Negotiation skills in a clinical context: the virtual transaction

Peter Scott, Glasgow Caledonian University

Clinical legal skills are central to legal education, and the most obvious mechanism for the teaching of experience must be the virtual transaction. The following paper describes a group work case study in land law on a Diploma in Conveyancing, considering the salutary lessons learned by staff and student alike.

The increasing need to build into law teaching a significant element of ‘workplace relevant’ skills and the emphasis on the development of personal transferable skills within learning outcomes requires that law teachers today give serious thought to the mechanisms whereby those twin goals can be achieved.

The purpose of this paper is not to examine the literature on the subject, extensive as that literature is, but rather to consider the practicalities of a specific assessment mechanism, in the hope that experience, both bitter and otherwise, can become a common asset. Within that context, a recent project at Glasgow Caledonian University may serve to focus attention on the practicalities of tailoring the teaching of clinical legal skills to the needs and abilities of the student body.

The student cohort

For a proper understanding of the nature of the project it is essential that the ‘corporate personality’ of the student cohort be identified.

The cohort concerned in the project comprised second year students reading for a two year Diploma in Conveyancing and Executry Practice. By and large, applicants to the course would be unlikely to meet the academic criteria for admission to a nominate degree programme. In most cases the Diploma is perceived as a stepping stone to further academic achievement, in that a few students hope to go on to qualify as solicitors, most would hope to transfer direct to the third year of a law related degree programme and only a small minority see the Diploma as being the pinnacle of academic achievement.

An analysis of the admissions data reveals that around 15% of the intake comprises mature students who do not meet the standard academic criteria, but have relevant experiential learning. The balance of the admitted student body on the Diploma proves to be school leavers who do not meet the criteria for admission to a degree programme, but have a pointage which suggests potential in that regard. Of the school leavers entering the diploma, some may not have realised their full potential within the school system for a variety of social, cultural and domestic reasons, while others, of course, are not of a natural academic bent but are hoping that drive and ambition will, in the event, carry the day. The university is committed to a policy of wider access and this does mean that teaching and learning strategy is of particular importance.

The group dynamic

The ‘old saw’ that most students will pass or fail regardless of the quality of teaching and that only a tiny minority will be influenced by that quality is a dangerous philosophy where wider access is taken seriously.

The best information available suggests that about one third of the total cohort can realistically expect a significant level of professional achievement, but in most cases the career progression is unlikely to proceed beyond a modest level of achievement as legal executives or paralegals.

Against that background, and for the purposes of the project, a cohort of 16 students was divided into four groups. With a view to a more meaningful interpretation of the results, the group dynamics involved seem relevant. The alpha group consisted of the four most able students. They represented the students most likely to proceed to further academic study. They had naturally gravitated together and were clearly well motivated to succeed. In the main, the achievement of good grades was essential for the academic progression they had in mind. A natural leader emerged in the person of a mature student with relevant experiential learning, who was also the official class representative.

The beta group consisted of two mature students who were clearly of degree calibre, had some relevant experiential learning and were coming to further education comparatively late in life. The other two students whose academic progression thus far had been good to average, and who gave every indication of quiet diligence, were also serious contenders for progression to degree level. This group also had gravitated together naturally. The two mature students always worked well as a team and the joint leadership of the group centred on them.

The gamma group was made up of four school leavers. Historically, their academic achievement at both school and university was average, but they were lively students who could contribute well to seminar discussions and clearly had degree ambitions. No obvious leader emerged. There was a feeling that their group had formed more by default, the others having gravitated together naturally, but they certainly had shared interests and appeared to be functioning as a team.

The delta group consisted of one dominant mature student and three school leavers of average ability, who were inclined to follow the lead of their more flamboyant older colleague. The mature student had little by way of formal qualifications for entry but had been active in the local community and was largely self taught before deciding to enter a formal educational environment.

The case study

The scenario was based on a real life case study and used materials from an actual transaction. In essence, ‘RAILTRAK’ was disposing of surplus land and proposed to dispose of the land at public auction (in Scots Law, a ‘public roup’) and three of the groups were given ‘instructions’ to negotiate for the purchase of the land and for certain associated works involving RAILTRAK property. These works were necessary to utilise fully the development potential of the site.

