COURSE-IV: CLINICAL COURSE-II:

ALTERNATIVE DISPUTE RESOLUTION SYSTEMS

COURSE TEACHER- DR. SAMINA NAHID BAIG
UNIT IV

UNIT-IV
Negotiation: Meaning; Different styles of negotiation; Different approaches to negotiation; Phases of
negotiation; Qualities of a negotiator; Power to negotiate.
Important Questions

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1. What is Negotiation? What is the difference between Negotiation and Arbitration?

Answer:

“Discourage litigation. Persuade your neighbors to

compromise whenever you can. As a peacemaker the
lawyer has a superior opportunity of being a good
man. There will still be business enough”.
-Abraham Lincoln

Meaning of Negotiation:

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In simple terms negotiation means a discussion between two or more disputants who are trying to work out a solution to
their problem.

When parties negotiate, they expect give and take. They mutually come to a solution where they influence each other for
an amicable solution agreed by both. Therefore, it a method by which two or more parties attempt to reach an
agreement.

Negotiation is a process by which the parties resolve their disputes themselves by arriving at a mutually acceptable
amicable solution.

In this mode of settlement, the parties or their representatives voluntarily sit together themselves and negotiate directly by
putting the factual content of the dispute and discuss their claims and counter claims, earmarking the extent to which
they can forego their claims and their readiness to accommodate each other.

Negotiation is the basic dispute resolution process. The parties mutually agree upon a course of action and bargain for
advantage and it signifies solving disputes by dialogue. Effective bilateral communication, mutual accommodation,
good faith and trust amongst the parties and enthusiasm to amicably resolve the dispute steer the disputant parties
towards a mutually acceptable settlement in negotiation resulting in a win-win situation. Objectivity and willingness
to arrive at a negotiated settlement on the part of both the parties are essential requirements of negotiation.

In this mode of settlement, the parties or their representatives voluntarily sit together themselves and negotiate directly by
putting the factual content of the dispute and discuss their claims and counter claims, earmarking the extent to which
they can forego their claims and their readiness to accommodate each other.

Negotiation is a non-binding procedure in which discussions between the parties are initiated without the intervention of
any third party, with the object of arriving at a negotiated settlement of the dispute. A joint decision made by two or
more parties is referred to as Negotiation. Reaching a consensus is the basic idea behind negotiating. “Negotiation is
the process of two individuals or groups reaching joint agreement about differing needs or ideas. Before a suit is filed
in the court, negotiation is done. If successful the suit may be prevented, therefore it is a preventive ADR. In this way
damage of relationship, loss of money can be avoided or saved, as well as builds trust and confidence between the
disputing parties. In India, Negotiation doesn’t have any statutory recognition i.e. through way of legislation.
Negotiation is self-counseling between the parties to resolve their dispute.

Negotiation is a process that has no fixed rules. Negotiation 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. 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 a dialogue
intended to resolve disputes, to produce an agreement upon courses of action, to bargain for individual or collective
advantage, or to craft outcomes to satisfy various interests.

Negotiation is the simplest and most purposeful method of settling commercial disputes between the parties. The
disputants themselves are in the best position to know the strengths and weaknesses of their respective cases. If there
is any need of advice felt by them on such points of difficulty or controversy, the disputed parties can seek the needed
advice from the competent persons or from the experts of such field. The process of Negotiation thus enables the
parties to iron out their differences and dispute by direct face-to-face interaction. It avoids unnecessary acrimony,
anguish and expense. The process of negotiation can help in healing the wounds and thus remedies pains caused by
inter – party frictions. Thus, Negotiation can take place in business, non-profit organizations, Government branches,
legal proceedings, among nations and in personal situations such as marriage, divorce and parenting.

M. Anstey, in his book “Negotiating Conflict” explains core elements of negotiation as follows:
a) Negotiation is a verbal interactive process
b) It involves two or more parties;
c) The parties are seeking to reach an agreement
d) For a problem or conflict of interest between them
e) In which they seek, as far as possible, to preserve their interest, but adjust their views and positions in the
joint effort to achieve an agreement.

Essentials of Negotiation-
Essential elements of Negotiation are as follows:
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 a. It is a communication process
b. It resolves conflict
c. It is a voluntary exercise
d. It is a non-binding process
e. Parties retain control over the outcome and procedure
f. There is a possibility of achieving wide ranging solutions, and of, maximizing joint gains.

Difference Between Arbitration and Negotiation

S. No Arbitration
1 It is a quasi-judicial process
2 It involves laws and rules of the
land
3 An Arbitrator presides over the
arbitration process and listens
to both the sides.
4 In arbitration, the arbitrator
decides on the outcome of the
dispute after hearing both
sides. The resolution is called
an award, which is final and
legally binding.
5 The arbitrators solely and
directly decide on the outcome
of the dispute
6 The costs of arbitration
can be decided by the arbitrator
or by both disputing parties,
depending on the situation.
7 An award (in arbitration)
cannot be appealed to a court.
8 Arbitrators are usually lawyers
or people associated with the
law
Negotiation
It’s a private process
It has no fixed laws and rules
a facilitator oversees a negotiation.
A facilitator allows both parties
talk to each other about the dispute
and aids in making a settlement.
The result of a negation is called a
memorandum of agreement.
This document is not as legally
binding as an award.
The facilitators let both parties
come into their own agreement.
The negotiator’s fee is usually
split between the two parties.
On the other hand, a court can
question or overturn a memorandum
of agreement that transpired as
a result of negotiation.
Facilitators may not have a law
background.

