NEGOTIATION

Methods of ADR
It is to be noted that ADR has several methods. However, the principle of
natural justice is required to be followed while adopting any method
under ADR. A negotiator or mediator may follow more than one method
depending upon nature of dispute and strategies. Although, the methods
of ADR are as under.
(i) Arbitration.
(ii) Negotiation.
(iii) Mediation
(iv) Conciliation.
(v) Mini trial.
(vi) Expert appraisal.
(vii) Neutral evaluation.
(viii) Hybrid arbitration.

The chief processes of ADR are as under :

1. Arbitration.—It is a private adjudication of disputed matter by
intervention of a neutral third party, who has been conferred power
to make binding arbitral award. It is a process in which the disputed
matter is submitted to the arbitrator/arbitrators constituting an
arbitral tribunal which passes a reasoned arbitral award binding on
the parties.

2. Conciliation.—It is a non-binding process in which an impartial

person settles the dispute amicably and make recommendations
pertaining to dispute. Such person is called ‘conciliator’. The
Industrial Disputes Act, 1947 and the Family Courts Act, 1984
provide settlement of disputes by conciliation.

3. Mediation.—In the process a third party assists the conflicting

parties to find out a solution to their problem.

4. Negotiation.—In this process the intervention of a third party is

not there. Whereas disputants take their own initiative across the
table to settle their disputes. In other words it is a non-binding
process in which discussions and deliberations take place between
the parties or representatives of the parties specifically without
 intervention of a third party. However, such representatives are
called ‘negotiators’.

NEGOTIATION

Negotiation.—It is the simplest means for redressal of disputes. In this

mode the parties begin their talk without interference of any third person.
The aim of negotiation is the settlement of disputes by exchange of views
and issues concerning the parties. There is an ample opportunity for
presentation of case in this mode of redressal. If there is understanding
and element of patience between the parties this mode of redressal of
dispute is the simplest and most economical.

Negotiation is also a form of dispute resolution, but there is no third party

to adjudicate the matter, therefore the parties work together to find a
mutually acceptable solution or a compromise. The parties may choose to
be represented by their attorneys during their negotiations. Negotiation is
not statutorily recognized in India. There are no set rules for conducting a
negotiation.

The term 'Negotiation' can be defined as a direct or indirect form of

communication through which the parties with conflicting interest
deliberate a form of Joint Action aiming to resolve the dispute between
them. Negotiation can be used either to resolve any existing problem or
for a future relationship between two or more parties by setting a ground
work.

Need for negotiation.—Undoubtedly, negotiation is the dominant factor

in settlement of dispute. In process of negotiation the important step is
beginning of dialogue between the conflicting parties in presence of
negotiator.

Essential Ingredients of Negotiation.—These are as under :—

(i) It is a interpersonal communication process.
(ii) It settles the disputes.
(iii) It is a voluntary process.
(iv) It is a non-binding mechanism.
(v) It is a controlled process.
(vi) It has capability to achieve wide ranging solution.

Scope Of Negotiation:
The history of negotiation can be traced back to the times of Monarch era
where Kings used to negotiate at the time of ongoing Wars in order to
prevent the bloodshed in war. After the two great World Wars in the 20th
century the negotiation rounds resulted into the creation of League of
Nations followed by United Nations.

The scope of negotiation has increased over the time. The major objective
behind negotiation is that the parties involved wishes to settle the dispute
outside the court. The litigation process has its own disadvantages such
as: bulky paperwork, excessive time, delays in process, costly- expensive
and unfavorable decision.

Because of such reasons alternative dispute resolution gained fame and

with increase in fame of negotiation the demand for experienced
negotiators also increased. Negotiation is considered to be alternative
dispute resolution as an informal process which helps the parties to
resolve that differences through mutual understanding and agreement.

