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Dispute Resolution Society – Competition Winners. Part II – Negotiation Round

For the negotiation round, I was settlement counsel. This is a made up position for the competition, but an important step towards our win nonetheless. Settlement counsel is the first team member to speak to the judges, but cannot help during the actual negotiation. The pre-competition orientation had just clarified that settlement counsel does not sit at the negotiation table and does not aid during the negotiation. This is very different from ABA Competitions, where there are two negotiating advocates, but there is not a client at the table. Although admittedly, we were all confused, the rules were made clear during the orientation. Or, so we thought. As soon as we walked into the room, I asked the timekeeper/student ambassador where I should sit as settlement counsel. He was a little confused. The other team adamantly pushed for their settlement counsel to sit at the table. We carefully disagreed, as the round hadn’t even begun, and we were negotiating the facts. The other team’s coach was really trying to show us that we were being silly. Hannah nicely, but firmly, reminded the team and their coach of what we had just been told during the orientation presentation. The student ambassador left the room to check on the rules. He returned, told settlement counsel to sit on the sidelines, as we could not take part in the negotiation. It was an interesting way to begin the entire competition, and showed the fighting position that this first round team decided to take.

I had to present our entire strategy, before the negotiation began, to the judges. This is the only way the judges will understand whether or not you stuck to a strategy, competently advocated for your client’s “wishes,” and held your intended position, or whether you caved and are a poor negotiator who is easily led by the other “attorney.”  I spoke loudly, and put myself in front of the judges’ panel like I was giving an oral argument. We were ushered out of the room when the other team gave their strategy to the judges, but we were told they lost points for standing in the back portion of the room when delivering their position. One of the judges was an older gentleman who had difficulty hearing, and so awarded us more points for catering to him. Speaking clearly, loudly, and directionally toward the judges became a huge competitive advantage. After the strategy conferences, everyone entered the room, and the advocating counsel and their clients sat down at the table. I sat near the judges, but in a position where I was watching my team’s faces.

Laura and Hannah were beautiful. The other team’s “counsel” came in “boxing,” and treated the negotiation like it was an interrogation. The opposing counsel literally sat on the edge of her seat the entire time. I observed the team, as I was able to offer advice during the five minute break and I could speak during the self-evaluation at the end. Hannah was the perfect client, reaching across the table to Dr. Smith and sounding apologetic for the situation without admitting fault. Laura often reminded the opposing counsel of how brokerage firms really work, without seeming to put down the counsel. Where Hannah was soft like a neighbor and showing real interest in coming to a reasonable and acceptable solution, Laura was firm and stood up for her client’s real interests in being able to pay for her own children going to college. The silent and subtle communications between our team members were perfect.

One significant moment was when the opposing counsel accused our broker, Hannah, of illegal dealings that violated such and such FINRA regulation. Laura furrowed her brow slightly and asked what the exact language for the regulation said. The opposing counsel, still on the edge of her seat, opened her three inch thick binder and began searching for the rule. Laura only had a small folder in front of her, with this same rule in it (we had all memorized the pertinent rules), but never touched her folder during the entire negotiation. The huge binder might have been an intimidation tactic, or actually needed, but I think it was more intimidating that Laura had a slim folder in front of her, and never had to refer to it in the first place. The room was silent as the girl searched through document upon document. It was an interruption in the negotiations, sure, and we only had an hour to talk, but a big mistake was when looking at her binder materials opposing counsel said, “you all can keep talking while I look for this.” Err…what? Her client was a great actor, but that is not something an attorney should say under the circumstances. It’s an easy way to end up in trouble if the client is completely exposed as the only one paying attention to the discussion.

When she found the rule, she read the snippet she wanted everyone to hear. Laura asked her to read the entire rule, knowing full well what it said. The rule supported our client’s actions, and Laura knew it wouldn’t hold up once the entire phrase was on the table. Opposing counsel tried to back step, but the law was completely on our side, and it was evident Laura knew more than enough to bring the settlement figure to a low number. Once numbers did start flying between the teams, Laura showed her true powers of patience. The opposing team just kept throwing out lower and lower numbers as Laura repeatedly refused the numbers they pushed. Had we been representing a real client, Hannah would have been extremely happy with the outcome.

The judges loved us. One judge even said to the opposing team that they should “be more like Laura.” We were beaming. The success was made even greater when the girls told me that the coach for the Cornell team (we aren’t allowed to know what school the teams come from until the awards ceremony), who was sitting against the wall behind her team, was rolling her eyes, shaking her head, and glaring at my teammates. Hannah said it only made her fiercer. We were only one of two teams out of the 22 competing teams without a coach, and we may have been the only all girls team in the competition.

After the negotiation round, we shook hands with the now extremely friendly Cornell team. It was true professionalism. They congratulated us and we them on a job well done. We learned a little from each other during our chat as we asked questions on strategy and noted things the others had done. We then hurried to a quick lunch as we wanted more time to prepare for the afternoon mediation round, a complete wild card.

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