For diplomats - or those who think that their diplomacy skills could use some polishing! Either way, negotiation competition gives students the chance to hone their skills at the negotiating table.

Two teams, each of two solicitors, meet to discuss a dispute between their clients. Each team is provided with a description of the fact scenario. Some facts are known to both teams, but each team has some secrets too. Each team is also armed with instructions from their client detailing exactly what outcome they should seek – and what should be avoided at all costs.

The negotiation itself can last for up to an hour, after which each team is given a chance to review their own performance before a winner is picked. The winner is not necessarily the team that walks away with the better deal, but the one which gets closest to their client’s wishes.

Competition Videos

Reflections: Negotiation

Reece Corbett-Wilkins and Nicholas Ferrari

This guide is intended to be a touchstone piece to inform your consideration of how to best prepare for and compete at ALSA. You should use each point to consider how you may be able to improve your practice. Whether you incorporate these ideas in your own style is up to you, we do not expect this guide to be followed word for word. However if you do not follow our approach, we suggest you still consider whether your own methods cover the substance of the material. We wish you the best of luck in the competition and are confident that you will enjoy the experience, irrespective of the outcome.

Background to the competition

As you are aware from your university competition, negotiation is a skill-based competition involving the resolution of parties’ disputes by agreement. The only difference between your university and ALSA competitions is that the degree of skill and experience of your competitors is generally greater. Typically, the ALSA competition schedule will span over a number of days, during which there will be at least 3 preliminary rounds and 3 final rounds. The preliminary rounds are round robin, while the final rounds are elimination.

The ALSA Conference is about more than just competing. There are a number of educational, social and networking events on offer. We recommend that you make the most of the Conference by participating in all aspects and events. You will take more away from the experience if you do this. Remember, there can only ever be 1 winner of the competition. Please do not feel that you should have to stay at home and not enjoy yourself. From experience, you can make the most of all of the events and still do well.

While we recognise that as law students we are sticklers for strict compliance with rules, it is important to recognise that an appeal process very rarely results in the overturning of a decision (we have never seen an instance where this has occurred). Furthermore, an appeal affects a large number of stakeholders’ time, including your team, the opposing team, your ALSA representative, the appeal’s panel and the ALSA Council. We recommend that the appeal process should be used sparingly and you should consider whether you have appealable grounds, whether they are reasonable and the impact of making appeals on your brand and reputation. There is nothing worse than a sore loser.

Personal experiences

We first competed at the ALSA Conference in 2010 in the Client Interview Competition. We were fortunate to win this competition. As a consequence, in 2011 we represented Australia at the International Client Consulting Competition in Maastricht, the Netherlands, where we placed 2nd. We then went on to compete at the ALSA Conference in 2011 in the Negotiations Competition. We were fortunate to win this competition. As a consequence, in 2012 we represented Australia at the International Negotiations Competition in Belfast, Northern Ireland, where we placed 7th. In addition to this, we have judged at a university and intervarsity level for a number of competitions and have orchestrated numerous competitions. In this light, our guidance is based on our experience as competitors and facilitators, not as practitioners.

As demonstrated above, there are a number of ongoing opportunities that arise through participating in the ALSA Conference. We would not have been able to achieve what we have without the assistance of countless students and student societies, practitioners, academics and family members. We encourage you to use your experience to help others.

Competition preparation (pre-ALSA)

For the sake of brevity, we list the following ideas for your consideration.

  • Consider literature – see list below for some suggestions

  • Practice, Practice, Practice – we were fortunate that Macquarie University organises a competitions preparation weekend before ALSA where all competitors can practice their respective competitions. If your university law society does not run such an event, we recommend that you organise your own practice sessions and in the event that you cannot source another team, verse each other. We recommend that you contact your University ALSA representative for examples of previous questions

  • Develop teamwork – it is crucial to recognise that teamwork can be enhanced. This can be achieved through understanding each others expectations, developing trust and rapport and a strategy for best communicating with each other during and after each round

  • Judge a round – by being a fly on the wall, you will better appreciate otherwise unobservable traits you might exhibit, the importance of various aspects of the negotiation, as well as the nuances of judging   

  • Gather necessary materials – such as stationary, compendiums, appropriate clothing and additional academic resources to take with you

  • Rest assured – although you are coming up against a high caliber of competitors, most competitors are in the same situation as you having just come out of exams and with other competing pressures

Round preparation (at ALSA)

For the sake of brevity, we list the following ideas for your consideration.

  • Consider your roles in preparation of the negotiation – for example do you prepare together or separately and then come together, does one party focus on a particular aspect of the negotiation preparation and then collaborate at a later stage in order to be effective with your time

  • Know your material – you need to have a thorough understanding of the facts including how the facts reflect your client’s multiple and sometimes competing interests and what further information is pertinent that is not express. We recommend that you consider the following:

    • BATNA

    • WATNA

    • Scope of authority to agree

    • Should negotiations fail, what options do you have available to progress the matter

    • Whether agreement is necessary

    • Ancillary considerations such as time being of the essence

    • Strength of your client’s case

    • Weaknesses in your client’s case

    • Interests

    • Needs

    • Wants

    • Outcomes

    • Priority of interests, needs, wants and outcomes

    • Possible options to meet interests, needs, wants and outcomes

    • Processes required to meet interests, needs, wants and outcomes

    • Leverage points

    • Concessions

    • Identify opportunities to ‘grow the pie’

    • Related interests of parties not in the negotiation

    • The importance of the relationships between the opposition’s client and your client post negotiation

    • Client instructions – particularly if they are conflicting or ambiguous, and what you need to walk away with to satisfy your client

    • What terminology such as without prejudice, confidentiality, good faith and in principle mean and practically require of you

  • Know your client – consider who you are representing and whether you have authority to act as well as your professional and ethical obligations

  • Recognise your professional and ethical duties – to the court, to each other, to the client

  • Know your opposition – brainstorm the opposing client’s interests, needs and wants however do not close yourself off to new possibilities. Also, consider how you might express your client’s interests, needs and wants to match that of your opposition. For example, always ask yourself, if I were their client, What’s In It For Me (WIIFM)?

