Negotiation has been defined as any form of direct or indirect communication whereby parties who have opposing interests discuss the form of any joint action which they might take to manage and ultimately resolve the dispute between them. Negotiations may be used to resolve an already-existing problem or to lay the groundwork for a future relationship between two or more parties.
Each negotiation is unique, differing from one another in terms of subject matter, the number of participants and the process used.
2. Characteristics of a negotiation:
- Voluntary: No party is forced to participate in a negotiation. The parties are free to accept or reject the outcome of negotiations and can withdraw at any point during the process. Parties may participate directly in the negotiations or they may choose to be represented by someone else, such as a family member, friend, a lawyer or other professional.
- Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties. They can range from two individuals seeking to agree on the sale of a house to negotiations involving diplomats from dozens of persons.
- Non-adjudicative: Negotiation involves only the parties. The outcome of a negotiation is reached by the parties together without recourse to a third-party neutral.
- Informal: There are no prescribed rules in negotiation. The parties are free to adopt whatever rules they choose, if any. Generally they will agree on issues such as the subject matter, timing and location of negotiations. Further matters such as confidentiality, the number of negotiating sessions the parties commit to.
- Confidential: The parties have the option of negotiating publicly or privately. For general information on the privileged nature of communications between solicitor and client during the course of negotiations.
- Flexible: The scope of a negotiation depends on the choice of the parties. The parties can determine not only the topic or the topics that will be the subject of the negotiations, but also whether they will adopt a positional-based bargaining approach or an interest-based approach.
3. Advantages of negotiation:
- In procedural terms, negotiation is probably the most flexible form of dispute resolution as it involves only those parties with an interest in the matter and their representatives, if any. The parties are free to shape the negotiations in accordance with their own needs, for example, setting the agenda, selecting the forum (public or private) and identifying the participants.
- Like any method of dispute resolution, negotiation cannot guarantee that a party will be successful. However, many commentators feel that negotiations have a greater possibility of a successful outcome when the parties adopt an interest-based approach as opposed to a positional-based approach. By focusing on their mutual needs and interests and the use of mechanisms such as objective standards, there is a greater chance of reaching an agreement that meets the needs of the parties. This is sometimes referred to as a “win-win” approach.
- There is no need for recourse to a third-party neutral. This is important when none of the parties wants to involve outside parties in the process.
- Unlike the outcomes of certain adjudicative processes, e.g., the courts, the outcome of a negotiation only binds those parties who were involved in the negotiation.
- Negotiations may preserve and in some cases even enhance the relationship between the parties once an agreement has been reached between them.
- Opting for negotiation instead of litigation may be less expensive for the parties and may reduce delays.
4. Disadvantages of negotiation:
- A particular negotiation may have a successful outcome. However, parties may be of unequal power and the weaker party(ies) may be placed at a disadvantage. Where a party with an interest in the matter in dispute is excluded or inadequately represented in the negotiations, the agreement's value is diminished, thereby making it subject to future challenge.
- A successful negotiation requires each party to have a clear understanding of its negotiating mandate. If uncertainty exists regarding the limits of a party's negotiating authority, the party will not be able to participate effectively in the bargaining process.
- The absence of a neutral third party can result in parties being unable to reach agreement as they be may be incapable of defining the issues at stake, let alone making any progress towards a solution.
- The absence of a neutral third party may encourage one party to attempt to take advantage of the other.
- No party can be compelled to continue negotiating. Anyone who chooses to terminate negotiations may do so at any time in the process, notwithstanding the time, effort and money that may have been invested by the other party or parties.
- Some issues or questions are simply not amenable to negotiation. There will be virtually no chance of an agreement where the parties are divided by opposing ideologies or beliefs which leave little or no room for mutual concessions and there is no willingness to make any such concessions.
- The negotiation process cannot guarantee the good faith or trustworthiness of any of the parties.
5. Dragon Law’s lawyers advice on the steps of a negotiation:
Each negotiation has its own unique characteristics. There is thus no uniform and exclusive manner governing the organization of a bargaining session. During any negotiation, the following considerations should be kept in mind:
- Concentrate on interests, not positions. Try to focus on the underlying interests of all the parties, i.e., their needs, desires, concerns and fears, and how they might be acknowledged and reconciled.
- Separate the people from the problem. Avoid blaming the other side for the problem(s) one has encountered and discuss the perceptions held by each side. Ensure that there is effective communication between all parties.
- Listen carefully and actively to what the other side is saying and acknowledge what is being said. This can be done through methods such as asking questions and by making frequent summaries.
- Try to make the negotiations a “win-win” outcome by creating options for mutual benefit.
- Use objective standards. Citing objective standards such as legislation or government policies enables parties to view the issues in rational rather than emotional terms and facilitates the conclusion of an agreement. There is likely a variety of alternative objective criteria that could be cited by the parties and, if possible, they should be identified by each negotiating team prior to entering into the negotiating session.
- When necessary, feel free to stop the negotiations if there is a need for the members of the negotiating team to confer on a new development. To avoid revealing the content of these discussions, the caucus should be held in a private location which is preferably not visible to the other side.
- Stay within the limits of one's negotiating mandate. Ensure that there is constant communication with the client when acting on the latter's behalf.
- Prepare for the possibility of being confronted with provocative, intimidating, unfair or deceptive behavior of a party to the negotiations.
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