Principles, Practice, and Self-Awareness
S Y L L A B U S
Prof. Ralph Cagle
University of Wisconsin Law School
Fall 2012
This Syllabus contains everything you need to know about the learning objectives, methods, and rules for this class. Read it carefully and reference it as needed.
WHAT THIS CLASS CAN DO FOR YOU. It will help develop your skills and sharpen your performance as a negotiator. You will learn techniques, processes, strategies, and what generally constitutes effective negotiation behavior. If open to the possibility, it will also reveal to you a good deal about you as a negotiator. This self-knowing is important because you (your history, personality, character, attitudes, psyche, and values) are fully in play whenever you negotiate. Change and growth happen in this course. You may discover new ways of thinking and behaving that previously you did not think possible. You will also learn about the perspectives, motives, and behavior of other negotiators. This course is directed at what we generally think of as "lawyering" but the learning can be applied to your other professional and personal engagements.
I will spend about three weeks of the course using the same experimental learning methods we use in negotiation to learn about mediation processes and techniques from the perspectives of mediators and lawyers representing clients in mediation.
You will examine a sampling of inter-disciplinary body of research and analysis that is negotiation science, get experience through practice, subject that practice to internal and outside criticism, and reflect on what you have learned. Theory. Practice. Feedback. Reflection. Again and again. And again. And yet again. That's the semester in a nutshell!
Consumer Warning: Inflated or fragile egos may be subject to abrasion, bruising or other collateral damage in this class even though some safety precautions are taken. Management disclaims all liability for any damages.
FOLLOW THE WEEKLY CLASS SCHEDULE. The Weekly Class Schedule is your detailed step-by-step guide to the assignments and activities of the class.
REQUIRED TEXTS. Both are available in the Law School Book Mart:
G. Richard Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People
2nd Edition (Penguin Books 2006) (Also available online)
Negotiation Reader (photocopied materials available in the Book Mart)
Bargaining for Advantage, which is assigned over the course of the semester provides that best available overview of the principles, vocabulary and basic strategies of negotiation for the entry level practitioner. It also adds value to the repertoire of more experienced negotiators. (You don't have to wait to read Shell. It's a short accessible, and for a class textbook, an entertaining read. Many of our students have found it useful to read entirely early in or even before the class. If you choose to do so, do not read Appendix A until after you have completed and scored the Bargaining Style Assessment Tool which we use in this course (Second Class). The Negotiation Reader is a selective collection of materials from the broad and multi-disciplinary field of negotiations. It contains both background from our understanding of the process and specific practical suggestions for the practice of negotiation.
GRADING. This is a two (2) credit, graded course. Your final grade is based on the following:
Class attendance, participation in exercises, timely completion of
assignments, and overall contribution to class learning 15%
The mid-term negotiation and self evaluation 35%
The final negotiation and self evaluation 50%
Students want to know (precisely, if possible) the criteria we use to grade the negotiation simulations. My assessments of your negotiation performances are offered primarily to help improve future negotiation performances. But grading, however inexact a science it may be, nonetheless matters. That being said, the grading criteria I use is articulated in Attachment A to this syllabus.
PRACTICE SOME PRINCIPLES OF MUTUAL RESPECT AND CIVILITY. We are a small group dealing intensely with what can be a very personal subject. We interact more frequently, candidly, and emotionally than in most classes. Some principles of civility for students and faculty have proven helpful.
1. Be present, prepared, and on time for all classes and scheduled meetings.
2. Treat each simulation and exercise as "real" as others rely on us to do.
3. Do not inappropriately reveal confidential information revealed in assignments.
4. Show respect for each others' experience, background, values and dignity.
5. Keep information revealed by or learned about each other in confidence.
6. Support each others' efforts to become more proficient negotiators.
7. Share what you have learned, including from each other, about negotiation.
8. Offer constructive feedback on others' performance and receive it appreciatively.
9. Conduct negotiations according to the Rules of Professional Conduct for Attorneys.
10. Refrain from acts of physical violence (without prior written consent of an instructor).
OFFICE CONSULTATIONS. I am happy to meet with you individually or in groups, to facilitate whatever growth objectives you have in mind.
