Course Description
Negotiation theory, practical skills training, and an examination of settlement issues combine to give students confidence that they can negotiate legal disputes effectively and with integrity. Students participate in class discussions and negotiation simulations, complete written assignments, and submit a paper.
Additional Requirements for Graduate Students:
Graduate law students will not be doing any extra work beyond
that required of the Juris Doctor students. J.D. students are
post-baccalaureate students and the workload expected of them is
the same workload expected of post-baccalaureate graduate
students. Law students are professional students, not
undergraduate students. Graduate law students are primarily
international lawyers seeking expertise in the American legal
system. This expertise is gained through exposure to Juris
Doctor courses.
Athena Title
Legal Negotiation and Settleme
Equivalent Courses
Not open to students with credit in JURI 4213E or JURI 6213E
Grading System
A - F (Traditional)
Course Objectives
This course is designed to prepare the student to negotiate legal disputes. Legal disputes include litigated, non-litigated, and pre-filing disputes. Students are expected to learn about the negotiation landscape—the contexts in which negotiation occurs and the role of settlement in the American civil and criminal legal system. Students should also gain an understanding of the special considerations entailed in negotiating in a legal setting—bargaining in “the shadow of the law.” Students will study negotiation theory, becoming familiar with different approaches to negotiation and various strategies and tactics used in negotiation. Topics such as emotional and psychological dynamics of conflict, gender and culture difference, and the bases and use of power in negotiation will also be introduced through theoretical study. Study of the negotiation landscape and negotiation theory will serve as a foundation for the students’ understanding of their roles as negotiators. That role will be shaped by the students’ participation in negotiation simulations. Students will reflect upon and discuss the conduct displayed and decisions made in the simulations. Students will develop their own styles, strategies and tactics, and learn to recognize the styles, strategies and tactics used by their counterparts. Ethical considerations will be covered throughout the course, through study and simulation, giving the students familiarity with ethical dilemmas faced in negotiation and a foundation for addressing those dilemmas.
Topical Outline
• The Negotiation Landscape When and how do grievances become disputes that in turn become legal claims? This unit explores negotiation at various stages of a dispute. Also examined is the phenomenon of settlement as the normative method of resolving legal disputes (as opposed to adjudication), and whether settlement serves the ends of law, society and justice. • Risk assessment/economics of litigation Should we negotiate? When? This unit offers analytical tools and methods for determining when negotiation might be fruitful and when it should be avoided, and explores how the economics of litigation inform the decision to negotiate. Exercise analyzing expected values of cases. Ethics rules regarding fees. (Fact pattern analysis exercises) • Competitive/distributive bargaining An introduction to competitive and cooperative approaches to bargaining. Identifying and defining a bargaining zone. Communication in a competitive negotiation. Ethics of truthfulness in negotiation. (Role play—Single-issue distributive scenario) • Integrative bargaining/Problem solving An introduction to integrative and problem solving approaches to negotiation. Communication in a problem solving negotiation. Ethics of compromise. (Role play—multi-issue integrative scenario) • Creating options; Power in Negotiation Exploring opportunities to create stronger alternatives to negotiated agreement (BATNA). Introduction to the bases and use of power in negotiation. Ethical considerations where power imbalance exists (e.g., dealing with pro se parties). (Role play—Power imbalance) Negotiation strategy and tactics Should you make the first move, the first overture to negotiation? What strategy will you employ? Which tactics will best serve your strategy? This unit introduces common negotiating techniques. Familiarity with common negotiating tactics allows the negotiator to select those tactics most useful to her, and to identify the tactics employed by her counterpart. Ethical examination of common tactics. (Role play—tort scenario) (Letter to opposing counsel) • Attorney/Client Dynamics Explores the tensions inherent in serving as an agent and how the relationship of agent to principal shapes the negotiation dynamic. Communicating with clients is discussed. (Role play—Principal/agent scenario) (Letter to client) • Behavioral Economics, Cognition, and the Psychology of Conflict Behavioral economics has revolutionized our understanding of the way we make decisions in the midst of conflict. Upending traditional assumptions about the way we choose, behavioral economists explore the fascinating and varied amalgam of forces, fears, feelings, biases, and instincts that drive our decision- making processes. This unit introduces behavioral economics, examines its application to dispute resolution, and encourages us to utilize its insights as we negotiate. • Emotions and Negotiation (role play) Emotions can enhance the negotiation environment or impede progress in negotiation. This unit explores the role of emotion in decision making processes, the expansion of trust, and the resolution or aggravation of interpersonal conflict. (Role play with strong emotional content) • Gender Are there differences—real or perceived—in the way males and females behave in competitive and negotiation settings? How do actual or perceived differences influence the relationship between negotiators of different genders? This unit explores whether and how gender difference impacts approaches to negotiation, aggression, or levels of competitiveness in a negotiation setting, and the ability to communicate effectively. (Role play—sexual harassment) • Ethnicity and Culture How do we negotiate in a multicultural world? How does cultural difference and stereotyping influence the interactions of negotiators with differing backgrounds? This unit examines the impact of culturally-instilled assumptions, the limitations on our understanding of one another that arise from such assumptions, and what can be done to overcome such assumptions in a negotiation setting. (Role play involving cultural difference) • The shadow of the law; the shadow of the court. As lawyers, we bargain “in the shadow of the law.” This means that our agreements and our alternatives to negotiated agreement are shaped by the law applicable to a given dispute. Certain legal rules bear directly on the negotiation process and the conduct of negotiators. This unit examines issues relating to fee-shifting rules, plea bargaining, rules governing negotiation conduct, admissibility/inadmissibility of settlement discussions, etc. (Role play—plea bargaining) • Email and telephone communications. Mediation. An examination of the ways that technologies can be used to advance or imperil negotiations. Are technologies fundamentally changing the way we relate and communicate, particularly in dispute settings? Also, when and how to seek the help of a third- party neutral, and what a neutral can do for you and your client. • Special settlement issues. An introduction to special issues arising when parties seek confidentiality or non-disclosure as part of their settlement agreement. Also, the challenges facing attorneys who represent multiple clients as they attempt to settle multiple or mass claims, or represent groups of diverse individuals. Finally, the special dynamics of multiple party negotiations.
Syllabus
Public CV