AN CONCISE OVERVIEW OF NEGOTIATION AS A FORM OF ALTERNATIVE DISPUTE RESOLUTION

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.

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