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JUNE 2017 - YLS
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Young Lawyer's Section Successful Program on Negotiation Tactics

by Nicole Ramirez

 

On the evening of May 17, 2017, the Young Lawyers Section of the Women Lawyers Association of Los Angeles hosted its annual spring program at Hogan Lovells’ Century City office. During this year’s program, entitled “Closing the Deal: Negotiation Tactics for Young Lawyers,” a panel of three experts in the field provided tips, advice, and insight to attendees on how to improve their negotiation skills.

The event began with Elaine Chang, co-chair of the Young Lawyer’s Section of WLALA, introducing the panelists and moderator. The three panelists included the Honorable Nancy Wieben Stock (Ret.), JAMS mediator and retired Superior Court Judge; Professor Rebecca Delfino, Professor at Loyola Law School; and Torrey McClary, a partner at Hogan Lovells. The program was moderated by Sharoni Finkelstein, an associate at Venable LLP’s Intellectual Property Litigation practice group.

After introductions, Moderator Sharoni Finkelstein got the conversation started, covering a wide range of topics, including preparation, setting the price, making concessions, gaining rapport with the opposing party, determining Your approach, and creative solutions.

Preparing Yourself and Your Client for the Negotiation

Judge Stock explained that it should be standard practice to do some “digging” before any negotiation or mediation, recalling a mediation where it was discovered that one of the party’s attorneys had been disbarred just days prior to the mediation. In that regard, Judge Stock advised, one’s web presence should be “pristine.”

Judge Stock also explained that a large part of preparation involves preparation of the client, which can include addressing the client’s fears and uncertainties and being candid about the process. Judge Stock also noted the importance of knowing your settlement officer and scheduling a phone call with him or her after mediation briefs are filed.

Professor Delfino explained that the actual negotiation is the tip of the iceberg, and that, in her experience, time spent preparing for a negotiation should be three times as long as the time spent actually negotiating. Professor Delfino also noted the importance of knowing and researching the person against whom you are negotiating, as well as knowing your client and your documents.

When it comes to preparing clients, Professor Delfino explained that she spends time managing client expectations, validating their feelings, and educating them about each stage of the negotiation. Professor Delfino also noted that, in her experience, it is sometimes better that the client is not physically present during the negotiation.

Ms. McClary explained that preparation is key, especially for associates, who can make themselves invaluable by understanding the documents and issues.

In the transactional arena, McClary explained that, to prepare her clients, she does the work for them, but makes sure to get the clients’ “buy in” and makes them feel like part of the process. McClary also makes sure that there is a common understanding of the agreement that is being negotiated.

Setting the Price and Making Concessions

Sharoni transitioned to the next topic: How to set the initial price.

Judge Stock explained that, as a mediator, she first wants to know what offers have been conveyed, formally or informally, including between parties.

Professor Delfino explained that the number has to come from client, but that it is important to determine three types of numbers: (1) The bottom line, (2) the target number, and (3) the BATNA—the best alternative to negotiated agreement—which  could range from going to trial or buying the subject product from someone else. Professor Delfino advised attendees that one should never reveal the bottom line.

Ms. McClary explained that in order to set the initial price, it is necessary to educate the client about the negotiation process and that you should never start the negotiation with your bottom line.

Ms. Finkelstein then moved the conversation to the “meat of the negotiation,” and asked the panelists about the point at which concessions can be made.

Professor Delfino explained that she pre-plans with her clients by making a list of concessions they are willing make and prioritizing those concessions. She also discussed the timing of concessions, noting that initial offers from both sides should be on the table before any concessions are made, allowing you to see the distance between you and the opposing party. Professor Delfino also advised that you should start with small concessions, tell the other side why you made certain concessions so they know you are not losing your position, and ask the other side for concessions.

Ms. McClary explained that she opts for package bargaining and does not make concessions until seeing everything on the table.

Judge Stock acknowledged that, a negotiation is a process and sometimes, concessions just cannot be made by either side.

Gaining Rapport with the Other Side

Sharoni next asked the panelists what they do to gain rapport with other side.

Professor Delfino recommends, while researching opposing counsel during your preparation, finding one thing you have in common with opposing counsel and make conversation about that during negotiations.

McClary notes that her style can be characterized generally as rapport building, friendly, fair, and in tune with other people’s reactions. She advised attendees of the importance of finding your own style, which can be done by listening and observing what you think is effective.

Judge Stock noted that there is great strength in being underestimated. She advised attendees to not be defensive or take on characteristics of the other party, but rather to be yourself and to be gracious, classy, and the most prepared person in the room. Aside from that, Judge Stock noted, you don’t need anything else.

Determining Your Approach

McClary explained that she typically starts a negotiation with a collaborative tone, but noted that she has seen others effectively use a more aggressive tone.

Professor Delfino recommends starting a negotiation with a problem-solving approach, stating that if a negotiation is purely adversarial, you will likely end up in stalemate or in court. She also pointed out that a negotiation is not litigation, nobody wins, and everybody ultimately gets something. However, Professor Delfino advised attendees to keep in their tool bag the ability to be aggressive if necessary. 

Judge Stock pointed out that the case itself can dictate the approach. For example, family law cases demand a more collaborative approach, while commercial cases may require a more aggressive approach. It is important to be chameleon-like, Judge Stock explained.

Examples of creative solutions

Judge Stock advised attendees to never give up on a negotiation, keep your head in the game, and use a third party to help you come to a resolution.

Professor Delfino advised attendees to brainstorm while keeping in mind “what is the best way to serve everyone’s interest.” Professor Delfino recounted a situation where she was asked to mediate a family law matter involving a fight among siblings over where their mother’s remains would be located. Ultimately, being creative and thinking about the best way to serve all siblings’ interests, the parties decided to divide the mother’s ashes.

McClary acknowledged the need to be creative in certain situations in order to get to “yes,” noting that brainstorming should be done with the client in private, well in advance of the negotiation.

Ms. Finkelstein then took questions from the audience and after the panel discussion ended, attendees mingled with the panelists and moderator while enjoying appetizers and beverages. Overall, the event was a success in bringing together experts and young lawyers and providing young lawyers with new skills and insight aimed to improve their negotiation skills.

 

Nicole Ramirez is an Associate at Kiesel Law LLP.

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