American Bar Association reports identify negotiation as an especially important lawyering skill. According to the MacCrate report (“Legal Education and Professional Development—An Educational Continuum”), negotiation skills are “essential throughout a wide range of kinds of legal practice.” I have developed a “Negotiation Planning Checklist” and other tools for lawyers’ use when engaged in dealmaking negotiations or when resolving disputes. These tools are based in part on my teaching in graduate degree and executive programs that include lawyers and judges, presentations in ABA and other bar association programs, and guest lectures in courses at Harvard, Stanford, and other law schools.
All of the tools are available for free at the Negotiation Planner website. The website also includes a link to a free University of Michigan course called “Successful Negotiation: Essential Strategies and Skills.” To date, more than 1.3 million learners worldwide have enrolled in the course, including lawyers and law professors. According to one attorney, “[a]s a lawyer who works on contract analysis and management, my biggest takeaways were the useful strategies in balancing the business needs vis-a-vis the legal needs in commercial dealings.”
The Negotiation Planning Checklist on the website is the most important tool because planning is key to negotiating success. This tool encourages you to think about your negotiation goals, your best alternative if the negotiation is not successful (that is, your “BATNA”), reservation prices, stretch goals, zones of potential agreement, and other key elements of a successful negotiation. According to an email from a U.S. CEO who was working abroad, the checklist enabled him to renegotiate a contract that benefitted both sides: “Win-Win. The projected savings over the next 5 years is over $4M USD!!!”
Other free negotiation planning tools available on the site include:
- Assess Your Negotiating Style: This tool will help you understand your negotiating style. You should complete the assessment at least once and review it periodically.
- Developing Your Negotiating Power: Use the questions in this tool to develop your power in negotiations.
- Checklist of Psychological Tools: This tool gives you a checklist of psychological tools that you can use during negotiations. Review the checklist when preparing for negotiations and keep it handy while negotiating. Keep in mind that these psychological tools are also traps that you want to avoid when they are used by the other side.
- Checklist of Ethical Standards and Guidelines: Ethical questions arise frequently during negotiations. This checklist provides guidelines that extend beyond professional responsibility requirements. Some of the guidelines are required by law (for example, fiduciary duty), while others are voluntary.
- Contract Law Checklist: This checklist lists key contract law questions to consider during negotiations. If your clients insist on negotiating an important deal without your presence, you might share the list with them to create awareness of legal issues that might arise. This awareness might in turn help you when they ask you to draft the contract that follows their negotiation.
- Life Goals Analysis: A life goals analysis is especially recommended for dispute resolution negotiations, but is also useful in dealmaking. This tool lists some life goals that you should consider during negotiations.
The “Life Goals Analysis” is my favorite tool. I learned about it a few years ago when speaking at an American Bar Association annual meeting. One of the other presenters was John Wade, a leading mediator from Bond University in Australia. During his talk, John described how he uses a life goals analysis during difficult negotiations. His examples caused me to realize that this is a useful tool beyond negotiation whenever you face any important decision in life.
I hope these tools will be useful to you and your clients. No permission is necessary when using them. I would, however, be grateful if you would share with me suggestions for improving them.
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