Negotiations Chapter by Schultz_1 (1)

Negotiations Chapter by Schultz_1 (1) - Chapter on...

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Lawyering Skills  (Matthew Bender, 3d ed.) CHAPTER 16 NEGOTIATING Negotiating skills are important in many aspects of life. We begin negotiating with our parents at a very young age. We negotiate with employers, with friends and colleagues. We negotiate major purchases such as cars and houses. Lawyers negotiate constantly--plea bargains, settlements, contracts, and many other types of transactions. Along with client counseling, negotiation is the most frequently performed and critical lawyering function. Nevertheless, most of us have never had any formal training or organized learning on the subject. We frequently do not even give much thought to the process. We don’t plan our negotiating strategy or analyze how and why the process works the way it does. Nor do we reflect on our negotiations after the fact to figure out how we might have done better. This chapter gives you an introduction to concepts that will allow you to plan for and learn from your negotiations in an organized way. We help you to begin to understand the inner workings of the negotiations process so that you can control both the process and results to a greater extent, and serve your clients better along the way. 16.01 Purposes of Negotiation The purpose of any negotiation is to reach an agreement. If that is not your purpose, you might as well save your energy and go to court. The essence of negotiation is compromise and problem-solving. Whether you are trying to decide custody and visitation or how much money an injured victim is entitled to, you must assess the needs and interests of the parties and try to reach a resolution that meets as many of those needs as possible. Obviously some needs and interests will be in conflict, and there must be some balancing and decision-making. The likelihood that you will be able to meet everyone’s needs is very small, as is the likelihood that one party will walk away with all the marbles. Therefore, you must plan on giving as well as getting. 16.02 Theories of Negotiation There are many approaches to negotiating, but we will focus on two approaches here: the adversarial and problem-solving modes of negotiating. 1 Most lawyers, and probably most individuals, at least begin with an adversarial approach to negotiating--that is, the idea that someone must win while the other will lose. The problem-solving approach, which requires a great deal of trust, is less common, particularly among negotiators who have no history with each other. As you gain experience, you will develop a flexible approach to negotiating. You will adapt various methods of negotiating to suit your own personality and the many contextual variables that determine which negotiating approach is most appropriate in any particular situation. 1 For a more in-depth discussion of the theories touched on here, see Bastress and
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Negotiations Chapter by Schultz_1 (1) - Chapter on...

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