Professor Cagle is available by appointment, by telephone or on a "drop by" basis-
Office: 5226 Law School E-Mail: rmcagle@wisc.edu
Phone: 262-7881 Home Phone: 231-6884
FIVE WAYS TO SUCCEED IN THIS CLASS
• ATTEND CLASS. Class attendance and participation is essential. Missing class will impair your learning and your grade. Missing three (3) classes – for any reason – results in an incomplete for the course that can be made up only by efforts too horrible to mention in print or polite company.
• ENGAGE FULLY. Active participation in class discussions, performance in exercises, and contribution to the learning enterprise improves your grade and your capabilities as a negotiator.
• COMPLETE THE ASSIGNED NEGOTIATIONS. You will complete about eleven (11) negotiations in this class (see Weekly Schedule). Three (3) of those are recorded out of class: (a) an early baseline negotiation; (b) the mid-term; and (c) the final exam. Attachment B contains all the instructions for completing the recorded negotiations. For each out-of-class negotiation, you and your counterpart(s) must complete a Joint Negotiation Summary Report (copy attached).
• LEARN FROM OTHERS. This course offers an opportunity to broaden your negotiation repertoire by studying how others negotiate. Nothing is more inimical to the development of your skills than to be shackled to your own perspectives and experience. Open yourself to learning from the exercises, our guest faculty, the readings , your instructor and each other. Open yourself to learning from the exercises, our negotiation, including how they experience you as a negotiator. Use these differing perspectives to anticipate the behavior of your future negotiation counterparts and to evaluate, expand and refine your own approach to negotiation.
• REFLECT ON YOUR PROGRESS. The first thing you do this semester is complete a profile that asks you to reflect on yourself as a negotiator. Later, you will complete the Bargaining Style Assessment Tool that adds information about your negotiation style and compares it to your peers. All through this semester you will have the chance to develop your skills and your understanding of your own approach to this very personal form of inter-personal engagement we call negotiation. We do not require you to keep a "negotiation journal" as many negotiation classes do, but, if you decide to keep one or use some comparable method to mark your progress (with all its inevitable setbacks), you will likely benefit from that effort.
CRITERIA USED IN GRADING NEGOTIATION SIMULATIONS
In legal transactions, as in the workplace, the marketplace, world, and everyday life, we negotiate to satisfy our interests (or those of our principals) by securing others' favorable agreement.
Great negotiators are attuned to opportunities present in negotiable relationships and settings. But, when a negotiation involves costs and an insufficient corresponding benefit, agreement usually is not the wiser course. So, saying “No” can in certain circumstances, be a powerful, in not necessary choice. Hence, in this course you will not “lose points” for rejecting a deal that is bad for your client. But, you may lose points if you fail to see (and seize) an opportunity to make a favorable deal. Missing a favorable opportunity (like taking a bad deal) usually reflects a lack of preparation, attention and/or execution.
In this course and in the real world, there is rarely a single correct “solution” to any negotiation. But, there are different grades of quality in negotiation outcomes. These qualitative differences are often accentuated in a class where a dozen or more iterations of the same negotiation take place and are compared.
Securing a quality agreement is the standard for achieving a superior grade.
A quality agreement (in class or elsewhere) has the following characteristics:
a. it provides an optimal return on the negotiator’s investment;
b. the negotiation process was an efficient allocation of time, attention, and other resources;
c. all parties have a common understanding of the terms of the agreement;
d. the terms are comprehensive and complete – nothing material was overlooked;
e. it anticipates and addresses potential implementation or enforcement issues;
f. it will endure–it is not so fragile or illusory that it is can be easily broken or abandoned; and
g. it unfolds in a way that advances any desirable ongoing relationship among the parties in the future.
I downgrade agreements that are either negotiated perfunctory or clearly were reached “just to complete the assignment.”
