REPRESENTATION: Stryver, Barsad & Co Solicitors
LIST OF ISSUES TO BE COVERED (in sequential order) i. e varying from the most crucial but complex issues, to less significant and minor issues;
2. brief summary of the key facts and key issues to be covered
3. First issue to be negotiated: Refund of deposit, and compensation for all the losses incurred/ moving on with the contract on original terms including providing Mr. Unga with the specified car under the same rates.
4. Payment for non-pecuniary losses- Note: Less significant, and difficult to achieve.
5. Agreement on how to record this negotiation- tape recording, solicitor’s letters.
OFFERS/ CONCESSIONS TO BE CONSIDERED
1) The first issue that we should try to negotiate with the other party is the return of deposit and compensation for the losses incurred by Mr. Unga in preparing for that holiday. This should act as the foremost objective of our negotiation. It is of significant importance to try and persuade the other party to reach a consensus on the refund of deposit and compensation for all the losses since this is a primary aim that our client wants to achieve out of this negotiation process.
Deposit worth £2700
£1350 for Insurance,
£1012 booking costs,
£ 800 clothing and equipments
This should be the first issue to be covered because it appears to be the most complex one, and as such it might end up requiring a lot of negotiation, and time as a consequence.
However, since we want to reach a compromise, the first offer that we should put on the table which seems to be beneficial to both parties is;
a) Maddisons Ltd should not exactly refund our deposit in cash, but rather they should hold onto our deposit, pay for the ferry, and insurance costs, as well as giving us the agreed discount on rental (£900, instead of £950) of the original car which might be available by now. If this happens we shall be able to move on with the frustrated contract which could not move on at the first place due to the occurrence of such frustrating events. If we agree on this,
Benefits on both parties: if the contract pushes on, Maddisons Ltd will get a chance to receive the amount they intended to receive out of the contract, while Mr. Unga will get a chance to go for his dream vacation. (Best negotiated Outcome)
b) However, if this fails, another alternative offer that we should try to compromise on is; Incase they disagree with paying our reliance costs, as per costs of insurance, booking costs, we can be flexible and convince them to pay only for the insurance costs, and leave other expenses which involves Mr. Unga directly (ferry booking, clothing and equipment costs) - (BATNA)
c) If all the above negotiations fail, the worst offer that we can accept which can however be somehow satisfactory to MR. Unga is; Maddisons Ltd can keep hold of the deposit, but give Mr Unga the agreed discount on rental of the agreed car, and we shall be able to excuse the payment for the ferry booking, insurance costs and clothing costs since in one way or another we could have incurred them despite the breach of the previous contract. (Worst acceptable outcome)
d) The WATNA that can occur out of this negotiation is for Maddisons Ltd to forfeit the deposit, refusing to pay all the losses suffered by Unga, and even worse claiming for the outstanding payment (£ 8100), and the mechanical costs (£200).
2. The second issue that we shall negotiate on is payment for non pecuniary losses, as to loss of time and annoyance. This issue has not been given much weight as the first one, because not only it is less significant, but the winning prospects are also minimal. However, the best negotiated outcome is for Maddisons to accept this. On the other-hand there appears not to be any WATNA, since as stressed above, this claim is hard to reach a compromise on, because the other party can hardly accept to do so.
Maddisons Ltd breached the contract.
Mr. Unga tried to mitigate losses by accepting a substitute vehicle at the same rates.
The loss that occurred was in contemplation of both parties by the time of formation of the contract
The signature binds Mr Unga i. e terms were incorporated
Recording of the negotiation
Once we have successfully conducted the negotiation, then we should record the agreed terms in a manner which epitomises ‘settlement outside the court’. This process can involve two stages;
a) First we can tape record all the agreed terms
b) We can put the agreement in writing which will be signed by both parties. We can address the written agreement as ‘Settlement and Compromise Agreement’, so as to show that, there was a common ground of understanding which was reached by both parties, for the benefits of both clients, under the expense of none.