To: Fall 2003 Negotiation Students
From: Professor Richard C. Reuben
Date: August 15, 2003

re: THE GENERAL MEMORANDUM

 

I. Orientation

Negotiation is an essential part of life for most people, and is particularly important for practicing lawyers. Indeed, much of a lawyer’s interpersonal time is spent negotiating – with “the other side,” clients, colleagues, even secretaries and court clerks. Yet rarely do we have an opportunity to think systematically about the art and science of negotiation, much less practice our negotiation skills in a relatively risk-free environment.

This course provides that opportunity, with the general goal of helping you improve your understanding of the negotiation process and your own personal effectiveness as a negotiator. More importantly perhaps, I hope to provide you with a framework for continuing to improve your negotiation skills long after the class has ended. The primary thrust will be toward the development of an interest-based, or problem-solving, approach to negotiation that emphasizes a negotiator’s need to manage all aspects of the negotiation – including its various elements, tensions, and other dimensions – although other styles (such as “hard bargaining”) will also be addressed. As far as I know, there is no one right way to negotiate in every situation. Rather there are different approaches and styles, ranging from cooperative to competitive, that are sometimes more effective and sometimes less effective. The effective negotiator is skilled at them all.

The course will blend theory and practice, to help you see and appreciate the relationship between the two. The theoretical research that has come to inform our understanding of negotiation is rich and interesting (at least to some of us), and it is my belief that a grasp of that literature will help you become a better negotiator in practice, which is the ultimate goal of the course. Theoretical foundations will be drawn from several different disciplines – law, psychology, economics, and game theory, to name a few – and will be found in both the required and Recommended Readings, as well as my lectures. We will have at least one major negotiation role play or exercise during most class sessions to help apply the principles we have discussed and to gain a more personal sense of the issues they raise as we apply theory to practice. These exercises will be debriefed in class.

Homework will typically consist of preparing for the next class’s negotiation, reading the assigned readings, and generally writing a weekly journal entry that will be turned in before the beginning of the next class session. There will be a final research paper, but no final exam.

 

II. Course Materials

1. The Textbooks. The main texts for the course are:

Beyond Winning: How Lawyers Help Clients Create Value in Negotiation, by Robert H. Mnookin, Scott R. Peppet and Andrew S. Tulumello (1st ed. 2000);

Getting To Yes: Negotiating Agreement Without Giving In, by Roger Fisher, William Ury, and Bruce Patton (2nd edition, 1991); and

Getting Past No, by William Ury (Rev. Ed. 1993).

All three books should be available from the bookstore.

2. The Supplement. The Supplement consists of supplemental course materials, required readings, and descriptions of Recommended Readings that provide more insight into the issues we are covering, generally by way of extended discussion or critical analysis.

3. The Recommended Readings. The Recommended Readings described and summarized in The Supplement are on course reserve in the Law Library. The Recommended Readings can be particularly helpful as you develop your paper topics.

4. The Negotiation Role Plays and Exercises. At the end of most classes, I will distribute simulated role plays or exercises for the following class, with different roles for different people. While you may discuss your upcoming negotiations with others who are playing the same role that you have been assigned, it is important that you not share confidential instructions with students having other roles. The role plays will generally be run and debriefed in class. Two role plays that will be negotiated out of class, however, so that portions of them can be videotaped and reviewed (also out of class). The first is mandatory, and the second is optional. See the discussion of Video Reviews on Page 3 for further information.

5. The Course Materials Fee. There will be a required one-time course materials fee of around $30 to defray the costs associated with some of the role plays and exercises. It must be paid to Pat Agnew in Room 203 by the beginning of class on September 16. Checks should be made out to “School of Law.”