I apply the following criteria in grading negotiation performances:
1. The quality of the deal reached, if settlement is the wiser choice (see quality discussion above);
2. comparative negotiation outcome (e.g. who got better deals) though this is not the decisive factor in grading. One measure of outcomes that is significant to me is how ambitious an outcome is sought and pursued. I value a good deal higher the pursuit, especially in the face of obstacles and discouragements, ambitious goals for success (either as competitive or collaborative ambitions as situation may demand) as opposed to being satisfied with "achieving" the goal of doing somewhat better than one's "bottom line";
3. evidence that the negotiators understood and employed the strategies, tactics and techniques of effective negotiation taught in this course (or learned elsewhere);
4. performance improvement over the semester. It is highly commendable to systematically learn from one's experience (failures and successes) and to incorporate that learning into later performances;
5. evidence of superior preparation and readiness to negotiate;
6. the “attention factor,” which is the ability to see, hear, or otherwise soak up what is going on as reflected in language, events, changes, signals, expression, perceptions, meanings, or other cues. It should come as no surprise that points are lost for the sin of obliviousness to what is going on in a negotiation (often described as the “Homer Simpson” perspective);
7. excellence in deploying communications that are deliberate, directed to the target audience and are persuasive (including the communication skill of active listening):
8. projection of confidence that garners respect and gets results in negotiation (but definitely not its evil siblings– arrogance, pomposity, smarminess or condescension);
9. demonstration of self-control (especially of one's reactions when under pressure);
10. being seen by one’s counterpart as credible, reliable (trustworthy, even);
11. manifestation of that multifaceted practical intelligence that is best described as savvy. The great value attributed to savvy does not preclude or diminish the valuable contribution of higher order brain functions, such as logic, analytical ability, reasoning, memory discernment and the ordering of relevant subject matter knowledge;
12. the strategic dexterity to adjust for and evolving circumstances and, when necessary, the resilience to recover from unanticipated misfortunes; and
13. anything else that strikes me at the time as significantly contributing to negotiation success.
This comprehensive list of skills, when developed and displayed can improve your grade , but, more importantly, will lead to greater professional success as a negotiator.
Having revealed so much of my inner calculus about grading, candor now compels me to note that grading negotiation performances is an inexact science and teachers can (and do) make some imperfect judgments. But, after nearly 25 years of reviewing negotiations and providing feedback, I still try to get it as right and as fair as I can all the while knowing that the main purpose of my feedback is to improve students' later performance and practice.
ATTACHMENT B: Procedures for Recording and Debriefing the Three Negotiations
Please review these procedures carefully and completely before each recorded negotiation.
There are three (3) recorded negotiations in this class: (a) Baseline; (b) Mid-term Exam; (c) Final Exam. You will be assigned a negotiating counterpart for each negotiation.
You are responsible for the following:
1. Obtain the correct Common Facts and/or Confidential Instructions to represent your clients.
2. Arrange with your counterpart a mutually convenient time for each negotiation. It may be prudent to do so well before the actual negotiation.
3. Prepare thoroughly for each negotiation. As the semester develops, you will have more practice in preparing for a negotiation. Use what you have learned.
4. Negotiations are recorded in Room 2380 in the Law Library (a room behind the computer lab).
Sign-up at the library circulation desk to reserve the recording room. You can also check out the room key there. Follow the operating instructions in the recording room carefully. Watch the monitor to see that both of you are fully in the viewing frame. Be sure the camera is recording both video and audio. You are jointly responsible to see that your negotiation is properly recorded. Keep the door closed while negotiating so that you do not disturb others. Be sure to close and lock the door when you leave. Return the key to the circulation desk.
5. You must complete the negotiations in the allotted time [60 minutes]. Plan accordingly based on these time restrictions. Do not step out of role (as lawyers) once you begin negotiating.
You may take up to three brief breaks during the negotiation. You each are free to initiate one break. A third requires mutual consent. Breaks do not count toward your time limit. Do not turn off the recording during a break. Keep the breaks brief (2-3 minutes). Do not discuss the negotiation with each other during the break.
