Business Lawyering Listening, Drafting, and Negotiating final paper

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1 Business Lawyering: Listening, Drafting, and Negotiating final paper Student’s Name University Affiliation Course Name Professor’s Name Due Date

2 Business Lawyering: Listening, Drafting, and Negotiating final paper Section One: Negotiation Preparation Demand Letter December 16, 2022 Dawn Meyer Human Resources Department (Employer) Honeycomb Inc. 3 rd Plaza Dear Sir, My name is Dawn Meyer, and I hereby request to have a meeting with you as soon as possible. The purpose of this meeting is to discuss the potential of reaching a mutually beneficial agreement for both parties. I have been employed with you for the past two years and am highly motivated, reliable, and professional. It is important that I feel respected and appreciated by my employer. Recently, some issues have arisen which are causing me to become increasingly frustrated with my job. This includes a lack of respect from colleagues, a lack of appreciation from superiors, and inadequate compensation for job duties. Besides all the abovementioned issues, I have been wrongfully terminated without being properly explained.

3 I am willing to negotiate with you to resolve this matter. In the negotiation, I would like you to consider my years of service, dedication, and professionalism. Given these circumstances, we must resolve these conflicts together and develop an agreement that will benefit both parties involved. With that being said, I look forward to your response on scheduling a meeting so we can start this negotiation process. It will review negotiation principles, discuss how parties often frame their discussions regarding the law and evaluate key terms such as representations and warranties, indemnification clauses and escrows, price adjustments, termination rights, and restrictions on post-closing activities. Further, it will provide best practices for assembling and writing the documents to ensure they are enforceable and meet the goals of the parties. Considering the potential legal claims of discrimination and breach of contract, it is important to use negotiation strategies that may be successful in achieving Dawn's desired outcome (Roger & William, 2011). For instance, having an understanding of the negotiation process and preparing for different scenarios could help create leverage during the negotiation and increase the likelihood of achieving a favorable outcome. Additionally, being aware of the other party’s interests and assessing the value of different forms of relief could also be beneficial. Ultimately, using effective negotiation strategies and understanding both parties' desired outcomes can help me achieve a satisfactory resolution to her dispute with Honeycomb Inc. With these considerations in mind, it is important that this strategy reflects Dawn's interests and any potential legal issues I could raise to maximize my chances of achieving a favorable outcome. Your reaction to this letter and your behavior afterwards will decide whether this situation is addressed peacefully or via litigation. Failure to react to this letter will not make this problem

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4 disappear; rather, it will simply compound the situation, raise costs, and make any financial settlement far more expensive. If our client is entitled to collect lawyers' fees, your risk increases as this case go on. Upon receiving all the requested information, I will be able to make a compensation demand on Darryl Jones and Bob Surley to resolve this situation. If I do not hear from you by 16th Dec 2022, I will presume that I content not interested in a negotiated resolution and proceed with action accordingly. I look forward to hearing from you soon. Sincerely, Dawn Meyer Negotiation Preparation Template 1. Introduction and Overview of the Situation My name is Dawn Meyer, and I am requesting a meeting with my employer to discuss the potential of reaching a mutually beneficial agreement with my employer to improve job satisfaction and performance. I have been employed with Honeycomb Inc. for two years, and during this time, there have been several issues which have caused me to become increasingly frustrated with my job. I am an employee who feels frustrated and underappreciated by my employer, specifically due to a lack of respect from colleagues/superiors and inadequate compensation for job duties. Additionally, I am open to exploring alternative dispute resolution

