The Negotiator Magazine

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            ii. Legal Negotiation
            Legal negotiation is more of a level playing field than hostage negotiation.  When making opening proposals, the parties do not necessarily know each other’s limits.  Therefore, there is greater potential for extreme opening offers, anchoring, and large concessions.   “Bargaining formally begins when negotiators on one side open with a concrete and, at least in their own mind, plausible offer.  It then usually proceeds through a series of reciprocal offers, suggestions, and counteroffers as the parties use various techniques to explore alternatives.”   Negotiators are essentially attempting to get a bigger slice of the pie and to make the pie bigger.
            This can be accomplished with “a series of exchanges, where each party makes some concession from an initial position in exchange for some equivalent concession from the other party, with the overall goal of reaching agreement somewhere in the zone of agreement where both parties can accept the outcome.”
            Even though the lawyer negotiator cannot cut the electricity - such as the hostage negotiator can – there are strategies that can nevertheless be employed.  Like all negotiators, the lawyer negotiator must be aware of whether they are adversarial or problem-solving, whether they should exhibit more assertiveness or empathy, or whether their tactics are being received favorably or not.  Negotiators do not want to alienate their opposition because the proposals and bargaining will inevitably immediately cease.
            Within the context of legal negotiations, the BATNA is potentially endless – assuming the negotiation is not for a rare or unique item.  Therefore, the lawyer negotiator must look outside the box, and abstractly determine alternatives that may not be immediately recognized.  This is essential because a lawyer should never accept an agreement, unless they know what their BATNA is.   Thus, creativity is useful not only when evaluating solutions within the negotiation, but also when looking beyond it.


See Shell, supra at 156-74. 

Id. at 157. 

Mnookin, supra at 9.

Developing the Concessions Strategy, at http://changingminds.org/disciplines/negotiation/ activities/developing_concessions.htm. 

Brad Spangler, Best Alternative to a Negotiated Agreement, (June 2003) at  http://www.beyondintractability.org/essay/batna/. 

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May 2007