Finch & Fafinski: Legal Skills 
Answers to self-test questions
Test bankFinch & Fafinski: Legal Skills
Negotiation
The video clips that follow show three different teams seeking to reach an agreement in relation to the donkey breeding scenario. It would be a good idea if you were to read through both sides of the scenario prior to watching the clips to give you an idea of what each side is trying to achieve as this will help you to assess whether the teams do a good or bad job and whether the agreement that they reach is a good outcome. You might also find it interesting to compare three different outcomes that were reached.
In the clips, Team A will be representing Henley Animal Centre and will be seated on the left of the screen as you look at it and Team B will be seated to the right of the screen and will be representing Island Farm Donkey Sanctuary.
To play the clips below you will need Windows Media Player. Click on the icon to download the latest version.
- Negotiation Clip 1: Opening
- 3.57 MB
This clip shows the opening of the negotiation. Both teams introduce themselves and identify the party that they represent in the negotiations. Team A make a clear statement of the overall aim of the negotiation (to enter into a breeding agreement) and good emphasis on the fact that this is a common aim (we have a stallion, you have the mares) that sets the tone of the negotiation as one involving shared goals. Team B provide an example of asking direct questions in order to establish important facts (the fertility and health of the stallion). This is important as this team have been instructed that no agreement should be reached unless the stallion is healthy so it was sensible to deal with this at the start of the negotiation.
This short clip is an instance of how easy it is to misrepresent the instructions that you have been given. Notice that Team B make a clear statement about the instructions that they have been given, i.e. to reach an agreement for three years with an option to renew for three years. However, the instructions in Scenario B are not this specific; they merely instruct the team to reach an agreement that 'spans several years'. Now, obviously, a three year agreement that could be extended to six years does fall within this instruction but the problem lies with the statement that 'we have been instructed to reach an agreement for three years with a view to extending this by a further three years' as this is not an accurate statement of their instructions. However, this is likely to be a result of the way that the negotiation was phrased rather than a deliberate attempt to deceive Team A. It would have been preferable to state 'we have been instructed to reach an agreement that spans several years so would propose that we start with a three year period with an option to extend this by a further three years' as this introduces a specific timeframe whilst ensuring that there is no misrepresentation of the instructions. This serves to emphasize how important choice of words is in negotiation.
It is important to make use of the facts from the scenario to explain your position to the other team. This may help you to achieve what you want to achieve as it is sometimes easier for people to agree to something when they understand the reason that it is important. Equally, if you tell the other team why you want something as well as what it is that you want, they may be able to suggest alternative ways of achieving the objective. Here, we see that Team B want the stallion to travel to the mares whereas it is customary breeding practice for mares to travel to the stallion. They explain that this is because the mares have been mistreated in the past so are nervous in new surroundings. This makes it harder for Team A to oppose this request as both teams represent clients for whom the welfare and wellbeing of the donkeys is a paramount consideration so they ask instead for a contribution to the cost of transporting the stallion.
It is easy to reach a situation in a negotiation where the teams reach a deadlock, i.e. one team wants something that the other is not prepared to give them. This can escalate into an acrimonious situation and, in the worst cases, end the negotiation without agreement. Here, Team A want to charge £5000 for the use of their stallion and Team B are not prepared to pay that much. The discussion had been continuing for some time prior to the clip and both teams are becoming more entrenched in their position. Team B try to prevent this situation from reaching deadlock by emphasizing the common interest of the team; both want to breed and produce a foal. This technique of emphasising the points of agreement between the two sides can be a very effective strategy for negating conflict. Here, even though it has not resolved the situation (Team A still wants £5000 and Team B still feel that it is too much), the tone of the negotiation has become less antagonistic. Notice also that both sides do well to explain the reasoning behind their position: Team B start by saying that they cannot afford to pay £5000 and cover the cost of caring for the stallion whereas Team A explain that they need the fee to cover the drop in revenue from visitors that would result from the stallion being absent. Finally, it is interesting to note that this conflict is entirely unnecessary: Team A have been instructed that obtaining a stud fee is not a priority and Team B have been instructed that they could pay up to £5000 as a stud fee so it is not entirely clear how this argument has arisen. The message to take from this is to ensure that you are extremely clear about the scope of your instructions and that you do not get carried away and depart from this in the heat of the negotiation.