5 methods or a combination of different settlement resolutions. By scheduling a meeting and engaging in the negotiation process, I hope we can reach a satisfactory agreement that will result in improved job satisfaction and performance. 2. Goals and Objectives My goal is to develop a mutually beneficial agreement that will result in improved job satisfaction for myself and increased job performance overall. My objectives include: gaining an increase in compensation, receiving better respect from colleagues and superiors, obtaining positive job reviews and appraisals, as well as provisions for better job security. 3. Strategies and Tactics I will use persuasive tactics such as communication, persuasion, and negotiation skills to reach a successful agreement with my employer; I will also focus on the benefits and drawbacks of each situation to come up with a reasonable outcome. It is also important to consider negotiating tactics such as the use of alternative dispute resolution methods or a combination of different settlement resolutions. Additionally, having a clear understanding of the other party's interests and being aware of potential legal issues can be beneficial in achieving a favorable outcome ( Jones, 2015) . The negotiation preparation should also include a strategy for negotiating with Darryl Jones and Bob Surley. It is important to clearly understand the company's position and the goals of each participant. For instance, it is possible that Honeycomb Inc. may not want to take the risk of reinstating Dawn due to her Covid-related illness, but may be willing to negotiate some other form of relief, such as a lump sum payment or a severance package. In preparation for negotiation, it is important to consider researching Honeycomb Inc.'s history, understanding their financial situation, analyzing her claims and the potential legal theories that could arise from them, as well as preparing for different scenarios to increase the likelihood of

6 achieving a satisfactory outcome (Andrew, 2005). With these strategies in mind, it is important to use negotiation strategies tailored to Dawn's interests, aiming to create leverage and maximize her chances of achieving a favorable resolution. 4. Possible Solutions I will attempt to come up with beneficial solutions for both parties involved. Some possible solutions may include providing better incentives and rewards for job performance, and increasing compensation. Also, depending on the employer’s response, I would like to come to an agreement as soon as possible. 5. Final Outcome My goal is to reach a mutually beneficial agreement allowing for improved job satisfaction and increased job performance. 6. Plan of Action During our meeting, I will use my persuasive tactics, such as communication, persuasion, and negotiation skills, to discuss the potential of reaching an agreement that benefits both sides; if we cannot agree on suitable terms, I will explore other options, such as legal action or mediation services. In particular, understanding legal theories, negotiation strategies and tactics, and researching the other party's interests and financial situation will be essential in achieving a satisfactory resolution to Dawn's dispute 7. Resources I am prepared to use any resources that are available to me, such as the help of a lawyer or mediator, to reach an agreement which benefits both parties involved. Thank you for your time and consideration in this matter.

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7 I look forward to hearing from you soon and discussing our potential options further. Sincerely, Dawn Meyer Section Two: KJH/Malundi Reflection When I was working on the KJH/Malundi negotiation, I used three soft skills to my advantage. The first was silence. When we went into the negotiation, we did not know the other team's strategy, so it was important for us to listen to what they were saying and take notes. Because of this, I did not interrupt them when they were speaking so that I could hear everything they had to say. In the KJH/Malundi negotiations, using several soft skills effectively achieved a successful outcome for both parties ( Jones, 2015) . The first skill was “ask and listen,” which was used to help facilitate an open dialogue between both parties. Asking questions about each other's interests enabled each party to gain insights into what the other party wanted from the negotiation process and better understand their perspectives and objectives. This helped create a more collaborative atmosphere and allowed for fruitful discussions on potential solutions or compromises that could be reached. In my experience with KJH/Malundi, listening is key to understanding what they wanted out of the deal. For example, when we were negotiating our agreement with them, they wanted an exclusive license to use our technology in their country. At first, we told them no because we didn't want to give up our ability to sell our technology elsewhere in Africa. But after listening carefully to what they said about why it was important for them to have an exclusive license— that it was a way for them to show their citizens that they were investing in their future—we