  • Consider the legal landscape – what legislation, regulations, rules, actors, institutions and processes govern the dispute

  • Consider your strategy – prepare your agenda and statement of interests, delegate responsibility between yourselves about your individual role and obligations during the negotiation and how you will deal with newly presented information that arises and opposing personalities

  • Interest based negotiation – it is our experience that while the negotiations process is designed to be a collaborative interest based exercise, some issues are going to be positional in their nature, as will some teams in their approach

  • Consider the type of negotiation – ask yourself; is it a dispute resolution or a relationship building exercise?

  • Know the ALSA rules and guidelines – know the rules and appeal process as these will no doubt be different to your university competition

  • Practice your post consult strategy – how will you succinctly and successfully convince the judges that you have excelled in some areas but that you also recognise opportunities to improve, without sounding vain

Tips and Tricks during the round

For the sake of brevity, we list the following ideas for your consideration.

  • Professionalism and courtesy – always treat the opposition with respect throughout the round. For example, listen to the other side, allow them to finish, do not talk over them, do not respond in a hostile manner, work collaboratively, consider your body language and thank the other side for contributions throughout

  • Do not battle for the agenda – allow both teams to agree on an agenda and always ensure that it is referred to throughout the negotiation as a way to track progress and ensure it has purpose

  • Agreement – do not feel obligated to agree, in many circumstances it might not be possible or feasible. If you do not reach agreement, ensure that you put a framework in place for resolving unresolved issues at the next meeting

  • Control over the process – the team that maintains control of the flow of the negotiation will usually win, as that team will ensure that their client’s interests and issues are considered more fully and resolved more favourably. However understand that control over the agenda does not equate to control over the process

  • Summarise throughout – where possible, summarise progress to date and, where agreement is reached, ensure each side is clear on this and clarify their understanding of the agreement

  • Roadblocks – recognise that where the teams have hit roadblocks and, if the discussion is not progressing or if certain aspects will take too long to resolve, it might be better to move to a new area of discussion with the unresolved issue to be resolved following further discussion or client instruction

  • Negotiation means that – reference to law or legal causes of action should not be made unless a fundamental legal interest needs to be protected (ie confidentiality), as this is a genuine opportunity to negotiate an outcome irrespective of the history of the matter

  • Build on the good suggestions of the opposition – if the other side comes up with a good suggestion, recognise this, take it on board, add to it, and redeliver it

  • Options are not solutions – recognise that options are not solutions. Before agreement takes place the options need to be developed through discussion and reality tested  

  • Reality test options – firstly consider whether your client would accept such an option and then consider whether the other side’s client would accept the option. The best teams will address whether the client(s) would logically and emotionally accept the option as a solution to a problem and whether it is practical or achievable

  • Grow the pie – consider whether by adding in new elements both clients can derive a better outcome. For example, if there is a dispute between a mechanic and a business owner for fleet servicing in relation to one vehicle, if both parties can agree on a discount exclusivity agreement over time, both parties benefit more long term than they would if the focus is on the resolution only of the current dispute. Although this task is hard to achieve, consider where both parties can join forces to improve their best-case scenario where possible

  • Present multiple options to the client – recognise that a client might appreciate an array of options to choose from and to give them a choice, especially where their instructions are not clear or the issue is not resolved in the negotiation

  • Calling the break – be aware that you have an opportunity to call a break during the negotiation and ensure that when you do, that you clearly enunciate the roles of each party during the break so as to ensure it is time well spent. For example, while calling the break, specify that each team should come back with their best offer with relation to an issue, or that each team should come back with a view about an issue

  • Be flexible – be willing to adapt your strategy to the opposition’s style. For example, some teams may wish to use a whiteboard

  • Use of resources – consider whether and when use of additional resources such as whiteboards, prepared contracts and deeds of release may be useful or appropriate, if at all

  • Wrapping up – towards the end of the negotiation leave sufficient time to summarise progress, assign responsibilities between the teams and agree to the next steps to progress the matter

  • Be mindful of your audience – it is our experience that students, commercial lawyers, mediators, arbitrators, members of the judiciary and academics will judge you. While they bring their own strengths, do not assume that they will be experts in the area of law that governs your dispute. They will also have preferences of different styles and language when conducting the negotiation however do not let a preconceived idea of their preferences govern your approach

  • Post consultation – do not underestimate the importance of the post consultation, a team can often win or lose based on the way in which they communicate the strengths and weaknesses of their performance and why they conducted themselves in a certain manner

  • Reflective practice – we recommend you actively engage in reflective practice after each round to identify your individual weaknesses and strengths and to develop trust and rapport with each other with a view to improving  

Further resources

We recommend you consider the non-exhaustive list of materials below:

  • Getting to Yes

  • Getting Past No

  • University Guides and materials

  • ALSA materials

  • Those available on international negotiations competitions websites