Some situations in which negotiation is applicable:

1. Marital Deadlock:

Where a dispute involves a relationship of marriage the pre

litigation process includes negotiation. In such dispute�s
sentiments and ego between husband and wife in a conjugal
relationship are often settled by communication during negotiation
process.

2. Business Negotiation:

Business negotiation aims to manage business and corporate

matters. The skill which are required in such negotiation includes
making deals discussion on profits of the company team building
negotiation of contracts negotiations with employees and laborer's
efficiently handling cases of disputes between clients and
employees.

In order to establish a business agreement, the art of negotiation is

essential full stop business negotiation can be considered as a skill
where in the big problems are drop down to small chunks and to
every touch problem a solution is carefully found out.

3. Contract-Based Negotiations:

Before entering into a contractual relationship, the parties negotiate

the terms condition of dispute. This type of negotiation is the most
famous type of negotiation and is in somewhat line with that of
 business negotiation. After a breach of contract, the deadlock can
also be settled with the help of negotiations.

4. International Negotiations:

The conflict between different nations can easily turn into scandals
that needs to be resolved immediately. The international
negotiations generally take a longer time than other negotiation
processes as this process is complicated and involve various steps s
bureaucrats are involved in the process. The major objective of
International Organization is primarily to allow a smooth
interconnectivity and interrelations between Nations in such a way
that it is beneficial for both for all countries in the economy.

METHOD/Characteristics Of Negotiation Process:

THERE IS NO PRESCRIBED METHOD. IT IS MORE INFORMAL IN

NATURE.

1. Voluntary:

Process of negotiation is conducted through free consent of parties.

No party is forced to participate in the process. The outcome of
negotiation can be freely accepted or rejected at the will of parties.
Also, at any point of process it can be withdrawn. The parties can
directly negotiate or they may choose anyone to be represented.

2. Bilateral/ Multilateral:

The process of negotiation can involve two or more parties. The

parties can range from two individuals seeking to agree on sale of
house to negotiation involving diplomate from dozens of States.

3. Non-Adjudicative:

Negotiation is an informal process which only involve the parties.

The outcome is amicable reached by the parties together without
any records to a third party through mutual understanding.
 4. Informal:

Unlike arbitration negotiation is an informal process which has no

prescribed rules and regulations. The parties get a free will to adopt
whatever rules they choose if any. Generally, the parties agree on
the issues such as the subject matter timing and location for the
process. Other rules may include metals such as confidentiality
number of negotiating sessions and which documents may be used
can be addressed.

5. Flexible:

The scope of negotiation is dependent upon the choice of parties

where determine not only the topic which will be the subject matter
of negotiation but also if they will adopt a positional based
bargaining approach or interest-based approach.

Stages Of Negotiation (Process)

Each negotiation has its own unique characteristics. Therefore, there is no
such uniform and exclusive method of negotiation and bargaining session.
A structured approach has to be followed in order to come at a desired
outcome. Therefore, various steps have to be followed in the negotiation
process so that the parties with conflicting ideas and differences reach to
an amicable solution.

The process includes following stages:

1. Preparation
2. Discussion
3. Clarification of goals
4. Negotiate towards a Win-Win outcome
5. Agreement
6. Implementation of course of action

1. Preparation/ Initial Assessment

The process of negotiation begins with the signal of communication from
one party to the other showing a willingness to bargain. As negotiation is
a voluntary process it is of primary importance to know that whether the
other party is interested in negotiation or not.

Some of the important factors should be ensured before moving on. They
are:
 • if there is desire to resolve the dispute
• the credibility of other parties
• the willingness of parties to preserve or establish the relationship
• whether there is disparity between the parties that it would be
impossible to bargain equal or not
• desirability of using any other form of dispute resolution system.

This stage involves ensuring the important facts of the dispute and its
situation in order to clarify the position of both the parties. Before any
negotiation takes place, a decision shall be taken as to when and where
the meeting for negotiation shall happen and as to who will attend the
discussion and negotiation sessions. During this time setting of a limited
timescale can help prevent this agreement continuing.