Each set of instructions was different but, unknown to the students, the budget for each ‘client’ was identical. The valuation reports brought out slightly different figures, reflecting the reality that land valuation is not a precise science, and the nature of the works was different but, in essence, three clients with identical budgets were chasing the same property. The fourth group was to act for the sellers. Their client simply wanted the best financial return on the total deal. The policy was to dispose of the land by auction but the price for waiver of title conditions could be a matter for separate negotiation.

What was intended, of course, was that each group would negotiate a separate figure for waiver of conditions and then attend the auction on behalf of potential purchasers. Since the topline figure for each group was identical, the final result should have relied on ‘bidding skills’.

The three potential purchasers also had the option of making a binding offer (competent in Scotland) for a total figure which would then form the basis for a reserve price. The existence of a reserve price must be disclosed at auction, but not, of course, the actual amount.

Negotiations were to be conducted by e-mail. The second stage was then to be preparation of a minute of waiver of conditions, assuming successful purchase, using a legal software application (HotDocs). In this way the assessment would pull together the substantive law of auctions, negotiation skills, legal draftsmanship and the application of legal IT (using an industry standard).

Negotiation skills

By and large this was a disappointing aspect of the project. In each case the three ‘agents’ submitted an offer to purchase at an all inclusive price to include waiver of conditions. In each case, the seller rejected the offer and pointed out that the policy decision to proceed to auction had been made, as was in line with their ‘instructions’ from the seller.

At this stage, each should have tried to negotiate a figure for the waiver or, alternatively, try to negotiate an upset price including waiver. Only the alpha group made a serious attempt so to do. In the event, there were internal problems with the e-mail system, which went down on several occasions, resulting in delays in transmission of messages. Two of the groups panicked and, technically, arrived at the auction without a firm deal on the waiver costings. They appeared to take the view that the system had gone down and that, since this was not their fault, they could not be blamed for this. Of course, in a live scenario, the client would not be impressed by this approach, but the significance of role play seemed to have been lost. If they had sought the support of the lecturing staff, they could have been counselled on a suitable tactic, but two of the groups allowed a temporary technical set back to take over their thinking.

Realising that time was running out, the alpha group made an irrevocable offer for purchase and waiver at their topline figure. Their view was that, by keeping within budget, they were discharging their duties to the client, who might be paying ‘top dollar’ but would not lose the property by virtue of inaction.

The seller, of course, could only respond to communications received and had boxed themselves in by failing to follow up expressions of interest. Their only available response was to disclose the existence of an upset price at the auction. Yet, seminars on negotiation skills had brought out a range of negotiating tactics which could, and would in practice, have been employed in such circumstances. The seminars had been interactive and had been conducted along lines which had proved successful when taught by the same staff within a law school context.

The bottom line was that only one group reacted in a ‘professional’ way by attempting to bring matters to a head and the others, having decided upon a single ‘best’ course of action, seemed unable to change tactics when problems arose. This is ‘tramline’ thinking, an inability to switch track when the chosen route proves less than satisfactory.

The auction

Unlike the teaching of negotiation skills, which explores the issues in plenary session and involves participative role play, the substantive law of auctions was taught in conventional classroom format of the ‘chalk and talk’ variety. This achieved a satisfactory learning outcome so far as concerned the specific substantive law. All students mastered the law, and good comprehension of legal principle was achieved. In fact, no group failed to apply the correct law.

This would seem to support the anecdotal evidence that students are conservative by nature and are comfortable with the established order. That is not to deny the value of innovative teaching, of course, but merely to note that students, by and large, respond well to the familiar methodologies which are perceived as ‘home ground’.

At auction, the negotiating weaknesses became apparent, however. The alpha group could play no part in the bidding until it reached the reserve price (which was, in any event, the client’s best offer). Indeed, although not ‘white bonneting’ (as seller bids are referred to under Scots Law), meaningless bids are frowned upon in such circumstances.