8 realized that maybe it would make sense for us too if we could get something else in return, like money or resources that would help us grow our business faster than we would without an exclusive license. The second soft skill that proved useful during our negotiation was "ask and listen." Just because you ask a question does not mean you will receive an answer, so it is important for you to listen carefully after asking your question to make sure that you understand what is being said. When we spoke with our counterparty during the negotiation, I asked questions about their business so that they could explain their goals before discussing how KJH could help them achieve them. I have learned a lot about soft skills through this class. I think the most important part of being successful in a negotiation is listening and asking questions. The more you understand the other party's needs and interests, the better you can craft an agreement that meets both parties needs. Another effective soft skill utilized here was reflective listening, where one can restate back what they believe the speaker has said to ensure accuracy of understanding. This allowed both parties to verify that their perspectives were being accurately conveyed and allowed the other party to elaborate further on their ideas if needed (Roger & William, 2011). In the KJH/Malundi negotiations, I was able to use my soft skills effectively. We were negotiating a contract with a company in Malundi, which was very important to us. The main thing we needed from this contract was our ability to sell our product in Malundi. The other party had some issues with our product, so we had to negotiate with them about what exactly was wrong with it and how we could solve their problems. I used silence effectively when I didn't want to give away too much information about our thoughts. Silence can be very powerful. After all, when people are talking and you don't respond immediately, they will often continue talking because they

9 want your input. In this case, it helped us get more information from them instead of just saying "yes" or "no." Active listening was another skill used in this negotiation process. Active listening enables one to pay attention to what is said and how it is said. This allows for a deeper level of understanding between both parties as one can detect nuances or additional information from body language or tone of voice, which may help guide the conversation (Roger & William, 2011). Another way that silence is used effectively is when you have a good idea but don't want anyone else knowing yet because you may need more time before presenting it or because you don't want anyone else stealing your idea before it's ready for presentation. I also used ask and listen effectively by asking questions that would help me understand what they wanted and listening carefully to what they said. One of the best ways to get people talking was to ask them questions like "What do you think?" or "So, how did it go?" In addition to utilizing these soft skills, teamwork was fundamental in achieving a successful outcome. By working together towards a common goal, both parties were able to come up with creative solutions that addressed each side’s interests while maintaining a good relationship between them (Roger & William, 2011). This allowed both parties to leave the negotiations feeling satisfied with the result and ensured that they could move forward in their relationship on positive terms. In the KJH/Malundi negotiation, I noticed that a few soft skills were used effectively by both sides in the negotiations. One of these soft skills is silence. Silence can be used as a way to let the other party finish their thought and make sure they are comfortable before you continue speaking. It can also be used to gather your thoughts before replying. Silence is important in any business interaction because it allows people to feel comfortable and be heard, which helps build trust and rapport with each other.

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10 One of my favorite soft skills from the class was "listening as a martial art." Listening helps you understand what someone else is saying so that you can better respond to their needs or concerns. During our negotiation with Malundi, we learned a lot about their company by listening closely to what they were saying. We were able to hear how their goals differed from ours, and we were able to discuss how KJH could help them achieve their goals while helping us achieve ours. Another skill that we learned in class was “ask and listen.” The participants in this negotiation did an excellent job of asking questions about what was important to each side, which allowed them to understand what was important for the other party so that they could better craft a deal that would meet everyone's needs without sacrificing much of their positions. This skill helped lead to a successful outcome because it allowed everyone to feel like they were being listened to and understood, which fostered trust between parties instead of creating an adversarial relationship where one side feels like they were being taken advantage of. This is a skill that anyone can use to develop and maintain better relationships with others, which helps build trust in the long run. Overall, it is clear that utilizing these soft skills in negotiation situations can be incredibly advantageous as it allows for dialogue, leading to creative solutions being reached by both parties. Moreover, teamwork is essential and should not be underestimated when working towards a common goal. By understanding the importance of the different soft skills discussed here, one will be more equipped to achieve successful outcomes when negotiating with others. Section Four: What is success in a negotiation? How do you explain the failure to a client? Scenario 1 The deal's outcome measures success in a negotiation. All parties should be satisfied with the terms of the agreement, and each party should feel that they received a benefit or advantage

