Alternative Dispute Resolution - Negotiation
INTRODUCTION
Alternative
dispute resolution (ADR) encompasses various forms aimed at resolving conflicts
without resorting to litigation. Among these arbitration and mediation are the
most prevalent. However, negotiation is almost always the first approach
attempted to resolve disputes due to its inherent advantages and non-complex procedures.
This comprehensive discussion aims to critically analyse negotiation as a form
of ADR, focusing on its procedure, styles, and the associated pros and cons.
Negotiation
is a non-binding process where the involved parties engage in direct
discussions, without the involvement of a third party, with the aim of reaching
a mutually agreed-upon resolution to the dispute (P.C Rao and William
Shefield,2006).
NEGOTIATION PROCEDURE
The
approach used in negotiation can vary based on several factors, including the parties'
goals, the subject matter, the personalities of the parties involved, the
negotiator’s individual preferences, and cultural considerations (Jacquiline Nolan-Haley, 2008). However,
some essential elements are almost always present during the negotiation
process.
Firstly,
the parties involved in a negotiation must thoroughly understand the facts of
the issue. This understanding enables them to identify the key issues that need
to be addressed, thereby facilitating better communication and reducing the
likelihood of misunderstandings.
Secondly,
the parties involved in a negotiation must be capable of ascertaining their
personal objective (P.C Rao and William Shefield,2006). This
aids the disputants in effectively trading concessions by prioritizing their
most important goals and compromising on less significant ones. As a result,
this can lead to higher satisfaction with the negotiation outcome, as parties feel
their needs have been met.
Additionally,
the parties must mutually agree on when and where the negotiation will occur.
This agreement ensures that the negotiation takes place on neutral ground,
comfortable for both parties, and at a time that is convenient for them to sit
down and resolve their dispute.
Parties must also decide whether they will
have a third party assist them during the procedure. As negotiation is a
party-driven process, they may choose to have a neutral third party present to
facilitate fair and balanced discussions and help prevent the conflict from
escalating.
Lastly,
the parties must agree on an agenda and base their discussions on it. A well defined
agenda provides a roadmap for the negotiation, helping the parties
systematically work through their dispute and reach a favorable settlement.
STYLES OF NEGOTIATION
Generally, there are three forms of negotiation. These
are cooperative, collaborative, and competitive styles of negotiation (Edward Burnet, Charles Craver and Ellen Deason, 2016).
The cooperative style
of negotiation is premised on the concept that negotiations need to be seen as
a zero-sum situation. Therefore, the gains of one party in the negotiation are
not necessarily at the expense of the other party. Both parties mutually agree
to a settlement. The aim is to maintain an ongoing relationship between the
parties (Edward Burnet, Charles Craver and Ellen Deason, 2016). The benefit of this style is that both parties are
satisfied with the outcome although it may not be the best possible outcome. In
recent years, the form of cooperative negotiating style known as principled
bargaining has won widespread acceptance.
The collaborative style of negotiation aims to achieve
a win-win outcome at the end of the negotiation process. This style is often
considered a fair one because the benefits are equally distributed, showing no
prejudice to any party (Chandana Pradeep,2009).
However, because
both parties seek to get the best possible outcome, it may be hard to achieve
without the other feeling like their losing more than the other.
The last style is competitive negotiation. This
approach treats the process more like a competition that has to be won or lost.
Here, parties seek to maximize their returns at the expense of another (Chandana Pradeep,2009).
Consequently, there is no mutual benefit, and does not preserve the existing
relationship of the parties. This style of negotiation has received a lot of
criticism because it is likely to fail thereby leading to the use of other
forms of dispute resolution. After all, each party wishes that their individual
objectives are overlooked for the benefit of another.
ADVANTAGES AND DISADVANTAGES OF NEGOTIATION
One
of the main advantages of negotiation is that it is a voluntary process (Maria, 2024). No party can be forced to
settle their dispute using this mechanism if they do not wish to use it.
Additionally, if a party is not satisfied with the outcome, they are free to
reject it.
Secondly,
negotiation is a party-driven process. This means that the parties control the
entire negotiation process without interference from a third party. As a
result, they can make all decisions regarding the process, ensuring that the
objectives of the negotiation are achieved.
Additionally,
negotiation is cost-effective (Maria,
2024). It is often less expensive than litigation or other forms of
alternative dispute resolution, such as arbitration, which involve legal fees,
court costs, and other expenses. Negotiation saves resources and time by
reaching an agreement more quickly than formal dispute resolution processes.
Also, By its nature, negotiation is typically private, allowing the disputants
the freedom and comfort to openly discuss sensitive issues without public
scrutiny. As a result, it can protect reputations and business interests.
Despite
these advantages, negotiation also has several disadvantages. Although
negotiation aims to achieve mutual benefits for both parties, it can be
influenced by power dynamics, where one party may have more resources,
leverage, and experience than the other (Maria,
2024). This imbalance can lead to
unfair or one-sided agreements.
Additionally,
while negotiation can be faster than litigation, it may still be
time-consuming, especially if one party is not satisfied with the outcome. In
such cases, parties may need to explore other solutions. If a party is
unwilling to compromise for the sake of reaching a mutual settlement, the
process can consume even more time. Lastly, there is no assurance that the
negotiation process will lead to an agreement. Parties may reach an impasse and
have to resort to other alternative dispute resolution methods. This
uncertainty can be frustrating and may prolong the dispute.
CONCLUSION
Negotiation
is a widely utilized form of alternative dispute resolution due to its
informal, voluntary, and cost-effective nature. It enables parties to maintain
control over the process, fostering an environment conducive to open communication
and mutually beneficial outcomes. Despite its advantages, negotiation can be
influenced by power dynamics and may not always lead to a resolution,
potentially necessitating further dispute resolution methods.
BIBLIOGRAPHY
BOOKS
Edward
Burnet, Charles Craver and Ellen Deason, Alternative Dispute Resolution The
Advocates Perspective Cases and Materials (5th edn Carolina Academic Press,
2016)
Jacquiline
Nolan-Haley, Alternative Dispute Resolution in a Nutshell (3rd edn
Thompson/West, Minnesota 2008)
P.C
Rao and William Shefield, Alternative Dispute Resolution what is it and how
does it work (Universal Law Publishing Company, Dilkhush Industrial Estate
2006)
OTHER SOURCES
Chandana Pradeep, ‘ An Analysis between Collaborative
and Competitive Negotiation’ (Ipeaders, 26 February 2021) An analysis between collaborative and
competitive negotiation - iPleaders
accessed 9 June 2009.
Maria, ‘Adr Negotiation Advantages And Disadvantages’
(Institutvert, 29 March 2024) Adr Negotiation Advantages And Disadvantages
- Institutvert.org accessed
9 June 2024.
LEGAL AID INITIATIVE(Bringing the Law to Your Comfort)
About the Author:
Nosiku Nyambe is a third year student at the University of Zambia and serving as the Chief Legal Editor of Legal Aid Initiative.