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Effective and Ethical Negotiation: Tips from the Trenches EFFECTIVE AND ETHICAL NEGOTIATION: TIPS FROM THE TRENCHES JOHN P. KINCADE, Dallas Winstead PC AMY SANDERS, Austin 3M Company State Bar of Texas 18TH ANNUAL ADVANCED IN-HOUSE COUNSEL August 8-9, 2019 San Antonio CHAPTER 17 John P. Kincade Winstead PC Co-Chair Securities Litigation and Enforcement Practice Group Business Litigation Dallas, Texas [email protected] 214-745-5400 JOHN KINCADE represents clients in federal, state, and SRO securities and corporate litigation, arbitration, and investigations; SEC, state securities, and SRO regulatory enforcement matters and investigations; and financial services, commercial, and business litigation and arbitration. His relevant experience includes representing individual and entity clients in receiverships, insider trading, and financial reporting and controls matters; representing publicly traded, privately held, and other equity and debt market participants and their officers and directors in the full range of federal and state court securities fraud class action and individual investor litigation and arbitration, including SRO arbitration before FINRA; representing clients in corporate and D&O matters including corporate governance, M&A, going private, and indemnification litigation/arbitration; actively presenting lenders, borrowers, and other financial services clients in pre-litigation strategies, workouts, co-lender issues and facility syndications, and collection litigation and defense, including extraordinary judicial remedies; and representing clients in a variety of business and commercial disputes. Mr. Kincade often speaks and writes on topics involving securities litigation and enforcement, attorney-client-privilege (primarily for in-house counsel), negotiation, ethics, and dispute avoidance and prevention initiatives. The latter subject is part of Winstead’s "partnering" initiative on a no-fee basis with in-house counsel to support their risk and dispute avoidance initiatives. Mr. Kincade also is a frequent contributor to Winstead’s securities litigation and enforcement blog: https://www.winsteadsecuritiesdefense.com/ He has practiced his entire career with Winstead PC other than serving a one-year term as a Briefing Attorney to the Texas Supreme Court, the Honorable Franklin S. Spears (deceased). He graduated with distinction from St. Mary’s University School of Law and earned a B.A. degree from the University of Texas at Austin. He is engaged professionally and civically. He formerly served as Chair of the Securities Section of the Dallas Bar Association; is a member of the Texas Bar Foundation; and is a former longtime board member of the Dallas Zoo, where he served on the Board’s executive committee including as chair of the compensation and governance committees. Amy M. Sanders Associate General Counsel 3M Transportation & Electronics Business Group Austin, Texas AMY SANDERS is the Associate General Counsel of the Transportation & Electronics Business Group at 3M Company, a 10 billion dollar business. During her 16-year tenure at 3M, Ms. Sanders has led numerous negotiations across 3M’s businesses around the globe and throughout the supply chain. She has developed deep expertise in the area of international transactions, focusing on the fast moving and dynamic electronics industry. In addition to transactional work, Ms. Sanders counsels on product liability, competition law, disputes and litigation matters, as well as general compliance matters. Ms. Sanders also serves as the co-chair of 3M’s Transaction Practice Group and has led several of 3M’s professional development courses. Over the course of her career with 3M, she has been primary counsel to several different 3M business. Prior to joining 3M in 2002, Ms. Sanders was a corporate and securities associate at Vinson & Elkins and Gray Cary (now DLA Piper). Ms. Sanders graduated with highest honors in 1995 from the University of Texas with a B.B.A in Finance. She also earned her JD degree from the University of Texas in 1998, graduating with Honors and Order of the Coif. Ms. Sanders serves on the board of Saint Louise House, an organization dedicated to providing housing and wrap around services to women-led families. She has also been actively involved with 3M’s support of United Way of Greater Austin, including leading site-wide campaign initiatives. Ms. Sanders and her husband, Mark, have two amazing children: Sydney (18) and Jackson (15). ________________________________________________________________________________________________________Effective and Ethical Negotiation: Tips from the Trenches Chapter 17 TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................................................. 1 II. THE PROCESS OF NEGOTIATION – WHAT IS IT REALLY? ................................................................... 1 III. UNDERSTANDING TYPES OF NEGOTIATION .......................................................................................... 1 A. Competitive or Distributive Negotiations ............................................................................................. 1 B. Cooperative or Integrative Negotiation ................................................................................................. 2 IV. THE STAGES OF A NEGOTIATION.............................................................................................................. 2 A. Preparing for the Negotiation ................................................................................................................ 2 1. Understand the Business Goal—What does your client want. ................................................ 3 2. Understand the Rules of the Forum or How the Negotiation Will Occur ................................ 3 3. Who is the Counterparty? ........................................................................................................ 4 4. Your Client’s BATNA and WATNA ...................................................................................... 4 B. Developing a Strategy ........................................................................................................................... 4 C. Set the Tone .......................................................................................................................................... 4 D. Information Gathering and Sharing ...................................................................................................... 5 E. The Give and Take of Bargaining ......................................................................................................... 5 1. Avoiding Cognitive Biases ...................................................................................................... 5 2. Bargaining Tactics, Ploys, and More ....................................................................................... 6 3. Additional Bargaining “Quick Hits” ........................................................................................ 7 V. ETHICAL OBLIGATIONS IN NEGOTIATIONS ........................................................................................... 7 A. Truthfulness in Statements to others – Texas Disciplinary Rule of Professional Conduct 4.01 ........... 7 1. Materiality ................................................................................................................................ 8 2. Generally Accepted Negotiation Conventions Not Considered to be Material or Statements of Fact .................................................................................................................... 8 3. Application to Mediation and Mediators ................................................................................. 9 4. Transaction Negotiations, Exchange of Contract and Settlements Drafts, and “Mistakes”.............................................................................................................................. 10 B. Communications with One Known to be Represented by Counsel – Texas Disciplinary Rule of Professional Conduct 4.02 .................................................................................................................. 11 C. Organization as the Client and Objectives of Representation – Texas Disciplinary Rule of Professional Conduct 1.12 and 1.02 .................................................................................................... 11 D. Misconduct – Texas Disciplinary Rule of Professional Conduct 8.04 ............................................... 12 E. Concluding Thoughts on Negotiation Ethics ...................................................................................... 12 i ________________________________________________________________________________________________________Effective and Ethical Negotiation: Tips from the Trenches Chapter 17 TABLE OF AUTHORITIES Page(s) Cases Banco Popular N. Am. v. Gandi, 876 A.2d 253 (N.J. 2003) ....................................................................................................................................... 13 Blankenship v. Brown, 399 S.W.3d 303 (Tex. App.‒Dallas 2013, pet. denied) .......................................................................................... 16 Brown v. County of Genesse, 872 F.2d 169 (6th Cir. 1989) .................................................................................................................................. 13 Davin LLC v. Daham, 746 A.2d 1034 (N.J. Super. App. Div. 2000) ........................................................................................................
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