11 from the transaction. Successful negotiations will result in mutually beneficial and equitable contracts for all parties involved. The real estate developer is in a tough spot. It's been approached by a firm that wants to buy the developer's three parcels of land in Austin, Texas (Deborah & Peggy, 1999). However, it has also received a financial analysis prepared by a university student that shows incredible returns. The client has marked the study “Prepared by the University of Texas, Austin (UT)” (Deborah & Peggy, 1999). The developer also has an environmental statement completed, concluding that the land is contaminated so badly that it requires cleanup under the law and is hazardous. The developer can't sell land that isn't suitable for development, so it must take action before proceeding with any sale or purchase agreement. The developer should explain to the firm the risks associated with purchasing this property, noting the environmental statement and potential legal complications. The developer should also explain that the financial analysis is not a reliable source of information given its source and that it should not be used to make any decisions. The developer should clarify that any agreement reached between the two parties must take into account all of these risks and that they will need to be addressed before any transaction is finalized. First and foremost, the developer owes its clients an ethical duty not to misrepresent or mislead them about their property. The developer should seek legal advice from an attorney familiar with real estate law in Austin (Deborah & Peggy, 1999). The attorney should inform the developer about their duty not to sell the contaminated property or otherwise misrepresent it as suitable for development. The attorney should also advise the developer on what steps they need to take to remedy any problems with their parcels so they can proceed with selling them on their terms instead of having someone else dictate those terms for them. Finally, the attorney should

12 guide how to move forward with negotiations and ensure that any agreement between the two parties benefits both sides. In the event that negotiations fail, the developer must explain to their client the reasoning behind why they can't reach a satisfactory deal. This should be done in an empathetic, thoughtful manner and with the understanding that the client has invested time and money into this potential project. The developer should emphasize that they did their best to negotiate a fair transaction, but ultimately it didn't work out, so they need to look for another opportunity to get what they want (Deborah & Peggy, 1999). The client's best interests should always be considered throughout the negotiation process. The developer needs to consider their client's bottom line and understand the risks associated with any potential agreement. If the deal isn't in their client's best interest or puts them at a disadvantage, then it should not proceed. The books LMA, NMA, and NBT, provide an excellent foundation for business law students interested in honing their negotiation skills. In addition to these reading materials, supplemental readings posted on Canvas Topics and Assignments will further enrich students’ ability to read successfully. Secondarily, I would seriously consider the environmental statement and potential legal implications if this were my client. I would also conduct additional research, including a more reliable financial analysis, to fully understand the situation before recommending that my client meaningfully proceed. Indeed, it is important to be able to listen while negotiating and critically analyze the facts and data presented. Therefore, negotiation is a delicate process requiring thoughtful consideration of all facts, data, and interests to come up with an agreement that works for everyone involved. Business law students should use their supplemental readings as well as books like LMA, NMA, and NBT to

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13 equip themselves in this area better so they can confidently assert their party's rights during negotiations Number Three: In explaining failure to a client, it is important, to be honest about what went wrong in negotiations and take responsibility for any mistakes that may have been made. Additionally, it is important to explain why a positive outcome was not achieved, such as due to a lack of communication or unwillingness of the other party to agree on certain conditions. You can build trust and strengthen your relationships by being accountable and transparent with clients about failed negotiation attempts. Additionally, it is important to reassure your clients that you will continue working hard to find them a better deal in the future and provide guidance on what they can do to improve their chances of success (Deborah & Peggy, 1999). By providing this information, the developer can clearly explain why a sale or purchase agreement might not have been successful while providing useful advice on how to proceed in the future. This is essential to maintaining a strong and trusting relationship with clients, as well as helping them make better decisions when it comes to negotiating deals. Further, it's important to remember that negotiations do not always succeed and can be fraught with complexities and difficulty. Business law students should use their supplemental readings and books like LMA, NMA, and NBT to better equip themselves with the tools needed for successful negotiations so they can confidently assert their party's rights during negotiations. Ultimately, this will help protect their client’s interests and ensure that any agreement between the parties benefits both sides. Ultimately, while negotiations may not always result in a successful outcome, attorneys should strive to be as honest and transparent with their clients as possible to build trust and