Here, the teams are discussing ownership of the foals that would be produced by the breeding agreement and the discussion that preceded this clip established that both teams want to own the foals that are produced. Team B ask an important question: why does Team A want to own the foals? This is a good question as Team A own the stallion and it would be highly unusual for ownership of the foals to vest with the owner of the stallion as it is established breeding practice that the owner of the mares becomes the owner of the foals that are produced. By asking this question, Team B establish that the primary concern of Team A is to attract visitors to their centre. This enables them to take a creative approach and suggest a collaborative publicity scheme for the two centres that would achieve A's objective of generating visitor revenue and B's objective of securing ownership of the first foals. Again, this emphasizes the importance of knowing why something is wanted as it enables the teams to work together on an outcome that achieves the aims of both parties so far as it is possible. Sometimes this can involve not only determining how shares in the piece are allocated but increasing the size of the pie so that everyone is happy. In other words, this question enabled the parties to move beyond arguing about ownership of the foals and move instead to consider ways that they could cooperate to increase visitor numbers at both centres.
This clip demonstrates a common problem. Team A is summarizing the points of agreement with a view to closing the negotiation but Team B reopen active negotiations by introducing a new point. This delayed the end of the negotiation and did not achieve anything of particular value. It is often the case that the close of the negotiation approaches and one or both teams will become anxious that they have missed something or that they could have got a better deal. This causes them to reopen points that have been agreed or to introduce new points into the negotiation. This is usually a mistake as there are only two options here: (a) that the point is something that was forgotten during the main body of the negotiation or (b) the team is trying to get a better deal at the last minute in the hope that the opposing team will be more likely to agree because they are so close to getting an agreement. Neither of these options shows the team in a particularly good light so it is something that is best avoided by good planning and practice. Of course, if you do realize that you have forgotten something important at this stage, it is better to deal with it than to reach an agreement without it but you should be aware that this does not give a good impression of your organisational skills.
This clip demonstrates the use of an agenda in the opening stages of the negotiation that sets out the issues to be discussed. This can be an excellent device for establishing the structure and content of the negotiation. Here, Team B set out four points that they wish to address and give Team A an opportunity to add points of their own. The use of an agenda was successful here as Team A were in agreement with the four points identified by Team B and Team B did not object to Team A's preference for discussing a particular point first. Not only did this enable the teams to identify and prioritise issues, it established an amicable and cooperative tone that continued throughout the negotiation. However, the use of an agenda is not always this successful. It can lead to a 'negotiation within a negotiation' if the teams disagree about the points to be discussed or, more commonly, the order in which they are to be tackled. Disagreement at this stage can set the negotiation off to a very bad start so it is important to consider how important it is to your team to 'win' the argument about the agenda as it may ultimately be counter-productive and lead to an acrimonious negotiation.
It is important to get an appropriate compromise between standing your ground to ensure that you achieve a good deal for your client and being prepared to compromise so that the other party is also able to obtain a satisfactory outcome. Here, we see Team B applying pressure to Team A to agree to a set of terms that do not seem to be particularly favourable. Team A do well to resist this pressure. Notice that they do not try to tackle the points of the negotiation themselves but merely state that they feel pressed to accept terms that are not favourable to them. This places the emphasis on Team B either to refute this or to make the terms of the agreement more favourable to Team A to ensure that an agreement is reached. Team A choose to take this latter option and do this well by emphasizing their willingness to make concessions. It is important that teams do not feel pressured into accepting terms that will be unacceptable to their client.
This is a good example of a common problem that can arise in a negotiation when the members of a team disagree about the way to respond to the opposing team. Here, one member of Team A is tempted to agree to pay a fee in return for ownership of two foals. The other team member reminds him that they were instructed to pay as little as possible but his colleague is not deterred and goes ahead and agrees with the proposal made by Team B. You might like to think about the options available to the dissenting team member in this situation: should he interject to prevent his colleague agreeing to something without consensus and risk starting an argument with his partner or should he allow the negotiation to continue even though he fears that they have agreed to unfavourable terms? You can see Team A discussing this situation in Clip 15.