 

III. Course Requirements

1. Personal Journals.

a. Weekly Journals. Self-reflection is a key means of deepening your understanding of yourself as a negotiator, and the Personal Journals are designed to provide you with an opportunity to engage in this kind of reflective learning. You are required to turn in 10 weekly Journal entries over the course of the semester, plus the Final Journal entry (see below). Each weekly Journal entry should be 2-3 pages (no longer!), preferably typed, and should reflect upon your negotiations during that week, or on some other negotiation-related topic, and generally incorporate the readings and class discussion. You may turn in only one journal per week. A further description, and examples, are provided in The Supplement. Journals must be e-mailed to me at with the phrase NegJournals (and nothing else!) in the subject line before we begin each class. Late journal entries will receive no credit. Finally, as with our class discussions, your journals will be treated with utmost confidentiality.

b. The Final Journal Entry. At the end of the course, you will turn in a longer, 7- to 10-page Final Journal Entry in which you reflect upon your larger experience in the course as a whole. You may not take a pass on your final Journal Entry. Your Final Journal Entries are due on the Law School’s Stop Day, December 8, but may be turned in earlier, any time after our last day of class, December 2, and before Stop Day.

2. Research Paper. This course also requires a 10-15 page research paper analyzing a topic of your choice on any subject related to negotiation. This is an opportunity for you to explore an aspect of negotiation that you find of interest, and to get a sense of the rich literature that informs the field. While you are expected to do independent research, your paper will be also be judged according to the degree to which you incorporate concepts, themes, and readings discussed during the course, and the overall quality of your analysis. More specifically, in the past, I have assigned points for the difficulty or novelty of the topic, the clarity of the presentation, the degree to which class concepts were incorporated and/or extended, the depth of independent research, and the overall demonstration of sophisticated understanding of the topic. While I will not necessarily commit to using these specific criteria in the future, they should give you a sense of my general expectations.

To help keep you on track, I will expect you to turn in your preliminary paper topic on September 30, and a preliminary outline or progress report on November 4. Your Research Papers are due on the Law School’s Stop Day, December 8, but may be turned in earlier, any time after our last day of class, December 2, and Stop Day.

3. Video Reviews. There will be two opportunities to tape and review your negotiations on videotape. The first is mandatory and will be based on a negotiation that you will do out of class between September 23-27; the video review will be on Saturday, September 27. You will be grouped in groups of four, with two negotiators on each side, and should plan on spending at least one hour for the negotiation, and one hour for the video review on Saturday. Be sure to videotape at least the first 15 to 20 minutes of this negotiation, completing the negotiation after videotaping the opening portion. Note: You must provide your own videotape, negotiate a taping time with your fellow group members, and then make appropriate arrangements with Pat Agnew in Room 203 for access to the Jury Room to tape your negotiations. You will probably want to designate a group member to remember to bring the videotape to the video review.

Attendance is not required for the October 25 session, which will be based on a bonus negotiation that will be conducted outside of class between October 21-25. You will receive extra credit toward the participation component of your final grade if you participate in the negotiation and the video review, and do your Journal for that week on the video review. There will be more details about this negotiation after I get a sense of how many will be participating.

4. The Ellsworth Negotiation. Your final negotiation exercise will be representing a client in the Ellsworth Negotiation. This is a demanding negotiation, in part because it is designed to provide a real negotiation experience, in which you would will be paired with at least one other lawyer, representing "real" clients who will need to approve the deals you negotiate on their behalfs, and you will be accountable to "real" senior partners who will be monitoring your work. Moreover, the negotiation will be set in Missouri, and will require you to work with relevant Missouri law (a summary of which will be provided). Please be advised that this is a time intensive negotiation, and while substantial class time will be allocated for it on November 11 and November 18, you can expect to spend several hours outside of class working on various aspects of the negotiation.

IV. Class participation

A substantial portion of your grade is based on class participation. Here’s what I expect.

1. Attendance.

I absolutely abhor attendance policies, but the nature of this course requires me to implement one. Your timely attendance is crucial, in part because in most classes you will be paired to negotiate a role play with at least one other student. If you are absent or unprepared, you will not only affect your own participation that day, but in most cases you will also be depriving your negotiation counterpart of their educational opportunity. If you do not expect to be able to attend every class session, you should not take this course. This is a decision you should make now, before the class gets fully under way and while there is still a Wait List of other students who want to take this course – many of whom may not have another opportunity to do so while they are in law school.

