Negotiation

Guest Post : 7th NLIU INADR International Law School Mediation Tournament 2018 – A competition full of learning, many trophies to encourage better performance, and for us, a memory and victory to cherish forever!

I would take moment of deep breathing before I begin with the story of our team just like we did before every round during the tournament. Before being titled the “Overall Winners” and “Best Mediator Team” (for those who need to know, the two main titles) of 7th NLIU INADR International Law School Mediation Tournament, we were just another law students curious enough to learn, more than win. Being first time participants in a competition (I had mooted before in Antitrust Law but Rohan and Sanjhi were participating in a competition for the first time), we expected to learn from other students senior in experience to us but the titles we won debunked our own wrong beliefs.team picture

Institute of Law, Nirma University Team: Twinkle Malukani (3rd year), Rohan Bangia (2nd year) and Sanjhi Agarwal (2nd year)

The journey began with giving intra-murals in Nirma University and secure a good rank to forming a team and believing each other, which very well laid our foundation for team work. We talked and met beyond professional reasons and bonded well which really made our relationship improve. Now this is exactly how Mediation and Negotiation works, securing relationship and Getting a Yes! Now that we started working together on the problem, we initially couldn’t figure out how to prepare. We read a book “Getting to Yes” by Roger Fisher and William Ury and understood what exactly Negotiation and Mediation means, to be very correct “Principled Negotiation” both in practical day-to-day life and tournament understanding of course resembles it with some variations. Apart from reading the book, we watched many tutorial videos and mock sessions and videos of other competitions to understand better.

However, there is a reason why NLIU INADR is the best tournament in Asia and how it is different from other Negotiation-Mediation Tournament worldwide. It requires all 3 team members do all 3 roles of Client, Counsel (Negotiators) and Mediator in first three Preliminary Rounds. Now that is tricky but a lot of learning. We three made sure to make each other understand each role that we “thought” we were best at and it turned out that NLIU INADR taught us all three roles really well, especially because after very first preliminary round, there is scope for improvement because you listen to your own role’s feedback and then of others too in the room. Now it depends on how you internalize the feedback and suggestions of the judges after every round. The team, even if new to such competition, but internalizes the feedbacks better takes the title. During the tournament, the judges not only pointed out what we did incorrect but also mentioned what we should continue doing, those being our strengths (like Mr. Valenti, Mr. Rogula, Mr. Ellis and many other judges did). It is in best interest of participants to listen carefully and internalize the feedbacks, not only for this competition and other ADR competitions, but also when they actually go out as professional mediators and negotiate in daily life or for professionally cracking a deal.

This tournament taught us the right gesture and correct words in the right moment, to think twice before speaking, to speak only when necessary, to listen actively, be polite even when one wants to let off the steam, to do as negotiators what benefits you but doesn’t harm the other side, to be unbiased and so on. All this learning did not exclude the fun we all had dancing at the cultural night and interactions during training sessions and lunch breaks. NLIU INADR Tournament 2018 is what we will cherish to have been a part of and having performed great for which we extend our gratitude to amazing judges, NLIU tutorials, training sessions, Nirma University and mutually to each other, as a team! We will cherish not only the winning titles but the whole journey and 3 days of learning. Success is not a one-time thing, it is not a fluke. It is not just about the trophies, Learning and Improving and Growing as a person is a victory in itself.

-Twinkle Malukani, Rohan Bangia and Sanjhi Agarwal

Institute of Law, Nirma University Team: Twinkle Malukani (3rd year), Rohan Bangia (2nd year) and Sanjhi Agarwal (2nd year)

Reflections from Vienna via Florence on IBA-VIAC CDRC Competition 2018: “The Value of Active Listening in the Heat of the Moment. (When bringing a “taser” to a mediation can be a good idea.)

“How can I interject this question without interrupting?”

“This answer doesn’t satisfy me. How can I ask again without stalling the conversation?”

“I need to discuss privately with my client, but it is not appropriate to stop this joint session now.”

“Perhaps I would need something to… tase my client, so that he could remember to consider my opinion as well!”

female taser

During mediation a lot of questions come to your mind, but it is usually not easy to get an answer quickly and keep track of the conversation. When you attend negotiation courses or you study the theory of mediation at home, it is fairly common to overlook the practical implications of such questions, but trust us, they are very relevant.

However, let’s start with some brief introductions first: we, the two writers of this hopefully interesting article, are Elisa Menichini and Emanuele De Napoli, two law students from the University of Florence, Italy. Together with two other students (Francesco Lichen Wang and Marzia Montinari), we were part of the only italian negotiator team at the 4th IBA-VIAC CDRC Mediation and Negotiation Competition in Vienna this July. We were coached by the experienced Professor Paola Lucarelli.
Florence Team
The CDRC Competition was a very formative experience, a melting pot of creative law students from all over the world ready to compete and learn under the guidance of legal experts and professionals willing to share their expertise and ideas. Mediation is a rather recent Dispute Resolution method in Italy (2010) and we, as future legal practitioners, felt that this competition was the right opportunity to grow both personally and professionally.

