Nov 30, 2017
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Negotiation – Mode of Alternative Dispute Resolution

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Negotiation

Negotiation means direct or indirect communication between parties with opposite interest in joint action. It enables the parties to communicate and resolve the dispute and manage it accordingly. Parties uses for solving problems. It also lays down some rules for future maintenance of relationship between parties.

The preeminent mode of dispute resolution is another word for negotiation. It is used by everyone eg. individual, institutions, at national level. Every negotiation is different from one another in sense of subject matter , number of parties and process used by them. It can also be used in other disputes resolutions such as mediation, litigation settlement conferences etc.

“I realized that the true fiction of a lawyer was to unite parties… A large part of my time during the 20 years of my practice as a lawyer was occupied in bringing out private compromise of hundreds of cases. I lost nothing thereby- not even money, certainly not my soul.”

– Mahatma Gandhi

Features of Negotiation

Following are the features:

  1. Voluntary : They are free to accept or reject the results of it and can stop the process at any point. Parties can also appoint a representative on their behalf to attend negotiation process.
  2.  Bilateral/ Multilateral : The parties can be more than two. There can be disputes between two or more individuals or two or state also.
  3. Non-Adjudicative : It only deals with parties. The parties only decides the result without third person entering it
  4. Informal  :It does not prescribe any rules for the process. Parties are free to make their own rule if so required. Normally they do not object on matters such as subject matter, timings, place etc. Only the matter of issue can be confidentiality of documents .
  5. Confidential : The parties can negotiate privately or publicly as per their convenience. The issue comes when the government is the party to dispute as some of the areas are confidential for security. so They need to consider Access to Information Act and The Privacy Act
  6. Flexible : The parties to disputes decides the scope.The parties can choose the topic that can be the subject matter of the negotiation. They have choice to adopt either a positional-based bargaining approach or an interest based approach.

Advantages of Negotiation

  • Negotiation is most flexible type of dispute resolution. It gives the parties freedom decide whether they want to go with it or not. The parties are free to set rules for the process of negotiation. They can choose the subject matter, date, place for negotiation.
  • It can not guarantee that the parties will agree at the end of negotiation and it will be successful. But many of them says that mostly it is successful as the parties adopt interest based approach rather than a positional based approach. It focuses on parties mutual needs and interest so the chances of being successful increases.
  • It is a voluntary process. Parties are free to adopt the negotiation method.
  • Third party need not involve in the process.
  • The result of negotiation is not binding on any person except parties to the dispute.
  • Parties acting in good faith can decide the clauses of agreement according to their interest.
  • It preserves and even improves the relationship between the parties once they are up to the result of dispute.
  • It is less expensive as compared to litigation and gives quick results.

Disadvantages of Negotiation

  • It can be good for the parties if arrived at successful results. But parties to the disputes are not always of same power and one of them can be weaker then it is the disadvantage to that particular party.
  • Parties to the dispute should clearly understand about way to negotiate so that they can reach to successful outcome. The limits should be defined as to negotiate so that parties can effectively participate in bargaining process.
  • If there is no third part in the process it becomes difficult to arrive at result as parties may be incapable of defining the issue etc.
  • If there is no third party in the process then either of the party can take advantage of another.
  • There is no compulsion for continuing the process. If any of the party wants to terminate the process can do so.
  • Some of the questions or issues are not flexible to negotiation. There is no chance of negotiation if parties are of different views or ideology having no mutual willingness.
  • It can not guarantee the willingness and good faith of parties.
  • The parties can use it for preventing either of the party from going to the court.

Types of Negotiation

There are two types of Negotiation

  1. Competitive/ positional-based.
  2. Cooperative/ Interest-based.

Competitive/Positional-Based Negotiation

In this type , the parties try to benefit oneself by maximizing their returns at the expense of another. they uses various methods to do so and try to prove that the interest of opposite party is not relevant. In competitive bargaining, focus is on specific person rather than on the true interest of the parties. Therefore it is criticized. The criticism which is mentioned above promote discouragement of mutual trust.

Cooperative/ Interest-based negotiation

In this type , parties should not try to benefit oneself on the expense of another party. It focuses at interest of the parties in the process. It uses an objective approach for mutual and fair solution for their dispute.

Now a days cooperative style of negotiation is used widely by the people and aslo known as Principled Bargaining

 

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