03_Negotiation - Dispute Resolution and Legal Ethics 03...

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Dispute Resolution and Legal Ethics 03 – Negotiation Page 1 of 12 P ART III N EGOTIATION 1 A N I NTRODUCTION TO N EGOTIATION 1.1 Introduction Negotiation is a way to balance value between two or more parties. It is a fundamental mode of human interaction and occurs frequently in many social contexts. Implicit processes of negotiation are particularly prolific in non-legal contexts. Negotiation is important when it is not possible to achieve a goal without the assistance of another. There are several types of negotiation, each differing in medium and formality. It can be a verbal or non-verbal, formal or informal process. Balancing can be distributive or corrective. The extent to which value is distributed depends on whether a soft or hard approach is adopted. Sometimes, cooperation produces better outcomes for both parties. Several ethical issues also arise in the context of negotiation. To what extent is it permissible to lie about, misrepresent, or otherwise conceal pertinent facts or law? Must a party correct misapprehension of the other side? These issues are explored in greater detail below. In general, there are three negotiations implicit in any process of bargaining. They concern: Substance Formal distributions of value; Process How value is distributed and negotiation proceeds; and Relationship Interactions between parties and others. There are two competing tensions in negotiation: Creating value Producing a beneficial outcome overall; and Claiming or distributing value Taking a share of the benefits. Each extreme (where one party creates/takes all the value) is unfeasible. To be successful, any negotiation must address these tensions and resolve the three primary negotiations. There are many opportunities to improve your negotiation skills; observation and self-reflection are discussed below. The influence that the medium of communication has upon negotiation is also explored. 1.2 Negotiation Approaches The Harvard Program on Negotiation outlines two conventional approaches to negotiation, and proposes a third, principled model.
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Dispute Resolution and Legal Ethics 03 – Negotiation Page 2 of 12 1.2.1 Hard Bargaining Hard bargaining is based on power and stubbornness. It uses force and threats to produce the desired outcome. Outcomes are conceived as either being ‘win’ or ‘lose’: negotiation is thus a zero sum game. The party who applies the most pressure wins. Example: “I beat him down to half his asking price.” Success is determined by the number of concessions able to be extracted from the other party. The problem, however, is that the concessions might not be real (the asking price might have been set artificially high so as to make it seem like a good deal was being garnered by the buyer). When two hard bargainers go up against one another, little progress is made. 1.2.2
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This note was uploaded on 08/17/2010 for the course BUSLAW 730-410 taught by Professor N/a during the Three '10 term at Melbourne Business School.

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03_Negotiation - Dispute Resolution and Legal Ethics 03...

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