14 positive relationships. By taking responsibility for any mistakes that were made, explaining why the transaction failed, offering advice on how to approach future negotiations differently, and reassuring clients that their best interests are at the forefront of all attempts at negotiation, attorneys can help ensure a satisfactory outcome for their client's benefit. In this scenario, it would be unethical for you not to mention that a university student produced the financial report as opposed to UT itself. By withholding this information from the counterparty, you could be accused of misrepresentation, which could lead to serious legal consequences. Furthermore, suppose you are unsure about whether or not you should provide certain information during negotiations and meetings. In that case, it is best to consult with your client beforehand to ensure that all parties know the full scope of the information. This will help ensure that your client is not taken advantage of and can make the best negotiating decisions. In conclusion, understanding the importance of listening, drafting, and negotiating is crucial for any business law student. The supplemental readings and resources provided in this course can help provide students with the knowledge needed to be successful in these areas. Additionally, it is important to remember that negotiations do not always succeed; however, one should strive to be honest and transparent with their clients to ensure that the best deal is reached (Deborah & Peggy, 1999). By taking responsibility for any mistakes, explaining why a transaction may have failed, and offering advice on how to proceed differently, attorneys can help protect their client's interests and help them make better decisions when negotiating deals. Section Four: What is success in a negotiation? How do you explain the failure to a client? Success in a negotiation can be defined as reaching an outcome that satisfies all parties' interests (Deborah & Peggy, 1999). This outcome should be mutually beneficial and fair, allowing both sides to feel satisfied with the result. When determining success within

15 negotiations, one should consider factors such as the quality of communication between all parties, the level of trust established during the process, the power dynamics involved, and the ability to compromise (Deborah & Peggy, 1999). I would define success in a negotiation as the achievement of one's goals. In the KJH/Malundi simulation, my client's goal was to secure a minimum purchase price of $320 per share from the buyer. To determine whether or not I reached this goal, I would need to know the minimum purchase price before we begin negotiations. This information was not available to me during the simulation, but it is possible that if it had been, we would have been able to achieve our goal. For my client to be happy with the outcome of our negotiation, they must feel that they were treated fairly and that their interests were represented throughout the process. Because I did not have access to any information about Malundi's actual intentions or needs, it was difficult for me to make an informed decision about their real needs; therefore, it may have been difficult for them to feel satisfied with our results. When I think of success in a negotiation, I think of it as the ability to reach a mutual understanding. I want both parties to feel like they've gotten what they needed from the deal and were treated fairly. For example, success in our simulation was defined as reaching an agreement with KJH on how much Malundi would pay for the sheep. This could be achieved through a variety of means: either by agreeing on a price and then finding common ground on how to negotiate it down or by agreeing on a price and then finding common ground on how much KJH would pay (or vice versa) (Bruce & Roger, 1982). In our case with KJH/Malundi, we succeeded because we came together as equals—we didn't push one another into an agreement that wasn't right for either party. We took time to understand each other's needs and wants and worked together to create an arrangement that would make everyone happy.

