students are expected
to read and be familiar with the assigned materials for purposes of class
discussion and for fulfilling the journal requirement.
2.
THE JOURNAL REQUIREMENT
One of the requirements of this course is the keeping of a reflective journal, reflecting your
preparation and analysis of most of the simulated negotiations to which you are assigned. The
journal should be a document through which you describe and analyze your goals and
preparation for each negotiation, assess your performance with respect to those goals, and
integrate what you have learned in light of the class discussions and the readings.
First major in class simulation: Wednesday, July 1, 2015
Second major in class simulation: Thursday, July 2, 2015
For each simulation: Prepare journal 5-7 pages
Both journals due: Friday, July 24, 2015 by 5:00 pm via email to Professor Liu
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3. Grading: 60% Journals and 40% Class participation.
Grades are not based on your performance in the simulations themselves, or the results that
are achieved. I want to encourage you to experiment with different ideas and techniques in the
negotiations without fear of failure or concern about grades. The focus of evaluation will be
on your preparation and analysis of your preparation, the description and analysis of your
performance in the negotiation session, reflection on the negotiation experience and
performance, as well as your participation in class discussions and reflections on the
discussions and readings, as expressed in the journal.
4.
Because the good faith participation of all members of the class is essential for this
teaching method to work, you are expected to come to every class, to participate in class
discussions and to have done each simulation prior to the time it is discussed in class. Failure
to do so will have a substantial impact on your grade in the course. Unavoidable absences
should be communicated to me as far in advance as is possible.
JOURNAL CONTENT SUGGESTIONS
I. Pre-Simulation Entry
1.
Preparation: What steps have I taken to prepare for this session with opposing counsel?
Have I explored and adequately articulated the most effective themes and theories available to
me? Based on this exploration and evaluation, what is the most effective theme to present?
2.
Information: What information do I need from my opponent and what information that I
have do I need to protect? How will I obtain the information I need? What questions will I
ask? (Those questions should be set out in the journal.) What choices
do I have in the kinds of questions I ask and which questions will yield the most information?
How will I protect information from being disclosed? How will I respond to questions
seeking information I want to protect? (Like the questions you plan to ask, these responses
should also be set out in the journal.)
3.
Client’s Interests: What are my client's underlying interests and what are my
opponent's? What interests are essential, important or desirable for my client and my
opponent? What interests are shared, independent or conflicting with my opponent?
4. BATNA: What is my Best Alternative to Negotiated Agreement (BATNA)? What is my
opponent’s BATNA? What are possible solutions to achieve my client’s goals?
5. Strategy/Style: What negotiation model do I wish to adopt and why is it the most
appropriate for this negotiation? How can I be most persuasive? What style do I wish to
adopt? Why that style and not another one? What negotiation strategy and style do I expect
my opponent to adopt?
6. First Offers: Should I make the first offer? What will it be? Will I gain or lose anything by
making the first offer? What did I consider in deciding to make the first offer or to obtain the
first offer from my opponent?
7. Bargaining Range: What is my bargaining range? What is my opponent's range? What is
my target point and resistance point? What are my opponent’s target point and resistance
point?
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8. Counteroffers/concessions: What is the order of offers I anticipate from my opponent?
What commitment points do I want to establish and how will I justify them?
9. Legal and factual leverage: What leverage points do I foresee both for me and for my
opponent? How will I neutralize my opponent's leverage? What concessions am I willing to
make and how will I justify them?
II. Post-Simulation Entry
1.
The Bargaining Process: Provide an overview of the entire negotiation.
2.
Preparation/Theme: In light of my performance, what could I have done better to
prepare? To what extent did the negotiation go as I expected? What explains the difference?
What was my theme? How effective was it?
3.
Information: Did I get the information I needed to refine my bargaining position? Did I
leak information I wanted to protect? How could I have better controlled the flow of
information? What kinds of questions did I use to obtain information? How effective were
they? Did I obtain information that my opponent wanted to protect? What did I do to keep
my opponent from obtaining information I wanted to protect?
4.
Agenda: Who controlled the agenda of the negotiation? Did my pre-planned agenda
anticipate what actually occurred in the negotiation? How did the agenda contribute to
the result?
5.
Strategy: Did my overall negotiation plan work? How could it have been
different/better? What tactics did I employ and to what success? In what ways did my
opponent's goals and strategies surprise me?
6.
Persuasion: Was my case theory persuasive? Was I effective in persuading my
opponent? Did I use threats or inducements to persuade my opponent? What other available
resources did I use to persuade my opponent?
7.
Style and Model of Negotiation: Describe the style and model employed by each
negotiator. Was my negotiation style and model effective or not, and why? Was my
opponent's style and model effective? Why? Were the styles and models utilized by each side
complementary or clashing? Were the style and model I employed complementary or
inconsistent? How did this influence the negotiation?
8.
The Bargaining Process Revisited: Offers: Who made them? When? Why?
Concessions: Describe the timing & pattern of concessions. Convergence: How did it occur?
9.
Ethics: Did any ethical issues arise? Should I have anticipated them? How did I deal
with them? What was the relationship between any ethical issues that arose and the result?
10. Results/Progress: To what extent did the results I achieved satisfy my client's needs and
goals? Am I satisfied with them? Have I progressed in my ability to negotiate? What do I
need to do in order to improve? What did I learn from this simulation?
11. Outcome of Negotiation: Did the outcome serve my client’s needs? Was the outcome
better than my BATNA? Did I effectively advocate my client’s interests? Was this the best
solution out of all available options that were available? Was it legitimate—no one feels
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taken? Was it realistic---commitments are realistic, clear and operational? Did the outcome
result in an enhanced working relationship or an agreement to negotiate further?
12. Self Analysis: If I faced a similar situation tomorrow, what would I do the same and
what would I do differently? How well did my strategy work in relation to the outcome?
How did I do compared to my opponent and to others in class? What would I like to do
differently in future negotiations based on the negotiation issues discussed in class and by the
readings?
13. Results and Progress: Have I achieved the results to the satisfaction of my client and
what do I need to do to improve the results for my client in future simulations?
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