Negotiation

Spring 2002

Professor Michael Moffitt

Office 333, 346-0506, mmoffitt@law.uoregon.edu

Working Syllabus

January 14, 2002 Draft

Introduction

Welcome to the Spring 2002 Negotiation course!

This semester, we will engage in an introductory exploration of the practice of negotiation. My goal is to help you to improve your skills in understanding and conducting negotiations – as lawyers and in other contexts. I do not believe that there is a single "best" or "correct" way to negotiate. At the same time, it is my experience that there are better and worse practices. I have every confidence that over the semester, you will develop an improved sense of the approach(es) to negotiation that you believe will serve you best in various contexts. With some hard work and careful reflection, I believe that you will become more observant, purposeful, analytically skilled, behaviorally agile, and persuasive negotiators. I have designed the course toward those aims.

The course is quite different from many law school offerings in both content and method. As I describe below, there is no final exam, and there is not really even a final paper. Unlike most courses, which demand the most significant attention at the end of the term, the Negotiation course requires considerable work during the semester, with most of the work completed well before the close of the term. In many ways, the ideas we will cover in Negotiation are not terribly complex – until you try to put them into practice. I suspect that you will find the course exhausting at times, and I hope that you will find it rewarding as well.

Before I go further with describing the course, I thought it would be appropriate for me to share a few of my conclusions with you, so that you know where I'm coming from. I'll surely say more about each of these as we go through the semester.

1. Negotiation is everywhere. I think the most helpful definition of negotiation is broad. I would suggest that we might say negotiation is any effort to influence or persuade someone else to a particular course of action, though I would be open to many other competing definitions. The important thing is to note that by "negotiation" I do not refer simply to the highly formalized or stylized negotiations that make for blurbs in the news. You negotiate with your roommates, your friends, your colleagues, your professors, and any number of other people all the time. (Indeed, you negotiate with yourselves perhaps most of all. Some of that, though, goes beyond what we will study in this course.) I suspect strongly (and hope) that as you go through this course, you will begin to observe some of your interactions with others with a new perspective.

2. Like any skill, negotiation aptitude can improve with careful work. There is popular perception that some people are "born negotiators," while others among us somehow "don't have it." In fact, all of us are born negotiators. From the time you cried in your crib to get attention, you were negotiating. Most of us have broadened our negotiation repertoire since then through a process of observation, experimentation, and reflection. The course aims to provide you with intensive opportunities to do all three of those things. Unlike a course in Civil Procedure or Antitrust, to which you come with very little personal experience, you come to this course with many years of experience negotiating. While you may not have yet negotiated as a lawyer, there are some important lessons to be drawn from the experience you already have.

3. There is no single, universal "best" way to negotiate. We will consider many different approaches to negotiation over the semester. Your goal should not be to hunt for the one that is the "right" answer. Negotiation is a dynamic, context-sensitive enterprise. I am deeply suspicious about any effort to create universal rules ("always/never give the first offer," "always/never negotiate in private," "always/never walk out," and so on) because they ignore important differences in context, in personal comfort, in goals, and in counterparts. At the same time, I will encourage you strongly to develop a rich set of guidelines for yourselves – practices that form something of a personal default, from which you can vary if you perceive a strategic reason to do so. We will practice both scenarios that will permit practice of baseline approaches and scenarios that will likely demand that you expand your repertoire.

4. Learning to negotiate need not be a competition. Many people see negotiation as a competition to be "won," and we will talk at great length about whether and when this view of negotiation is accurate or helpful. Regardless of whether you view negotiation as a competition, however, my experience teaching negotiation has convinced me that learning negotiation need not and should not be a competitive endeavor. This is a course aimed at improving skills. By definition, it will require everyone in the class to experiment with different approaches, searching for the things that seem to work best. That kind of genuine experimentation can take place only in a learning environment that is open, supportive, honest and creative. I will ask your help in making sure that we structure our time together in ways that help us best to create that atmosphere.

Caveats about this Working Syllabus

This represents my best guess about how we will spend our time in and out of class over the next semester. My expectation is that I will make some minor modifications to the course content as we go through the semester. I may, for example, decide to change the sequence of certain lessons, or swap in different negotiation simulations. The net effect should be no more or less work than is described here. I will announce changes with as much advance notice as I can, and I hope that you will understand that any changes I make will be made with the intention of improving the course for all of us.

Instruction Methods

Negotiation is unlike many of the topics you have studied in law school. At its heart, negotiation is a skill, and an interdisciplinary one at that. Teaching methods that may be wonderful for helping students to acquire information or develop analytic abilities are often unhelpful when it comes to something skill-based like negotiation. Therefore, you will experience this class as different from most other law school classes in many ways. Below I have tried to describe some of the pedagogical approaches I adopt in teaching this class.

