Mock Negotiation
By Penny-Ann Lupton and Galyna Tsizhman
For our mock negotiation, we had scenario 2 with Luis Romero, the alleged hit and run
victim. Galyna and Penny-Ann acted as paralegals on behalf of Luis Romero, while Mark
and Oliver operated as the opposing party and Wahida was the facilitator. This written
portion of the assignment is from Galyna and Penny-Ann’s perspective.
We approached this negotiation with the intention to work collaboratively with the
opposing party. We attempted to understand the opposing side’s viewpoint and interests
before coming to the table. We were also cognizant or our client’s interests. Our client was
injured in the accident. His main injury was a broken arm, but he also suffered a minor
brain injury and concussion. The client’s primary concern was his immediate ability to pay
his bills. He was off work, late on rent, and on the verge of homelessness. We needed to find
a quick resolution, as per our client’s request. Foremost for Luis, was compensation for lost
wages during his 12-week recovery, and the cost of rehab for his broken arm. We also had
to be mindful of our fee. Although he did suffer headaches and other minor symptoms for
his brain injury, the prognosis was good and he was expected to recover.
With these facts in mind, we determined our BATNA and WATNA. If the negotiation broke
down, our best alternative was a neutral evaluation. The worst alternative for our client
was a trial. It would be too time consuming and expensive. Our opening bid during
negotiations was $100,000. As we indicated to our opposition, we were able to support this
proposal following a similar award for pain and suffering damages awarded for
comparable injuries in Doxtater v Farrish, 2014 ONSC 4224. However, our client was
mainly interested in lost wages, not recovering a significant award for pain and suffering.
Therefore, our resistance point was a settlement of $12,000, which would have covered his
wages for the 12 weeks of recovery time, rehab costs, and our fee. Our target point was
$20,000, as we were hoping to get the client some damages for pain and suffering. Our
target point also took into consideration the weaknesses of our case. Therefore, our
bargaining range was $100,000 to $12,000.
As representatives on the behalf of our client, we had his best interests at heart. To the best
of our abilities, our goal was to reach a favourable agreement for Luis, without proceeding
to a trial. After candidly reviewing the facts of our case, we feared we did not have enough
evidence to prove our client’s injuries occurred as the result of a motor vehicle. Further, the
fact that he was intoxicated affected the credibility of his testimony. These flaws forced us
to consider making concessions we may not have made otherwise.
The interest of an insurance company is obvious: to pay as little as possible. Money is
always the bottom line. To that end, it was in the opposing party’s interest to settle the
issues during the negotiations, despite the lack of direct evidence a motor vehicle was
involved. Our goal was to accommodate both parties’ interests and come to a consensus.
Reaching this objective would prevent our client from possibly losing the case at trial,
which may have worsened his financial situation. We also had to consider all consequences,
such as the possibility of having to pay the costs of the other party if he lost. Regardless, we
kept our WATNA and resistance point in mind during negotiations. The opposing party
most likely feared a trial as well. Insurance companies are often painted as villains to juries,
Mock Negotiation
By Penny-Ann Lupton and Galyna Tsizhman
and the expense of a trial was not in the best interest of either party. We used this
assumption during negotiations.
One of the most challenging aspects of the negotiation was separating the parties from
their positions. The insurance company was adamant there was no proof of the existence of
a motor vehicle. Further, if there was a vehicle, the plaintiff did not make a reasonable
attempt to identify it. Our position was that our client’s testimony was evidence. We found
preparing well for the negotiation strengthened our ability to separate the other party from
their position. We provided case law from four cases on point with ours in which the
outcome of the trial was in favour of the plaintiff. The judge in two instances found there
was a motor vehicle involved based solely on the testimony of the plaintiff. The other two
cases addressed the plaintiff’s reasonable efforts to ascertain the identity of the driver. The
courts consistently found that the plaintiff must have withheld information to impede the
investigation. Ultimately, we did not have to convince the other side that our position was
correct, only that we made a strong argument and the insurance company could lose a trial.
Research and organization made it easier to get the opposing party to focus on their
interest in avoiding a trial, rather than their position. We had them concur that we would
not agree in negotiations on whether a vehicle was involved, but they did acknowledge that
a trial could go either way and was in neither party’s best interest.
Initially, it was hard to keep this conversation civil since both sides were passionate about
their own needs. Even though our opposing party was firmly set on the fact that our client
experienced a fall as a result of alcohol, we managed to move past that issue and work on
the settlement. Another challenging factor was convincing the opposing party that our
client’s drinking was not an aggravating issue. The fact that he had a few drinks, by his own
admission, did not prove he was intoxicated and did not change the fact that he was
injured. The opposing party attacked our client’s character. Our side, however, made a
point that our client’s character had nothing to do with the issue. Also, it would have been
up to a judge to assess the situation based on the evidence provided. Since we agreed to
avoid a trial, we should leave the question of character out of the negotiations. The
opposing party agreed with that viewpoint and was ready to work on a settlement.
By asking questions such as “What would you do in this situation?” we attempted to
generate more objective criteria for resolving the issue. Our intention was to have the
opposition identify with our client. This tactic helped, and Oliver admitted he sympathized
with our client. This began to move us in a more positive direction. We wanted to show the
other party that it was in both our interests to walk out happy and satisfied from the
negotiations. Therefore, we stressed that we are “friends” here working on one problem to
satisfy both parties. As a result, the negation progressed and we settled at $21,250, higher
than our target point. Throughout the negotiations, we used such micro skills as active
listening, paraphrasing and reframing to acknowledge the other party’s emotions and
aspirations. Further, when they rejected our offers, we did not get discouraged. Instead, we
asked for an explanation as to why our idea or proposal was wrong to generate more ideas
for reaching an agreement. These tactics worked well for us and when we applied the
course theories, the negotiation went better than expected.