That said, emergencies unfortunately do arise. Even so, if you have to be absent or late, it is crucial for you to notify me before class so that I can excuse the absence and make appropriate adjustments to minimize disruption for the other students. Please be assured that absences, habitual tardiness, and inadequate preparation will be meaningfully reflected in your final grade.

With the foregoing principles and concerns in mind the attendance policy for the course is as follows: Attendance is required. Period. Any absences are presumptively unexcused, and will result in a two-point reduction from your final grade for the first absence, and a four-point reduction for a second absence. After a third absence, you will be administratively withdrawn from the course. You may exercise your legal skills and file a motion to quash the sanction for good cause, pursuant to the Missouri Rules of Civil Procedure, which will be considered after the unexcused absence. Such motion must be received by Room 203 within seven days of the unexcused absence, with time and date noted and attested by the Law School’s Registrar or an Associate Dean.

2. Preparation and Effort.

Learning to be a better negotiator is not something that can be done “to” or “for” you. Rather, you must work at it yourself. While others can offer you advice and ideas to think about, what you learn from this course in large part will depend upon your effort. You should make every effort to come to class as prepared as possible. In particular, if you have been assigned a role play role, you must come prepared to play it. In this sense, preparation is every bit as important as attendance, and will be factored into your participation grade for the class.

3. A Willingness to Experiment.

We all bring to our first negotiation class a negotiation style that has been built up over the course of our lifetimes. Sometimes it is effective, sometimes it isn’t. For most of us, there is room for improvement – and in this context, that means doing things differently. This class is the time to try new ways of doing things, to expand your negotiation repertoire, to find new skills and techniques that help you become a more effective negotiator. While you will receive a grade at the end of the class, please be assured that you will never be penalized for experimenting with new techniques, regardless of the outcome in the negotiation. Effort is more important than outcome. In this sense, the class provides a risk-free learning environment, and I encourage you to take advantage of it – mindful of the fact that learning new skills takes time, practice, and patience.

4. Courtesy and Helpfulness to Your Fellow Students.

You can learn a great deal about yourself as a negotiator from the person with whom you have just negotiated. For this reason, I will generally try to provide some time during the class for you to give each other feedback about your negotiations after we have debriefed the cases. Please take advantage of this opportunity to give and receive feedback about what worked well and what might be done differently, in a constructive and respectful manner. In this regard, the materials in The Supplement on Observing a Negotiation, The Three Positions, and Giving and Receiving Useful Feedback should be helpful, and I encourage you to read them at your earliest convenience.

5. Confidentiality.

Self-reflection and awareness is an important part of negotiation, and often brings out attitudes and feelings that are more personal in nature. This is an important part of the learning experience, albeit sometimes an uneasy one, and participants in the class need to feel comfortable sharing with, and learning from, each other in this way. This is only possible if we foster an environment of openness, trust, and safety within the class. I therefore ask that you exercise the utmost discretion in discussing the experiences, conduct, or comments of others – especially when you are speaking to those outside the classroom. I will do the same.

V. Grading

Your final grade will be based on the following allocation:

I want to reiterate that your grade will not be based upon how the outcomes of your negotiation role plays compare to those of other students, but will rather be based upon what you learn in the course, as demonstrated in your writing and in-class performance. Again, there will be no final exam.

VI. Summary of Key Dates

August 26. First day of class. Turn in Preliminary Goals for Course worksheet.

September 27 (Saturday): Video Reviews of Your Negotiations (with Professor).

September 30. Preliminary paper topics due.

October 25 (Saturday). Bonus Negotiation and Video Review (without Professor).

November 4. Preliminary Paper Outline or Progress Report Due.

December 2. Last class!!

December 8. Law School “stop day.” Final Journal Entries, Research Papers due!


Copyright 2003 Richard Reuben. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.