The other groups could only bid to the land valuation figures. Worryingly, these groups seemed oblivious to the ‘reality’ that they did not actually have agreement on the waiver costs, and could have been held to ransom by the sellers if their bids had been successful. Even the sellers seemed not to have taken this on board, despite the fact that the law of contract (which they had all already passed) is quite specific as to the need for consensus in idem.

Again, only the alpha group seemed to appreciate that role play in a virtual transaction requires more than lip service to legal principle. In the event, the reserve price was successful, as it was bound to be.

Draftsmanship

Here the students were given the text of proposed new conditions. The intention was that they should attempt to draft a form of wording which would give effect to the intentions of the parties. This is not a substantive law issue, but requires the ability to write in clear unambiguous English. Most students committed the cardinal sin of forgetting the substantive law of conveyancing. This compartmentalisation of the law is not uncommon, but since they had all newly completed the module on practical conveyancing, they might have been expected to avoid basic errors.

In a Land Register Title the land certificate replaces the prescriptive progress of title and there is, therefore, no importation of description or burdens from other writs. All of the students forgot this, and imported prior writs to incorporate in the title. Students adopted two devices for the actual title conditions:

They incorporated new conditions which were mere re-typings of the details provided. This was not an exercise in keyboard skills, but rather an exercise in replacing informal communications with formalised or stylised English. The point is that there must be no ambiguity and, if nothing else, the exercise would have made the individual come to terms with his/her own shortcomings.

They drafted missive conditions (reasonably well in some cases), but tried to rest on the device of keeping the missives alive. This would not work in practice, as most missive conditions subsist for only two years in terms of the standard styles. In any event, the disposition is intended to give effect to the missives and the structure of the English is entirely different, being of necessity much tighter and more structured.

Another area of concern was that the class as a whole complained that they had been given no style to apply. They had to be reminded that the styles to be employed had been issued in the conveyancing module. This, also, suggests compartmentalisation to an extreme degree. Had this been set as a pure conveyancing project, the class materials would, on past student performance, have been utilised without difficulty, albeit to a variable standard reflecting individual student ability.

Information technology

Here too, problems were encountered. HotDocs is an industry standard, and its use is incorporated into discrete elements of the programme of study. For the purposes of this exercise the students were expected to use a conveyancing application associated with HotDocs. Although that application had not been used in the teaching of practical conveyancing, the hands-on skills involved in the use of HotDocs itself should not have been problematic.

For the record, the conveyancing application was not designed as a teaching pack, but rather assumes existing basic conveyancing skills and is primarily a specific and user-friendly document assembly application. For that reason, the conveyancing module is taught using conventional methodologies which can then be applied in the workplace, utilising whatever IT applications are the particular office norm. The point is that the software was merely an adaptation of a software package with which the students were reasonably familiar. The intention was, naturally, that this would give them hands-on experience of a modern IT application of a traditional skill.

The students reported that the software had ‘crashed’ and permission was given to revert to the ‘old fashioned way’.

In the event, subsequent investigations could find no evidence of the system crashing, and the only conclusion which could be drawn was that user error was involved. One possible inference to be drawn is that ‘computer error’ is a fairly universal scapegoat. Since every system comprises three elements, hardware, software and ‘liveware’, and most systems rely on proven hardware and software, it is a fact of commercial life that user error is a more probable cause of system failure than defective programming. In the ‘real world’ defective programming is more likely to be an issue where a system rewrite is being live tested. ‘Liveware’, the human component is, in reality, the likely culprit in most cases. Perhaps users are too are quick to blame the system without realising that they may in fact be the defective system component. Trouble shooting requires an analysis of the user’s role, and this may need to be reinforced in the teaching of IT skills.

Debriefing

This was felt to be the single most effective part of the process as a whole.

Initially, the alpha group were satisfied with their ‘win’, but came to terms in debriefing with the reality that, had they played their cards differently, they might have capitalised on the unforced errors of the other players and been able to purchase well within budget. In their determination to be successful in purchase they had lost sight of the other objective – to negotiate the best deal. A valuable lesson was learned, albeit there was still a tendency towards complacency, given that, still and all, they had ‘won’.

The beta group had lacked the aggression of the alpha group and had become unfocused when, as they saw it, there were problems over which they had no control. However, they were quick to identify what they should have done to bring matters to a head and there was much rueful head shaking. Perhaps the key feature here was that ‘winning’ was less important than ‘learning’.