During the many rounds, carefully and masterfully directed by Claudia Winkler and the CDRC Staff, 33 teams of negotiators and mediators proved their skills in mock disputes based on the 2018 Willem C. Vis International Commercial Arbitration Moot Problem.

There would be so much to describe and write about the competition itself, the wonderful staff and the friendships that were born this year in Vienna, but we will concentrate on a specific event that we truly believe captures one of the key aspects of mediation and conflict in general. Something that we all need to remember.

During one of the rounds we were facing the Istanbul ŞEHİR University, while the mediator was coming from Maharastra National Law University in Mumbay. The negotiation process was lively and dynamic since the beginning. Our team was divided as such: Elisa = Legal Counsel; Emanuele = Client. Bargaining techniques were followed by quick responses, numbers were soon flying across the table and the two opposing clients were dragged into the heat of the negotiation. The trusty legal counsel (Elisa) tried more than once to calm and reassure her competitive client (Emanuele), but he was too focused on his business goal to be “stopped” by his lawyer.

The agitated legal counsel even tried touching her client, but he would just uncounsciously move away. Even trying to hit his legs wouldn’t work, since he was conveniently keeping them under the other side of the table. The now fuming lawyer wrote down on her papers in capital letters “NO”, as a concise but effective way to express her disapproval of a certain proposal. Not even this last resort seemed to restabilish the connection between the two. The businessmen were at work and they didn’t want to be bothered!
Im-not-Listening
Eventually a break was called and we were able to breath, relax and get back into our two combative characters after having shared briefly our ideas and views. The rest of the session went smoothly.

Once the round was finished and the feedbacks by the expert assessors had already been given, we had the opportunity to receive further insights from the judges. When we told this “comic” situation to Thomas P. Valenti, one of the experts who offered us precious suggestions and tips, he recommended (as an obvious but very clever joke) an innovative technique to force active listening and to calm down for a while an overachieving client: using a taser. When caresses, stares and kicks in the legs fail, go harder and use a taser.

Even if it was only meant as a joke, it truly made us think of the value of mediation, active listening and teamwork. During this competition as well as during similar events that we took part in, we noticed how conflict can be like a tornado, drawing the parties into the fight and making them lose sight of their true interests, even if they’re well-prepared. The legal counsels might feel that they need to manage their clients and sometimes thwart their emotions. But the role of the legal expert is changing and a lawyer should be able to understand and compensate for his clients’s whim as well.

That’s exactly why you need mediation, why you need a third party that can redirect you to the right path. The legal counsel should be the “trusty companion” that can grant a proper reality check when necessary and the needed aid when in doubt.

In conclusion, mediation can be considered a “metaphorical taser”: a ground-breaking method among the dispute resolution procedures. It shakes the way we perceive conflict in nowaday society, it changes the rules. The CDRC Vienna Competition was the perfect context to see how effective mediation can be.

We, as young students and future professional, are active witnesses of an epochal change in the way people face conflict: an opportunity instead of a danger to be avoided at all costs.

And if sometimes we’ll need to be “tased” to achieve this results, so be it.

By Emanuele De Napoli and Elisa Menichini,
University of Florence (School of Law),
Italy.

Book Review: STRUCTURED NEGOTIATION, A Winning Alternative to Lawsuits, Lainey Feingold, 2016

225x225bb

Early in her legal career, Lainey Feingold was fired from a law firm. The day before she was scheduled to become a partner, the head of the firm told her she would never become a partner at the firm, stating “You lack grace and equanimity.” Feingold went from hearing those words turn her desired destiny upside down to letting them lead her to towards a career of practicing law with those and many other collaborative practices, detailed in Chapter 16. Her work has formed the basis of a methodology she and her practice colleagues coined “Structured Negotiation.”

In her book, Feingold introduces us to this alternative dispute resolution methodology, defined by one big firm lawyer as mediation without a mediator. The book is neatly organized into Seven Stages, from Stage One: Preparing a Structured Negotiation Case to Stage Seven: Post-Settlement Strategies, over 16 Chapters. It includes Templates and Sample documents, and details of several Stuctured Negotiations that Feingold and her practice colleagues ( primarily Linda Dardarian) handled over the past 20 years.

While many of the examples focus on Feingold’s advocacy for members of the blind community seeking access to ATMs, talking prescription labels, and baseball, the book has broad application to any practitioner who recognizes that certain types of claims, even very large ones, can provide opportunities for many disputants to be better served by the use of this process. While some claims need a Court system and the formal legal process, many do not. As Feingold puts it:

“But filing a complaint should not be the only option for claims resolution. The legal profession – and the public it serves- deserves alternatives that are less costly, less stressful, and more cooperative. Clients need a forum where thier stories matter and they can be ( and feel) heard.”