Lectures. A small portion of this course will involve me making rather typical large- group presentations. There is a certain body of information about negotiation that I think is best communicated and learned in this fashion. It would be easy, however, to overstate the importance of this instruction method. Most of your time in this course will be spent doing rather than listening. Negotiation is a skill that is principally learned experientially, and the course pedagogy reflects that.

Simulations and exercises. Much of your time will be spent negotiating and reviewing your negotiations. The course will include more than a dozen full-length negotiation simulations, with many more micro-exercises along the way. In almost every case, we will engage in a review and discussion of your experiences shortly after your simulation.

Video reviews. You will be videotaped conducting at least one simulated negotiation during the semester, and you will have the opportunity to review your performance both with your classmates and with me. There is often a considerable disconnect between the way we think we look and the way the world actually sees us. Sometimes, videotape can help to highlight some of the ways in which our intentions may not correspond well to the impacts we are having on others. I don't want to over-emphasize videotaping because I believe it is suspect in some important ways. Still, everyone will have a chance to do it at least once, and then you can decide for yourself if you find it helpful as a learning tool.

Readings. I have assigned a series of readings to correspond with the lessons we will cover each week in class. Most of the readings are drawn from non-legal sources, reflecting the interdisciplinary nature of negotiation generally. I will expect you to have completed the readings for each class, though we may or may not discuss them explicitly in any given class session.

Reflective writing. Outside of class, you will write a series of short pieces aimed at helping you to refine your understanding of negotiation and of yourself as a negotiator. In the next section, I describe the written products for the course in some detail.

Written Products

Over the semester, you will write and turn in a series of short written pieces. A brief description of each of these follows, and I will say much more about them as the semester progresses. Please trust me when I say … THESE ASSIGNMENTS ARE NOT AS SCARY AS THEY MAY APPEAR! In fact, many of them wind up being fun and easy.

1. Three reflective journal entries. Self-awareness is a fundamental skill not only for negotiating well, but also for learning about negotiation and improving one's negotiation abilities. To further the development of your own self-awareness, you will write three short (absolutely no more than 5 pages) pieces describing your experiences in one or more of the negotiation simulations and assessing the important lessons found therein. Because these journals are most effective if they are genuine and highly personal, and I will treat them as confidential. I will be the only person who will read them, unless you choose otherwise. I will provide more guidance during the course about what goes into a good reflective journal entry.

2. Two reflections on readings. This class includes a fair amount of reading, almost all of which is non-traditional for law school courses. Drawn from a variety of disciplines, I have chosen readings that are designed to stimulate (and sometimes challenge) your thinking about negotiation. Over the course of the semester, you will be required to write two short (absolutely no more than 5 pages) pieces commenting on some aspect of one or more of the assigned readings.

3. One thought piece. Over the semester, you will write one relatively short (no more than 10 pages without prior permission from me) "thought piece." This offers you the opportunity to explore in more depth one aspect of negotiation practice or theory that you find most interesting. Subject to my advance approval, you may write about anything negotiation- related, in any context. I will provide many examples of topics that would be suitable, though my best advice will be for you to choose something that is most interesting to you.

4. Three memos to your client. During the negotiation simulations, you will often be given instructions from a fictitious client. Following three of your negotiation simulations, you will prepare a very short (about 3 pages) memo to your client, explaining the negotiation you conducted and the outcome you achieved. I will provide more guidance on this during the semester, before the first memo is due.

5. Summaries of your negotiation simulation outcomes. I will often ask you to submit to me the results of your simulated negotiations. This is not intended to be a writing project, and it will often involve handing me a simple one-page summary sheet.

You will be required to submit these written pieces at various points throughout the semester. I will be providing feedback on your reflective journals, and on these I will invite you to engage in a process of "annotation" later in the semester. I will say more about the annotation process during the course. Briefly, it involves returning to your reflective pieces after some time delay, to reflect again on your initial impressions and hypotheses, reassessing various aspects of your performance or your thinking. Many of my former students have reported that the annotating process was the most interesting and helpful part of the writing for the course.

Required Reading

As I described in the advance memo you received in December, we will use three books during this course.

• Beyond Winning: How Lawyers Help Clients Create Value in Negotiations by Bob Mnookin, Scott Peppet and Drew Tulumello (Harvard 2000).
• Getting to Yes: Negotiating Agreement Without Giving In 2d ed. (Penguin 1991) by Roger Fisher, Bill Ury & Bruce Patton.
• Difficult Conversations: How to Discuss What Matters Most (Penguin 1999) by Doug Stone, Bruce Patton and Sheila Heen.