6. I strongly recommend that you dress for the negotiations in appropriate professional attire. Experience in working with simulations demonstrates that you will achieve a more realistic simulation if you both do so.
7. SELF AND PEER EVALUATION
To get credit for each negotiation, you must complete a thorough peer and self evaluation of your performance in three steps.
First, immediately after your negotiations de-brief with your negotiation counterpart. Get and give an honest and complete assessment on each others' performance. Your are not required to record this de-briefing. This is a good time to prepare the Joint Negotiation Summary Report that is required for each out-of-class negotiation.
Second, review your recorded performance. You will be given an address to find your recording on the law school home page. Reflect on your performance, including your strengths and areas for potential improvement. See if your opponent's observations in the post-negotiation debriefing "rang true." Ask yourself what you learned about the negotiation process and yourself as a negotiator.
Seeing yourself recorded negotiating (or doing anything else) is both an opportunity and a challenge. It is a great opportunity to learn more about yourself. But, be careful not to be too self-critical. Balance is hard in self-assessment. Few people are impressed with how they look on a recording.
Third,
A. For the Baseline negotiation turn in a brief memorandum (no more than a single spaced page) stating your impressions of your performance (the good, the bad and the ugly) and what it felt like to see yourself negotiating.
B. For the Mid-term and Final negotiations, prepare a written self-evaluation of your performance, incorporating what you gained from your own review and your debriefings with your counterpart. Discuss your understanding of how principles, strategies and techniques explored in this course were (or were not) successfully applied. These self assesments should be comprehensive, reflective and candid. But, limit your comprehensive, reflective and candid insights to two single spaced typed pages.
8. Negotiation Summary Report
I must receive your jointly prepared Negotiation Summary Report by the Monday before the class in which we do our post-negotiation review (see Weekly Class Schedule). Turn in your self-evaluations at class, by email, FAX or at my office.
9. DE-BRIEFING WITH PROFESSOR CAGLE
A. Mid-Term. There will be a schedule for you to book individual meeting times with me.
In this meeting, you will first meet with your "client" (either Catherine Craft or the Chairman of the Board of Mind Power Group) to explain the negotiation outcome. I will serve as your client. This is an occasion to practice an important skill - conveying negotiation results to a client.
After the client meeting, we will discuss your negotiation and I will provide you with individual feedback based on my review of your recorded negotiation. Come prepared to discuss your performance as well as any aspects of your progress or learning goals for this semester. The mid-term is an important event in your learning. My hope is that this meeting will help you formulate an individual plan for your professional development as a negotiator.
B. Final Exam. You will each receive a written evaluation of your final exam negotiation performance. You have the option to schedule a follow-up meeting with me to review your performance. While I strongly encourage such a meeting, it is not required and does not effect your grade.
WEEKLY CLASS SCHEDULE
Scheduling Note: In exchange for three (3) classes that will likely run over by about 20 minutes each (Sept. 19, Oct. 24, and Oct. 31), I am providing you with NO CLASS on November 21st (the day before Thanksgiving). In negotiation, we call this "reciprocity" or "a really sweet deal." If you have another class immediately after ours on those dates, I expect you to be on time for your other class.
