Is it just me, or is mooting getting a tad boring? Many of you will be outraged that I could even suggest such a thing, but I think negotiation is the ‘new’ mooting.
Now I know what you’re all thinking: ‘nothing could be as exciting, heart racing and rewarding as mooting.’ Let me just set the scene. There’s no case law to rely on, you’re in close quarters with your opposition and you have no idea what or even how you will reach your end result. While that, at least in my books, sends the heart racing, just to add more excitement you have only 30 minutes to make a deal that suits the very different wants and needs of both parties.
Hopefully by now you’re jumping on your faculty’s website and investigating whether there are any negotiation competitions on offer at your uni. Before you try your first negotiation, here are some of my tips for getting started…
For a moot, generally you have your points worked out well in advance, however with negotiation it is slightly different. I would suggest creating an agenda. If you have a plan and stick to it, you’ll find that when it comes to the actual negotiations, things will move very smoothly. Here’s a simplified version of an agenda I have used this year:
Identify parties’ interests – what are their needs and desires? What do they want to get out of the negotiation?
Identify common ground and general solutions that both sides could discuss later in the negotiation.
Discuss possible solutions.
Confirm the outcomes of the negotiation. Note what has been agreed to and what is still to be decided.
Always keep in mind that when you’re negotiating that you’re not there to win a legal point; you’re there to represent your client and your client’s interests. You will also want to establish at the beginning that the negotiations are confidential and ‘without prejudice.’ It’s a little thing but when it comes to point allocations it could mean the difference between a win and a loss.
It’s also important to be kind to your opposition. While this may sound counter-intuitive when it’s a competition, you’d be surprised by the agreements you can reach for your clients if both sides come at the negotiation with open minds and a cooperative approach.
Flexibility is also key: make sure you come into the negotiation ready to compromise, and try to avoid getting hung up on one issue. If you feel like you’ve spent long enough on one issue, move on and come back to it later.
Considering your WATNA (worst alternative to a negotiated agreement) and your BATNA (best alternative to a negotiated agreement) in advance will also help you to understand whether the options on the table best suit your client’s interests.
Finally, enjoy yourself! Although you will spend hours preparing for your negotiation, it will be over in a flash!
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