The gamma group, which had drawn the straw as ‘sellers’, had failed to grasp the two-way nature of negotiation and had seen their role as reactive. To use a chess analogy, they had failed to appreciate that White may start off as the defensive player, but requires to develop an attacking strategy and turn the tables on Black if the game is not to end in an unsatisfactory draw.

The delta group had, from the outset, regarded the exercise as two separate negotiations. The first step was to resolve the waiver price and then the second would be to agree the land price. Here, they came to realise that flexibility is essential. It was difficult, however, to shake their belief that they had been disadvantaged in some way by a low property valuation as compared with the others and by higher than average development costs. There remained a reluctance to accept that they were, in simple truth, on a level playing field.

What was interesting, overall, was that the group dynamic in each case affected the outcome. The question which arises is whether or not we properly take this into account in seeking to assess personal transferable skills. Of no less importance is the question as to whether or not we take into account the natural predisposition of students to compartmentalise their learning. A third question which then arises is whether or not we can persuade students to view the assessment itself as an integral part of the learning process.

The assessment mechanism

The actual marking was in two parts, each being marked as a group project. The weighting for each member was fairly transparent from the instruments of assessment which analysed the role of each member. The presumption was that each member should receive an identical mark unless the report threw up anomalies but, in the event, the division of labour seemed fairly evenly distributed.

Negotiation skills were assessed on the basis of a student report, recording the history of the negotiations and the group decisions as reached. By allowing self selection, the groups tended to be of roughly equivalent ability, with the possible exception of the delta group where arguably the contribution of the dominant leader offered no advantage to the more passive members of the group. In comparing the grades received in other, more conventionally assessed, modules there were, frankly, no significant anomalies.

The second element was assessed on the basis of a group submission of a draft document of waiver. Here, of course, a particularly literate student could have advantaged his/her less able colleagues who would profit from the superior skills of the better draftsman. It was, however, a matter of policy that students could agree the breakdown of marks as amongst themselves, given that the contribution of each might be less transparent than in the case of the written self analysis. No group sought to do this and, again, a scrutiny of grades awarded in other modules (here specifically the modules dealing with practical draftsmanship) revealed that self selection of groups had resulted in broadly similar levels of ability.

Only the beta group were unhappy with the final marks given to the group, but moderation of the mark resulted in an amicable consensus.

Marking, in fact, proved not to be a problem, and it is tempting to suggest that this may in no small part be due to a decision that students should allocate themselves to groups rather being allocated to groups by staff.

Conclusions

These may be stated briefly:

• the experiment was worthwhile and will be carried forward for ensuing years
• compartmentalisation proved to be more of a feature than had been anticipated
• the self-selection of groups worked well and resulted in groups of roughly equivalent ability working together as cohesively as could be expected
• greater thought will have to be given to identifying strategies for coping with technical problems
• ‘tramline thinking’ must be flagged up as a real danger and thought given as to how best to deliver this message
• students must be encouraged to see that assessment is not an end in itself but rather a significant part of the learning process, an opportunity to learn from mistakes before they are made in a ‘live transaction’
• most importantly of all, if the group dynamic is examined, we find that different lessons are learned by each group and that each lesson can be tailored to the strengths and weaknesses of the group personality

What would we do differently?

Certainly, the relevance of particular modules to future studies needs to be brought out to greater effect. Perhaps, we should identify those elements which will resurface at a later date -although the temptation is then to teach to the assessment rather than teaching to the syllabus. Hopefully, debate will better inform our opinion.

What was most interesting?

Beyond a doubt, the most satisfying aspect was the dawning realisation by students that they ‘ain’t half as clever as they thought they were’.

• the alpha group learned, hopefully, that winning on its own is not enough and that constant improvement is a sine qua non of professional life
• the beta group realised that they have to be more analytical and try for better lateral thinking
• the gamma group found that passivity is a poor recipe for success
• the delta group found that leadership is a two-edged sword. The leader must be prepared to take advice from the led, and the led must not assume that leadership is invincible.

Last Modified: 12 July 2010