September 5 - First Class
CLASS PREPARATION:
* Complete the Assignment for the First Class (emailed to all registered students)
* Turn In your Student Profile at the first class
IN CLASS SCHEDULE:
# Introduction to the Course (Read the Syllabus - it is all there)
# Negotiation 101 (a discussion of some core negotiating principles)
# ICN-1: Darrow Book Sale Negotiation and De-Briefing
# Explanation of Bargaining Style Assessment (see Appendix A to Shell)
+ Handouts: 1. Bargaining Style Assessment Worksheet
2. The Poet and the Photographer negotiation material
[N.B. Assignment for the Poet/Photographer negotiation will be made at the end of the First Class]
September 14 - Second Class
CLASS PREPARATION:
* Read Shell: Chapters 4,5 & 6 and (pages 242-250) but only after completing the BSA Instrument (Shell Appendix A)
* Read Negotiation Reader: Items 1 - 4
* Complete the Bargaining Style Assessment Instrument (pages 237-241 Shell)
* Turn in the BSA Worksheet for Prof. Cagle by Monday, September 16
* Prepare for the Poet and the Photographer in-class negotiation
IN CLASS SCHEDULE:
# Negotiation 102: Skills to develop during this semester
# Discussion of the Bargaining Style Assessment Instrument you completed
# ICN-2: The Poet and the Photographer negotiation and de-briefing
+ Handout: Magna/Delivery Negotiation materials [your first out of class negotiation]
September 19 - Third Class
Class Preparation:
* Read Shell: Chapters 7 and 11
* Prepare for the Magna/Delivery negotiation preparation meeting
IN CLASS SCHEDULE:
# Are you an effective listener? A discussion of why it matters
# How to prepare for a negotiation
# Team meetings to preparte for the Magna/Delivery negotiation
NOTE: This class will be extended by approximately 20 minutes
+ Handout: Roberts/Buenelli negotiation materials
September 26 - Fourth Class
CLASS PREPARATION:
* Prepare for the Roberts/Buenelli in-class negotiation
* Turn in the Magna/Delivery preparation worksheet
IN CLASS SCHEDULE:
# ICN-3: Roberts/Buenelli negotiation and de-briefing
# Dealing with clients in negotiation
# Negotiation 103: Strategy and tactics
+ Handout: A Civil Action - Negotiation in movies (w/attachment for 5th class)
MAGNA/DELIVERY BASELINE NEGOTIATION MUST BE RECORDED BETWEEN SEPTEMBER 19 - OCTOBER 1
October 3 - Fifth Class
CLASS PREPARATION:
* Turn In the Magna/Delivery negotiation Joint Summary Report by Monday October 1st
* Turn In the Magna/Delivery brief impressions memo (see instructions for baseline negotiation)
IN CLASS SCHEDULE:
# Magna/Delivery PNR
# Learning about negotiation behavior from movies - case in point: A Civil Action
+ Handouts: 1. Craft/MPG negotiation materials [your second out-of-class negotiation]
2. Sally Swansong negotiation materials
Craft/MPG Mid-Term Exam negotiation must be recorded between October 4th and 15th.
NOTE: You must schedule a mid-term debriefing with Professor Cagle.
October 10 - Sixth Class
CLASS PREPARATION:
* Read Shell: Chapters: 8, 9 and 10
* Prepare for the Sally Swansong Fish Bowl negotiation
IN CLASS SCHEDULE:
# Team preparation for the Sally Swansong Fish Bowl negotiation
# ICN-4 Sally Swansong Fish Bowl negotiation and de-briefing
# Introduction to electronic negotiations
+HANDOUTS: Materials for email negotiation "The book negotiation" (with UC-Hastings negotiation class)
October 17 - Seventh Class
CLASS PREPARATION:
* Turn In the Craft/MPG negotiation Joint Summary Report by Monday, October 15th
* Turn In the Craft/MPG self evaluation in class (see instructions for mid-term)
* Students assigned as mediators in Carondale High School mediation are to meet with Professor Cagle
(out of class). This meeting will be scheduled in advanced.
IN CLASS SCHEDULE:
# De-Brief Craft/MPG negotiation
# Guest Facutly: Special Agent Joshua Mayers, Federal Bureau of Investigation
# Discussion of crisis and hostage negotiations
+ HANDOUTS: Exploring and describing cultural experience - an exercise (for 9th class)
THIS EVENING: Class Party at Professor Cagle's home @ 6:30, 109 Ozark Trail, 231-6884.
