DLS students, Nicholas D’Amore and Daniel Ashby, take on ELSA.
“Your job is to help your client; you have to put aside your own personal views.” We didn’t really understand the entire nature of this statement until we had to represent clients whose situations we struggled to empathise. In representing your client, it is imperative that your own personal bias does not affect the outcome of the negotiation. In fact, the stronger you believe in your client’s case, the higher your prospect of success.
Between February 1st and February 8th 2017 Nicholas D’Amore and Daniel Ashby participated in the European Law Students’ Association (ELSA) Oporto International legal competition. The competition consisted of six simulations from various areas of law such as: Labour, Commercial, Tax, Sport, Public Procurement and Human Rights. Each group competed in three of the six simulations and were assessed by a panel of industry professionals against various criteria including: teamwork, collaboration, creativity and the cohesion of their legal arguments. Our team, affectionately referred to as ‘The Australians’ participated in the Labour, Tax and Public Procurement simulations.
The Labour simulation concerned a company implementing new auditing procedures without notice which affected our client and would have pushed the project they were working on behind by 6 months. Our client believed their job would be in jeopardy if this occurred. After almost an hour of negotiation, we managed to secure our client’s job, which was conditional upon completion of professional development training.
The Tax simulation focussed on various defamatory imputations made by a company officer regarding the tax liability of a rival firm. Our clients ‘Deskzone’ released an article which contained alleged defamatory material regarding ‘Arcadia’s’ tax minimisation scheme. Arcadia was seeking: damages of $150,000; a clear retraction and apology; legal costs; and contact details of the audience of which were privy to the publication (including client lists).
Our clients’ interests were to save face, keep out of court and to pay as little in damages as possible. The outcome of this simulation saw the undertaking of a joint venture between Deskzone and Arcadia to promote future relations, a combined undertaking to support a government program which would educate people about the tax system, a retraction and clarification asserting that Arcadia is not cheating the system and no payment of damages or legal costs. We found this simulation the most culturally challenging as we were faced with opposition from an entirely different system of social and cultural norms, as well as different systems of law. Although this was one of the more difficult simulations, it was also the most constructive. It cemented the obvious teachings such as the use of body language and time management.
In our final simulation, we were able to finesse our skills gained in the previous simulations. Our client in this simulation was the United States Environment Department (USED) which had a contract with the Energy Production and Distribution company (EDP) concerning the manufacture, shipping and installation of 50 windmills by certain dates. Due to a technical incompatibility, certain parts of the windmills could not be delivered and thus amounted to a breach of contract. To fix this incompatibility it would cost €60 million plus push the project back another 2 years. Our client had multiple interests which included: a limited budget, having the project completed on time and finding employment for the miners who were made redundant as a result of a move to renewable energy. We were successful in this negotiation and managed to obtain the project on time, have our retrenched workers reemployed, managed to loan €60 million to EDP to complete the project (plus interest) and were able to obtain a discount on future projects.
Our last article posed the question about how we would reconcile different cultural approaches to negotiation. While there were differences between each participant’s dialect, each team held the same core interests – that being to reach an amicable agreement between both parties. As such, it was important to be confident and assertive, however be understanding of the other side’s position.
We are very grateful for the opportunity to participate in the 2017 ELSA Porto International Legal Competition. In all we were able to gain a lot from this experience, both personally and professionally. Not only were we able to hone our legal negotiation skills but we were also able to experience different cultures and meet people from all over the world.
Written by Nicholas D’Amore and Daniel Ashby.