1 / 10

Name of presenter: Title of Presentation :

SASLAW SEMINAR 30 MARCH 2012. Name of presenter: Title of Presentation :. Professor Alan Rycroft. Negotiating Settlement: What are the obstacles?. 1. Principled objection to settling (‘Why should I pay 3 month’s salary to a thief?’ ).

evan-ayers
Download Presentation

Name of presenter: Title of Presentation :

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. SASLAW SEMINAR 30 MARCH 2012 Name of presenter: Title of Presentation: Professor Alan Rycroft Negotiating Settlement: What are the obstacles?

  2. 1. Principled objection to settling(‘Why should I pay 3 month’s salary to a thief?’) Shift the talk away from principles towards the practicalities: • lack of certainty that arbitration will uphold the principle; • arbitration may take long and may involve legal costs; • the possibility of review. Focus on interests. A Rycroft 30 March 2012

  3. 2. Need for ‘a day in court’(‘I want the CCMA to find that I was treated unfairly’) • Explain the impact of an adversarial process in further destroying relationships. • Explain that the decision is evidence-based. • Explain that the test is ‘on a balance of probabilities’. Author and Date

  4. 3. Institutional / structural obstacles(‘I have no mandate to settle’) • Explore who has the power to change the mandate. • Explain s 142A allows an agreement to be made an arbitration award. • Are there external factors preventing settlement? Author and Date

  5. 4. Procedural anxiety(‘Settlement will upset our consistency on the issue’) • Explain that while consistency is required, mitigating factors are also required. • Explore ways of anticipating future allegations of inconsistency. Author and Date

  6. 5. Opportunistic / Wrong assumptions(“I was told the CCMA would give me 12 months compensation”) • Lower expectations by advising that the average CCMA compensation is 4 months. • Warn about a s 138(10) costs order Author and Date

  7. 6. Ethical and value-related issues(“We will not tolerate racism under any circumstances.”) • Try and find an over-arching value • Agree to disagree on the ethics / values and concentrate on a collaborative solution Author and Date

  8. 7. Representational dynamics(“As your lawyer / union rep, I urge you not to settle.”) • Create doubt in the mind of the attorney / union rep about the facts of the case / strength of evidence. • Find ways for the representative to claim a ‘victory’. • What is the role of the media? Author and Date

  9. 8. The failure to assess one’s BATNA(I haven’t thought what my Best Alternative to a Negotiated Agreement is) • Explore what happens if there is no negotiated agreement. • Explore if there are ways to improve the BATNA. Author and Date

  10. 9. Psychological / cognitive factors(‘When the client says “It stands to reason…” what kind of thinker is she?) • Understand how your client thinks (is she a synthesist, idealist, pragmatist, analyst or realist?) • Synthesist: seeks conflict & synthesis • Idealist: seeks ideal solutions • Pragmatist: seeks shortest route to payoff • Analyst: seeks “one best way” • Realist: seeks solutions that meet current needs Author and Date

More Related