I may, on occasion, supplement the readings with excerpts from other articles or books. I would also be happy to provide a more extensive reading list to anyone who is interested.

Grades, Participation and Attendance

There is no final examination in this class, and beyond the written work described above, there is no final paper. Instead, your grade is based entirely on your class participation and on the various written products you create over the semester.

Written products. Two-thirds of your grade for this course will be based on the quality of your final written products. Each of the short written pieces (the reflective journals, the reading commentaries, and the memos to clients) will be worth approximately 5% of your final grade. Your "thought piece" will be worth approximately 20% of your final grade.

Participation. The remaining one-third of your grade will be based on the quality of your participation in the class. This does not mean that I expect (or want) you to talk in class several times every day. At the same time, a student who never participates in class discussion will not score well on participation. What I will be looking for is the degree to which you engage actively in the tasks at hand – seeking to improve your negotiation skills and helping your classmates to improve their negotiation skills.

Attendance. ATTENDANCE IS REQUIRED FOR EVERY CLASS THIS SEMESTER. As with all classes, if you miss a class, your own education will suffer. In this course, however, absences affect others as well. In many classes, we will be doing simulated negotiations or exercises that will have you paired with one or more of your classmates. If you are not present, your classmates will not have the experience they deserve and it will cause me considerable logistical difficulties. I understand, of course, that things sometimes happen that require absence. I would ask, or even plead, that if you have to miss a class that you contact me with as much advance notice as possible. Where appropriate, absences will be reflected in a student's participation grade. If you have any questions or concerns about this policy, please see me as soon as possible. If you believe that you will not be able to attend classes regularly, we should talk about whether it is appropriate for you to remain enrolled in the course.

Performance. In some schools, a student's grade in a negotiation course depends on her or his performance in the simulated negotiations. For a variety of reasons I'll describe in class, I do not believe that this creates an appropriate learning environment. I will not, therefore, factor your results into your final grade, with the following exception: On occasion, a student will perform quite poorly on a simulated negotiation in a way that reflects a lack of preparation. To the extent that you are clearly unprepared for a simulation, I will factor that into your overall Participation score. My expectation, however, is that all of you will be well prepared, and that you will have varying degrees of "success" in your outcomes in simulations because you will be experimenting with different approaches. Not everything you try will work out – that's the nature of good experimentation. Please experiment without concern that it will affect your grade.

Contacting Me

I welcome the opportunity to get to know each of you better over the semester. I will be setting regular office hours during the first week of classes, once some of the scheduling dust settles around here. I am happy to meet with you during office hours, and I also encourage you to email me to set up a different time to meet.

My general contact information is included on the first page of this working syllabus. My home phone number is 684-0276. Please understand that I have a four month old baby. I would ask that you exercise careful judgment in deciding whether to call me at home, though I recognize that sometimes things will come up that require immediate attention.

The "Negotiation Clinic" Concept

One of the mechanisms I will be using for offering you more personalized feedback on your approaches to negotiation is something I'm calling the "negotiation clinic." It will not be a clinic in the sense of having actual clients with legal problems. Instead, it's something of a lab opportunity, a time for us to get together in a smaller group to experiment with different approaches to negotiation. My current plan is to hold Clinic at least a few times over the semester – probably on Fridays, since that is when the calendars are generally the least busy. We might, in clinic, do simulations, observe each other negotiating, experiment with videotaping, or collectively analyze a negotiation problem in the news at the time. I will say more about Clinic once the semester gets rolling. My current thinking is to make it entirely optional, with the hope that you will stop by once or twice during the semester to get some more personal attention and to swap thoughts about the application of the concepts we discuss in class.

Course Content

Following is a working draft of the class syllabus. It includes your assignments and a preview of what we will cover in each class. As a working syllabus, it is subject to change. If I decide that a change would be useful, I'll give you as much advance notice as I can. Unless I say otherwise, all of the deadlines will apply.

Negotiation

Spring 2002

Working Syllabus Revised January 14, 2002

As noted in the syllabus, this is a working syllabus, subject to some modification during the semester. For each class day listed below, I have provided a description of the preparation I will expect you to have done by the start of class. In some cases, the preparation is quite light, and in others it is quite heavy. You should read ahead in the syllabus to make sure that a heavy assignment does not sneak up on you unexpectedly. As a convention or shorthand, names in bold are the names of simulated negotiations we will conduct. Materials written in ALL CAPS are class presentations or exercises I will lead. I have highlighted the dates on which particular assignments are due. Please pay careful attention to these, as I will deduct considerably from your grade if you turn in materials late. I will say more about many of the assignments on this syllabus as we go through the semester.