1. THE ART OF NEGOTIATION SKILLS FOR LAWYERS
By
Prof Handley Mpoki Mafwenga,
[Ph.D, MSc, LLM, MBA, PGDTM, ADTM, LLB, FCTA(UK)]
Macro-Fiscal Policy, Advocacy & Tax Expert [Gov-URT]
MINISTRY OF ENERGY AND MINERALS (TMAA)
Oil & Gas Contracting and Negotiation Workshop Organized by the
Tumaini University Makumira-Dar-es-salaam College Held at Tamar
Hotel in Dar-Es-Salaam on 23rd to 26th March, 2015

2. MEANING AND SOURCES OF NEGOTIATION
What is Negotiations?
From the Latin expression, "negotiatus", "to
carry on business"
It is a dialogue intended to resolve disputes,
to produce an agreement upon courses of
action, to bargain for individual or collective
advantage, or to craft outcomes to satisfy
various interests.

3. MEANING AND SOURCES OF NEGOTIATION
Alan Fowler (1990) describes Negotiation as
“ ….a process of interaction by which two or more parties
who consider they need to be jointly involved in an
outcome, but who initially have different objectives,
seek by the use of argument and persuasion to resolve
their differences in order to achieve a mutually
acceptable solution”
“An interactive communication process that can be used to
get something from someone else when they are trying
to do the same”

4. MEANING AND SOURCES OF NEGOTIATION

5. 5 BASIC BARGAINING STYLES [Limited Possible Outcomes
of Negotiation]

6. COMPETITIVE NEGOTIATORS
• Competitive negotiators are ambitious, arrogant, clever,
tough, dominant, aggressive and attacking! They aim to
get the best for their client, at the same time, also
include a reward for themselves – either in a monetary
gain or in the satisfaction of outdoing an opponent.
• They often make high opening demands; use threats,
they are willing to stretch the facts to suit their case,
stick to their positions and are often reluctant to release
information about their case.
• Their main aim is to undermine the opposing party so
they lose confidence in themselves, therefore, reduces
the overall expectations of the case.

7. COOPERATIVE NEGOTIATORS
• Cooperative negotiators tend to be perceived as
courteous, personable, friendly, tactful, sincere, wise,
careful and facilitating
• Want to achieve the best or their client, but they also
feel constrained by a standard of fairness and ethical
dealing.
• They are seen as fair and reasonable and if logic tells
them to do so, they will move from their established
position; hence, they avoid threats, they can accurately
assess the value of the case
• Seek to create a ‘trusting environment’.
Their major problem is the vulnerability! where they are
battling against a competitive negotiator they will often
continue to be cooperative and ignore the lack of
cooperation.

8. 5 BASIC BARGAINING STYLES [LIMITED POSSIBLE OUTCOMES OF
NEGOTIATION]
Lose/lose [Conflict Avoiders; neither party achieves
their goals;
Lose/win or win/lose [Competitor]; one party
achieves their goals and the other does not
[relationship with your counterpart will be damaged,
perhaps irreparably];
Win/win [Problem Solvers]; the goals of both
parties are met [“Trust is developed, and both
parties will be willing to continue this mutually
beneficial relationship.”]; and
No outcome [Compromisers]; neither party wins or
loses.

10. THE DUAL CONCERNS MODEL
Yielding
(Compromising)
Problem
solving
Inaction Contending
Concern
about
other’s
outcome
s
Concern about own outcomes

11. AVOIDANCE: Don’t negotiate [i.e Non-engagement Strategy]
COMPETITION: I gain, ignore relationship
COLLABORATION: I gain, you gain, enhance relationship
ACCOMMODATION: I let you win, enhance relationship

12. MAIN ELEMENTS IN NEGOTIATION PROCESS
• Skills can be acquired and developed by careful
planning, practice and reflection on the outcomes.
• There are three main elements that need to be drawn
upon in the negotiation process: i) Knowledge ii) Skills;
and iii) Attitudes
KNOWLEDGE: Knowledge of the setting to shape
negotiation, Knowledge of the context of a specific
negotiation to have effective understanding of the
culture, conventions, constraints and opportunities
available to negotiators, Knowledge of the subject
matter; [Knowledge of: a) applicable principles, b)
the context of a particular negotiation, c) the
detailed subject matter involved]

13. SKILLS: Analytical Skills, Creativity, Communication
Skills, Influencing Skills [Skills in: a) analysing
the issues b) personal interaction c)
communicating]
ATTITUDES: Quite often negotiators have personal
needs for recognition or achievement – someone
who will push to the end. Someone who is
confident, determined and demanding. All
negotiations should try to be collaborative as well
as competitive. [Attitudes towards: a) the
negotiating process b) the specifics of each
negotiation c) one’s own role]
MAIN ELEMENTS IN NEGOTIATION PROCESS

14. ROLES OF A LAWYER IN THE NEGOTIATION
EVALUATOR: Provides Third Party’s evaluation of
the situations; provides some perspectives on the
problem; gives a client a reality check as the actual
experience in a particular jurisdiction
ADVISOR: Lawyer counsel his/her client as to the
options during the negotiation process, particularly
in regard to what offers to make and whether to
accept an offer made by the other side

15. NEGOTIATOR: Lawyer is an exclusive communicator
with the other party or its lawyer , and the client does
no more than authorize the lawyer to act . However, a
client may be an active participant in the negotiations,
and the lawyer plays a role as co-negotiator or
backseat advisor ; to decide the negotiator depends on
the expertise of lawyer and communication skills of
the client
DRAFTER: Once an agreement is reached, it usually
must be reduced to writing . Even in the agreement
that is reached orally as the saying goes “the devil is in
the details” the agreement must be in the precision
language.
ROLES OF A LAWYER IN THE NEGOTIATION

16. BARRIERS TO EFFECTIVE LISTENING
Trying to be helpful. This may seem to be beneficial
but can interfere with the listening as the listener
may appear to trying to solve what they think is
the problem rather than listening to what the
speaker is actually saying.
Treating the discussion as a competition.
Challenging every point the speaker makes even
if you inwardly agree.
Trying to influence or impress. A person who has
an agenda other than to simply understand what
the speaker is thinking or feeling will not be able
to pay complete attention when listening.

17. Knowing the answer. Thinking you already know
what the speaker wants to say and impatiently
cutting them off or trying to complete their
sentence.
Reacting to red flag words. Words can provoke a
reaction in the listener that wasn’t necessarily
what the speaker intended. When that happens
the listener won’t be able to hear or pay full
attention to what the speaker is saying.
BARRIERS TO EFFECTIVE LISTENING

18. www.mem.go.tz
THANK YOU
CONTACTS: mafwenga2000@yahoo.com ; hmafwenga@tmaa.go.tz
+255758888884; +255754555666; +255766125125;+255767616868: +255713616868:
+255768722222: +255768622222