Negotiation

Alternate Dispute Resolution comes in as a handy and productive mode of resolving conflict between parties without making them resort to the conventional domains of Courts of Law. However, within the overall concept, lie numerous methods with different fundamental notions, procedures and aims, which in a way makes it flexible enough for the parties to choose the most suitable method. One of these methods is 'Negotiation'.

There is a very popular maxim underlying the concept of Negotiation as a mode of ADR. 'Consilia omnia verbis prius experiri, quam armis sapientem decet.' It puts forth that 'It is a part of wisdom to exhaust negotiation before resorting to arms.'

To understand the concept, one must understand the definitions of the term, which are as follows:

  • A non-binding procedure in which discussions between the parties are initiated without the intervention of any 3rd part, with the object of arriving at a negotiated settlement of dispute. 
  • A communication process used to put deals together or resolve conflicts. It is a voluntary, non-binding process, where parties control the outcome and also the procedure by which they are supposed to make arrangements. Most parties place very few limitations on the negotiation process, due to which it allows for a wide ranging possibility of solutions, thereby maximizing the possibility of joint gains.
    -- Pepperdine University, USA 
  • It's also defined as a process of managing relationships or a discussion to bring an amicable end to a dispute, in simpler terms. 

Pre-requisite Conditions

  • There must be 2 or more parties that are prepared to interact on an interpersonal level or intergroup process. 
  • There must be a conflict of interest between 2 or more parties, where such concerned parties must be seeking to resolve the conflict. 
  • There shall also be an expectation of a better deal via the process of negotiation, as a contributing factor. 
  • Parties involved in the dispute must be seeking for an agreement and not argument or fight. 
  • There must be mutual expectations of 'give and take.' 

The 4 important C's in Negotiation:

  • Common Interest
  • Conflict of Interest
  • Compromise
  • Criteria

While there are no statutory provisions for this, it is still a very convenient method to resort to, in the underlying knowledge of the people associated with the concept of dispute resolution, particularly because it is quite flexible and offers a wide range of solutions.

There is still a discussion whether this method technically qualifies to be an ADR procedure or not, since there is no involvement of any 3rd party but generally it's treated as one of the main components of ADR, as well as its superior, sometimes. 

Essentials

  • Being a bipartite process, it involves two parties or two groups of parties, usually.
  • It is fundamentally a Communication based process.
  • It tends to resolve conflicts.
  • Negotiation tends to be a voluntary exercise, i.e, can be resorted to only upon mutual consent of the parties.
  • The resolution arrived by means of Negotiation is non-binding in nature, i.e, it doesn't legally bind the concerned parties to any decision.
  • The Parties carrying out the process always retain control over result and procedure.
  • There is a significant possibility of wide-ranging solutions.
  • There is a possibility of maximizing the joint gains. 

Phases

  • Preparation
  • Opening
  • Bargaining
  • Closing

BATNA - WATNA {Best/Worst Alternative to Negotiated Agreement}
It is a method of Negotiation, created by Ury and Fisher, also considered as the Best method of evaluating outcome. It takes into account the risk factors involved in examining the present option, incurred costs, time and the relations between the parties involved. During the First stage, the Negotiator is supposed to list everything that could be done if there is no agreement. Secondly, Parties must explore the best options and improvise on their stances to arrive at suitable outcomes and then choose the best option. 

4 possible outcomes

  • Win-Win
  • Lose-Lose
  • Win-Lose
  • No Outcome

There are two types of Negotiations, usually known as follows:

I. Distributive/ Competitive/ Fixed Pie Negotiations.

This sort of arrangement aims at maximizing the gains for the involved parties. It usually involves stranger parties who are not likely to have any interaction in the near future. Also, it tends to be a one-time interaction, usually. There is no underlying interest in forming any long term relationship.

Few summarized points:

  • It is all about self serving interests.
  • The relationship between the parties is not important.
  • It is best to avoid these for these are not amicable in nature.
  • It is best to avoid making opening bids for they reveal quite a lot of information.
  • Secrecy in the procedure helps, though.
  • There is also a possibility to walk away, which exists throughout.
  • The stronger beats the weaker as there can only be a Win-Lose situation or No outcome, since there is very little chances of mutual welfare.

This type of Negotiation must be used when: A party is in a stronger position as it's a good position to bargain, being a one-time or short term deal only. It offers limited bargaining resources to the other party.​​

II. Integrative/ Cooperative/ Collaborative Negotiation

This arrangement involves way more co-operation than its counterpart. Parties tend to join forces to achieve something together. It involves a higher degree of trust and long term relationship. Ideally, being a two-fold process, leads to a win-win situation, based on creative problem solving concept. All must benefit from the solution is the inherent idea. It involves maximum gathering of information and revelation, involving much better communication too.

This type of Negotiation must be used when: When a party ends up in a weaker position or has unlimited Bargaining resources and an aim to form a long term relationship.

Pre-requisites for Negotiation

  • Will to co-operate, communicate, etc.
  • Mutual benefit scope
  • Time-constraint awareness
  • Any other procedure not leading to the desired outcome
  • Identification of the issues
  • Compatible interests of the parties
  • Private Co-operative process being more important to the parties.

Factors for Negotiation

  • Goals & Interests of the Parties
  • Perceived Interdependence between the Parties
  • History between the Parties
  • Personalities of people involved
  • Persuasive ability of each party

International Negotiation

Conflicts between 2 or more nations, economies or International institutions are supposed to be solved via Negotiation. Various factors include mutual interdependence, cultural issues, individual representation, etc.

Example - Egypt Israel Peace Treaty

Influence of Culture on Negotiations

  • Norms of behavior and expression of feelings
  • Relationship Building norms
  • Value of group relationship
  • Value of time and attitude towards future

Hence, considering this brief description of this particular mode of ADR, it is quite evident that this process enables the resolution of disputes while giving the parties complete autonomy and flexibility to resolve their conflict on their own and even to opt out in case of any unfortunate circumstances.

 

Arjun Kohli 
on 29 August 2017
Published in Others
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