Whether you believe this or not, you should be aware of this alternative. Many think that those who represent big institutions are reluctant to participate in this out of court process. Yes, this is true. But Feingold has paved the way. She and her colleagues have spent years , patiently, working with many of the largest of these — Bank of America, Walgreens, Target, Safeway, TransUnion, Charles Schwab, others, and even Major League Baseball. And in her work, she provides information on all of these Structured Negotiations, so that you can use her success to contribute to yours.

If you take away nothing from this book, you will no doubt benefit from Chapter 16 which is invaluable. The legal profession is now undergoing a mindset change, where there is a real focus on “soft skills.” These are interpersonal skills, stress management, self confidence, mindfulness, optimism, the ability to convey empathy, and others.

Law students, lawyers young and old, law professors — read the book, but do not put it on the shelf until you have spent some time reading and self – reflecting on the collaborative tools that are discussed in Chapter 16.

You will be better at everything you do, if you can incorporate some of the Structured Negotiation collaborative practices into your life and your life’s work.

Buy the book on iBooks

Book Review Common Sense: Making Good Decisions in Real Estate Workouts Paperback – August 20, 2016

A useful book  for Bank workout officers, negotiators and mediators  dealing with real estate borrower/lender relationships

common-sense

I met Mark Weiss a few years back through a shared interest in Storytelling. With Mark you are never quite sure that you know everything that he does. I knew he had written a book or two  (this is his 8th I think), but I did not know about this book. I learned about it when Mark handed me a copy recently and said that he thought I might enjoy reading it. He was right. It is a quick read. The intended audience for the book is really for bank “workout” officers who will be charged with the responsibility of managing negotiations for properties that come into a bank’s portfolio as a result of a foreclosure or other circumstance. Mark has a wealth of experience in these kinds of situations. What makes this book interesting and worth a read is the wealth of knowledge contained in the book, but also the weaving in of his personal stories ( remember, he is an excellent storyteller as well) recounting tales where deals go bad, are rescued ( sometimes) and the lessons learned from both. So, while the book is truly a “handbook” or “desk-reference” for workout officers, it reads a bit like a documentary, and sometimes even as an action story! Another potential audience is anyone who, like me, mediates commercial disputes. Mark’s understanding of the workout process, is a roadmap for negotiators as well as mediators who are concerned with discovering BATNA/WATNA and the real needs and interests of both sides to these workouts.  I recommend this helpful,  quick and easy read.

Available at Amazon

Unique 20 hour Master Negotiation Class to be offered at 2 different Southern European destinations in 2017

img_2448

We have designed a unique 20 hour Master negotiation Class to be offered at 2 different Southern European destinations in 2017 at different times, depending upon interest. There will be opportunities for guest accommodations, and scheduled special activities for non-participating guests. This survey does not obligate anyone, but will assist in further planning. For those who are interested, the survey is very brief and should take no longer than a couple of minutes. 

Take this survey

 

GUEST POST: Negotiation Hooks – Iryna Sokhatska

Excerpts:

 

“William Shakespeare, the greatest English poet and playwright, said, “We know what we are, but know not what we may be.” The article is focused primarily on studies helpful in understanding negotiation insight that one, unfortunately, can’t always control but for sure should be aware of. The negotiation hooks described in the article are not exhaustive and only the most important ones are analyzed here.

“Good communication skills are vital to a successful, rewarding practice. You need to communicate well with your clients, staff , partners, associates, other lawyers, and vendors. Improving your communication skills will let you express yourself with more confidence” and some knowledge of negotiation insight or so called “negotiation hooks” will let you achieve the results fast and smoothly. It will also let you recognize techniques by which you could become a marionette in someone’s skillful hands. Some guidelines, like these, will make a difference because “before anything else, getting ready is the secret to success.”

 

“The psychological aikido’s main principle is the same as a classical physical aikido: using the force of the other party to gain control; switching the counterparty’s attention to succeed.

How does that work in negotiations?

One of the excellent examples of this approach is the fairytale “A fox and a crow.” A crow was on the tree having a piece of cheese in the beak. The fox wanted to obtain the cheese and started to praise the crow saying, “Sing, sing, please, your voice is so sweet, so unique.” After a couple of similar compliments the crow forgot about the cheese, opened the beak to sing, so the cheese fell down and was happily eaten by the fox.”

Read the entire article by clicking this link:

Sokhatska Article

Iryna Sokhatska is a practicing lawyer in Ukraine, and a recent graduate International LL.M student from IIT Chicago- Kent College of Law, Chicago, Illinois. isokhats@ kentlaw.iit.edu