2. Discussions
Once it has been established that negotiation is the appropriate
course of action the further arrangement shall be made in that
course with the other party included. The arrangement must
include:

• outlining the scope of negotiation

• forming a time table as to whether or not that will be a fixed
duration of negotiation
• ensuring that all the interested parties are identified and have been
consulted
• choosing a location Which is feasible to both the parties.

During this stage the parties of other side put forth their case as they see
it and try to understand the vice-versa situation. Clarification as to
misunderstandings and disagreements shall be spoken and heard. An
equal opportunity shall be granted to both the side.

3. Clarification Of Goals
From the second stage of discussion whatever goes interest and
viewpoints of the parties of this agreement needs to be clarified. To
clarification it becomes easy and possible to identify and establish a
common ground post settlement. Clarification is one of the crucial parts of
negotiation process is without a doubt the misunderstanding and
disagreements are likely to continue which main result to cause problems
and barrier in reaching a beneficial outcome.

This can lead to harmonizing and Reconcile the bearing and competing
interest of the parties.

4. Negotiating Towards A Win-Win Situation

It is not always possible to reach to a Win-Win situation but it shall be the
ultimate goal. this stage focuses on which can be termed as Win-Win
outcome wherein both the parties may have the satisfaction that they
have gained something positive through the process and both the parties
may feel that their point has been considered.

5. Agreement
A proper agreement can be achieved only when both the parties
understand each other�s point of view and interest are considered
simultaneously. Every member involved in the negotiation process it is
essential to keep an open mind so that an acceptable solution can be
reached full stop such agreement needs to be clearly communicated so
that no for the dispute can occur.

6. Implementation Of Action:
Once agreement is reached a proper course of action has to be
implemented so that the decision can be carried out.

Advantages Of Negotiation
1. Party-based Dispute Resolution:

One of the primary reasons for success of negotiation is that it only

involves the stakeholders and does not involve any other party as a
result of which the process remains a private affair and confidential.
The parties decide the subject matter duration of process locations
papers to be referred etc.

2. Freedom of Parties:

The parties are at freedom to choose agendas of the choice in

addition to ensure your objective that negotiation is achieved.

3. Consent of Parties:

The negotiation process ensures that both the parties involved in

negotiation have free will in participating and that no one is forced
to engage in the process. this freedom also ensure that all the
parties are at equal footing and there is no play of powers.
 4. No Third-Party Intervention:

Unlike most of the radius system which requires a neutral third

party for dispute resolution such is not the case with negotiation.

5. Comfortable Process:

Negotiation is an informal process. It is normally a speedy process

whose decisions are not binding upon the parties. Latest a
completely self-build process wherein the decision can either be
accepted or rejected by the parties at their own win all the process
can be withdrawn at any point of time.

Disadvantages Of Negotiation
1. Power Tactic:

It is not always necessary that the parties to negotiations are of

equal stature and power. Therefore, in the absence of a neutral
third party the party whichever is in the position to dominate the
other uses the dominance over the consent of other party and come
at an agreement. This leads to an unfair agreement which is
ultimately useless.

2. Impasse:

Sometimes the difference is and disagreement between the parties

may lead to a deadlock situation. And Impasse situation occurs
during the negotiation process where at any discussion the parties
are stand still and cannot have any for the discussion. This stage is
very frustrating when no possible successful outcomes can happen.
This generally happens when any one party is so rigid over its goal
that no middle ground can be achieved. This ultimately results into
a walkout situation.

3. Backing Off:

The unsuccessful negotiation leads to creation of bad relations

between the parties along with termination of any business are
contractual relations afterwards. It also happens that sometimes
 the parties lose confidence in the process of negotiation as a dispute
resolution and consider the other options.

4. Not all issues are Negotiable:

There are various cases which involve multiple stakeholders for home
negotiation process cannot be made applicable and such cases can
directly go to the court for the decisions.