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16 In reference to the KJH/Malundi simulation, success could be defined as reaching an outcome that satisfies both parties' interests. In this case, both sides should be able to conclude where their respective goals are met without compromising the other party’s interests. The parties should also be able to communicate effectively to ensure a positive outcome while building trust between them (Bruce & Roger, 1982). Furthermore, the negotiation's power dynamics should be considered and respected by both sides for a successful conclusion. Lastly, both parties should be able to compromise to reach a resolution that works for both sides. Part 2. If I represented Malundi in the KJH/Malundi simulation and we were unable to reach an agreement, my opening statement to the Malundi National Union would be as follows: “Honorable members of the Malundi National Union, unfortunately, after lengthy negotiations between both parties, it has become clear that we have been unable to reach an agreement on terms that satisfy the needs and interests of both parties. During the process, numerous issues posed obstacles throughout the negotiation (Bruce & Roger, 1982). One of these issues was the price of casava, which proved to be a major sticking point for both parties. Despite our best efforts, we could not find a solution that worked for all involved. Ultimately, this inability to bridge our differences has resulted in us being unable to agree. I understand how disappointing this news is, but we must now look to the future and consider other options available. Our team has already begun looking into other potential partners and will report back to you as soon as we have identified a possible alternative. We thank you for your patience and understanding during this difficult process, and we remain committed to finding an agreement that works best for everyone." As such, I apologize on behalf of Malundi for not being able to secure better terms or reach an agreement with KJH and ask that

17 you forgive us in light of this unfortunate outcome. We understand how important it is for both sides to reach an agreement that works for everyone, and we will work hard to avoid this situation in the future. Thank you for your understanding and patience throughout the process.” If I represented KJH, my opening statement to the CEO would be as follows: “Honorable CEO of KJH, unfortunately, after lengthy negotiations between both parties, it has become clear that we have been unable to reach an agreement on terms that satisfy the needs and interests of both parties. During the process, numerous issues posed obstacles throughout the negotiation. One of these issues was how much casava KJH could buy from Malundi, which was a major sticking point for both parties. Generally, KJH wanted to buy more than Malundi was willing to sell. Despite our best efforts, we could not find a solution that worked for all involved. Ultimately, this inability to bridge our differences has resulted in us being unable to agree. As such, I apologize on behalf of KJH for not reaching an agreement with Malundi and ask that you forgive us in light of this unfortunate outcome. We understand how important it is for both sides to reach an agreement that works for everyone, and we will work hard to avoid this situation in the future. Besides, our team has already begun looking into other potential partners and will report back to you as soon as we have identified a possible alternative. Thank you for your understanding and patience throughout the process.” Although we were unfortunately unable to reach an agreement, it was clear from the negotiation process that both sides had sincere desires to do so, and considerable effort was put forth to bridge our differences. We hope to work together on different terms that will be more satisfactory for both parties, and thank you again for your patience and understanding during this process. Notably, we will also use the knowledge and skills acquired in this negotiation process to ensure that

18 future negotiations are more successful. The supplemental readings of Listening as a Martial Arts (LMA), Negotiation as a Martial Art (NMA), and Negotiating Business Transactions (NBT) were all very helpful in this process. They provided us with much-needed knowledge and strategies that were crucial in navigating the complexity of the negotiation. Additionally, they will be very helpful for future negotiations that we will face. Thank you for the opportunity to learn from the experience, and we look forward to our next potential venture with other partners. We hope to work together in the future to reach better terms that suit both parties. Thank you for your patience and understanding throughout this process. We remain committed to finding an agreement that works best for everyone. Additionally, our team has already begun looking into other potential partners and will report back to you as soon as we have identified a possible alternative.

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19 References Andrew, D. (2005). Human Relations Interpersonal Job-Oriented Skills 8th Edition. Prentice Hall . Bruce, Patton. & Roger, Fisher. (1982). The Elements of Negotiation. Harvard Business Review. Deborah, M. Kolb & Peggy, Holman. (1999). The Change Handbook: Group Methods for Shaping the Future. Berrett-Koehler Publishers. Jones, D. (2015). Martial arts training in Japan: A guide for westerners . Tuttle Publishing. James, W. Wise, & Albert, Z. Carr. (2006). Working with Difficult People: A Practical Guide to Negotiating Successfully in Challenging Situations. John Wiley & Sons, Inc.,. Roger, Fisher & William, Ury. (2011). Getting to Yes: Negotiating Agreement Without Giving In, 2nd Edition. Penguin Random House.

Business Lawyering Listening, Drafting, and Negotiating final paper

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