October 24 - Eighth Class
CLASS PREPARATION:
* Read the Negotiation Reader: Section Four
* Turn in the Book Negotiation OUTCOME report by Monday, October 22nd
* Students assigned as mediators in Carondale High School mediation are to meet with Professor Cagle
THIS MEETING WILL BE SCHEDULED FOR THURSDAY OR FRIDAY, OCTOBER 25 OR 26
IN CLASS SCHEDULE:
# De-brief the book negotiation (email negotiation w/UC Hastings)
# Video of Final Offer (collective bargaining negotiation) and follow-up discussion
NOTE: This class will be extended by approximately 20 minutes
October 31 - Ninth Class
CLASS PREPARATION:
* Read Negotiation Reader: Section 5 and begin Section 6
IN CLASS SCHEDULE:
GUEST INSTRUCTOR: Prof. Donna Erez-Navot
# A preliminary discussion mediation and other alternative dispute resolving techniques
# In class exercise: Exploring and describing cultural experience
# Discussion of Cross Cultural Negotiations
NOTE: This class will be extended by approximately 20 minutes
November 7 - Tenth Class
CLASS PREPARATION:
* Read Negotiation Reader - Section 6
* Prepare to participate in the Family Restaurant Dispute mediation
IN CLASS SCHEDULE:
GUEST INSTRUCTOR: Prof. Donna Erez-Navot
# ICM-5: Family Restaurant Dispute mediation and de-briefing
# Discussion and demonstration of what can go wrong (and what can go right) in a mediation
November 14 - Eleventh Class
CLASS PREPARATION:
* Read Negotiation Reader: Section 6
* Turn in the Carondale High School mediation Joint Summary Report by Monday, November 12
IN CLASS SCHEDULE:
# Guest Faculty: Attorney Mark Frankel, mediator
# De-brief Carondale High School mediation
# Discussion of how mediators think/work and how lawyers represent clients in mediation
+ Handout: Hoster/Smith negotiation materials [your fourth out of class negotiation]
Hoster/Smith Final Exam negotiation must be recorded between November 14 and December 5
November 21 - NO CLASS - Happy Thanksgiving
November 28 - Twelfth Class
CLASS PREPARATION:
* Read Negotiation Reader: Section 7
IN CLASS SCHEDULE:
# Guest Faculty: Attorney Stephen Hurley, criminal defense lawyer
# Discussion of how negotiation is carried out in the criminal justice system
# INC6 - A problem solving solution to the defense of the accused
December 5 - Thirteenth Class
CLASS PREPARATION:
* Turn In: Hoster/Smith negotiation Joint Summary Report by Monday, December 3rd
* Turn In: Hoster/Smith negotiation self evaluation in class (see instructions for final exam)
IN CLASS SCHEDULE:
# Hoster/Smith PNR
# Guest Faculty: Former negotiation students now practicing in diverse professional settings
Attorney Rosisin Bell - Chilton, Yambert and Porter, LLC
Attorney Mike Carlson - Gathering Waters Conservancy
Attorney Frank Sullivan - Wisconsin Department of Justice
Attorney Erin Keesecker - Whyte Hirschboeck Dudeck S.C.
# Discussion of "Where do we go from here?"
Negotiation Summary Memorandum
– PREPARED JOINTLY –
Names of Each Negotiator Party Represented
____________________________ ________________________
____________________________ ________________________
____________________________ ________________________
Place of Negotiation:
Duration:
Active collaboration, honest reflection, and thoroughness in preparing this memorandum will provide practical insights that will help each of you expand your negotiation repertoire.
THE OUTCOME OF THIS NEGOTIATION WAS AS FOLLOWS.
WE BELIEVE THESE FACTOR(S) MOST INFLUENCED THE OUTCOME OF THIS NEGOTIATION?
THE MOST CHALLENGING ASPECT(S) OF THIS NEGOTIATION WAS/WERE? HOW WE DEALT WITH IT.
IN THIS NEGOTIATION WE LEARNED (OR CONFIRMED) THE FOLLOWING THAT CAN BE USEFUL IN FUTURE NEGOTIATIONS?
THESE ISSUES OR QUESTIONS SHOULD BE ADDRESSED IN DEBRIEFING THIS NEGOTIATION IN CLASS.