There are some illustrations of good practice in this short clip. Team A are seeking contributions to the cost of the breeding agreement from Team B and do this by emphasizing the concession that they have made by agreeing that the stallion will travel to the mares. Notice how smoothly Team B deal with their minor difference of opinion in how to respond to this with one team member asking what the cost will be whilst the other suggests that they agree to cover the travel costs whatever the sum involved. This was a sensible strategy here; Team B gained a good financial package for their client in this negotiation and are keen to reach agreement on those terms so covering the cost of transport is a minor sacrifice.
Although it is not usually a good idea to try and make additional gains in the closing stage of the negotiation, this is an example of how it can be done. The tone of this negotiation has been amicable and both sides are happy with the terms of the agreement although Team A have agreed to pay a relatively high sum of money to Team B although one that is within their instructions and one that is lower than that originally requested by Team B. Team A take a gamble on trying to reduce the sum further in the closing stages by asking for a stud fee. This is refused so Team A try a slightly different tack that has exactly the same result and this is successful. Although it is possible to criticise Team A for raising the issue of a stud fee at such a late stage in the proceedings, it was done in such a way that it did not jeopardize or interrupt the closing and it was successful in that Team A reduced the sum payable by a further £2000.
It is important to ensure that everyone is clear on what has been agreed at the end of the negotiation. Here, we see Team B listing each point upon which agreement has been reached and noting any amendments that were made to points agreed earlier in the negotiation.
This clip shows a fragment of a circular argument about the duration of the breeding agreement that went on for almost an hour. As you can probably deduce from the body language of the team members, the negotiation has not always been amicable and all parties are rather detached from proceedings. However, despite this, the negotiations are continuing although it is clear that both sides have become rather entrenched in their position. All four negotiators are making different suggestions for the duration of the breeding period and there is rather a feel that this has degenerated into argument for the sake of argument, especially if you take into account the fact that neither set of instructions stipulates any particular duration or format for the breeding agreement other than it spans a number of years. It is important that you remain objective when negotiating and you do not get drawn into a circular and ultimately fruitless argument like this. In this negotiation, somebody needed to break the cycle of argument by taking a break, suggesting that the negotiation move to a different issue where agreement might be found or by some other strategy. Without this, the argument was set to continue indefinitely.
Following on from clip 13, we see that Team B did eventually take a break from the negotiation. This can be a very effective strategy as it enables the team members to talk through the proposals made by the other team and to reformulate their approach to the negotiation accordingly. It can also be very useful as a means of giving both teams some space if the negotiation has become heated or if there has been deadlock as was the case here. Unfortunately, in this instance, we can see that the break was not successful in that the teams were no closer to agreement and this negotiation eventually ended without any agreement being reached. This was largely a result of poor relations between the teams throughout the negotiation and a degree of inflexibility. You will see here that both sides list the concessions that they believe they have made but they do this with a view to compelling the other side to back down. In this situation, unless one side is prepared to make sacrifices and adopt a conciliatory approach to the negotiation, it is almost inevitable that no agreement will be reached as all parties are more concerned with 'winning' against the other team than they are with finding common ground. Despite one of the team members noting the lack of alternatives available to both parties and commenting 'you need us as much as we need you' no agreement was reached.
This is a clip that shows Lawrence and Chris commenting on the situation that arose when Chris agreed to pay £20,000 without consulting Lawrence. Both negotiators have thought about what happened and can see how the situation arose. Notice that Chris admits that he was carried away with the prospect of reaching agreement whilst Lawrence admits that agreement was less harmful than he had thought that it was at the time. There is evidence of a good working relationship between the team members as Lawrence praises Chris' handling of the situation and Chris acknowledges that he should have checked to see if Lawrence was in accord before agreeing. The post-negotiation reflection is successful in that both team members can see the value in the contribution of the other and both would deal with the same situation differently in subsequent negotiations thus demonstrating that participation was a learning opportunity for them.
Negotiation Clips 16 and 17: Post-Negotiation Reflection
Here we see the two teams who failed to reach agreement reflecting on their performance. There is an acknowledgement that the negotiation did not go well in the sense that no agreement is reached but it would have been useful if the teams had done something to acknowledge their role in the failure to reach agreement and to explore what measures could have been adopted to prevent the negotiation from failing. The reflection period is an opportunity for teams to pick up on their own shortcomings and speculate about how they could have handled things differently to avoid any problems that arose. Here, it would be good to see the teams consider strategies that they could have used to avoid the deadlock that arose.
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