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2. What are approaches of Negotiation?
Answer:
Negotiators have five kinds of approaches:

1. Accommodating
2. Competing
3. Avoiding
4. Compromising
5. Collaborating

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* Ignore the word “negotiation styles” in
the picture. It has to be read as
approach.

The attitudes of negotiators were

classified into five categories by the
Pepperdine University institute of
Dispute resolution. Based on that there
are five approaches:

1. Accommodating: In the
Accommodating approach, the
disputants in this approach sacrifice his own Interest in favour of the other party and is called the
accommodator. Negotiators that exhibit this style focus on maintaining relationships with the other party.

They tend to smooth over tensions, minimize differences, and are most concerned with maintaining a good
rapport and satisfying the needs of the other party. This style is lower in assertiveness (confidence and boldness)
and higher in cooperativeness. These negotiators tend to emphasize the relationship as more important than the
substance of the agreement.

2. Competing: Negotiators that exhibit this style are assertive, self-confident, and focused on the deal and results.
These individuals tend to pursue their own concerns, sometimes at their counterpart’s expense, and in the
extreme can become aggressive (forcefully in anger) and domineering (dominant or bossy).

This style is higher in assertiveness (confidence and boldness) and lower in cooperativeness. Competing
negotiators tend to be more focused on the substance than the relationship. This approach is opposed to an
accommodating approach. The parties assert self-interest, rights and benefits more than the opposite party.

3. Avoiding: Negotiators that exhibit this style are generally less assertive and apprehensive (doubtful,
fearful confused). They prefer to avoid stepping into or creating tension. They stay neutral, objective or
removed from the situation or leave responsibility to their counterpart.

The individual does not immediately pursue their own interests or those of the other person and there is an
element of self-sacrifice in this mode. This style is low in assertiveness and in cooperativeness, and not focused
on either the substance of the agreement or the relationship.

4. Compromising: Negotiators that exhibit this style often split the difference, exchange concessions, and seek a
quick middle-ground solution, which tends to end in moderate satisfaction of both parties’ needs.

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 This style is intermediate (middle) in assertiveness and cooperativeness and more focused on creating a decent
agreement relatively efficiently while maintaining some relationship. In this the negotiators are of compromising
nature and is interested in finding out solutions. The parties agree for partial solutions through compromise. The
negotiator equally values issues, justice, own interests placing importance to the response to other party’s
interest.

5. Collaborating: Negotiators that exhibit this style are often honest and communicative (outgoing and
talkative). They focus on finding original and creative solutions that fully satisfy the concerns of all parties, and
suggest many ideas for consideration before deciding.

This style is high in assertiveness and in cooperativeness, promoting both the relationship and the substance of
the agreement at hand as very important. These negotiators tend to value taking the time to create optimal long-
term outcomes over efficiency and leaving value on the table.

All styles serve, and each has advantages and risks. And sometimes one style may be more useful in certain situations than
in others. In order to be the most effective negotiator, one must recognize one’s own tendency, assess as best as
possible their counterpart’s style, and adjust their own to allow for smoother negotiations.

In general, if negotiators strive for using a collaborative style, they incorporate the relationship focus of an
accommodating style, the assertiveness on own needs of a competitive style, the caution and observational skills of
the avoiding style, and value maximization often neglected by the compromising style. While the collaborative style
may not make sense in all negotiations, this mode can be especially effective with business situations because of the
long-term nature of the relationships internally and externally, as well as the need for strong substantive negotiation
outcomes.

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3. What are the Different styles to negotiation?

There are basically two different styles of negotiation. Style of negotiation is also a strategy. In some occasions
the style reflects the attitude of the party and an experienced negotiator can guess the result of the from the
conduct of the party as becomes evident by the style.

Negotiation style is reflected in communication skills, interpersonal behaviors of the negotiators, language,
voice tones, choices, listening behavior, non-verbal gestures and judgments.

1. COOPERATIVE STYLE – In this style, negotiators adopt a cooperating style. They are mutually respectful in
their choice of language, place, listening and non-verbal interaction and they prefer positive interactions which
promotes understanding and a culture of working together.

Cooperative styles are characterized by:

a) This style is problem solving kind where gain of one party is not at the cost of the other party.
b) It is also called as a win-win approach.
c) Agreements are reached after may discussions with interactive bargaining between both the parties.
d) There is "Effective communication" between the parties where ideas are verbalized, group members pay
attention to one another and accept their ideas and are influenced by them. These groups have less problems
communicating with and understanding others.
e) There is "Friendliness, helpfulness, and less obstructiveness" is expressed in conversations. Members tend
to be generally more satisfied with the group and its solutions as well as being impressed by the contributions
of other group members.

f) There is "Coordination of effort, division of labor, orientation to task achievement, orderliness in

discussion, and high productivity" tend to exist in cooperative groups.

g) There is a "Feeling of agreement with the ideas of others and a sense of basic similarity in beliefs and values,
as well as confidence in one's own ideas and in the value that other members attach to those ideas, are
obtained in cooperative groups."

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 h) We can see "Willingness in the parties to enhance the other parties’ power" to achieve the other's goals
increases. As other's capabilities are strengthened in a cooperative relationship, you are strengthened and vice
versa.

i) The conflicting interests and the mutual problem are solved by collaborative effort by recognizing the
legitimacy of each other's interests and the necessity to search for a solution responsive to the needs of all."
j) This tends to limit the scope of conflicting interests and keep attempts to influence each other to decent forms
of persuasion.

2. COMPETITIVE STYLE- This style is in contrast to the cooperative style. In this style the parties attack each
other with war of words, create coercive or tense interpersonal dynamics, use aggressive language, prefer to
irritate other with coercion and threats. This style creates tension, distrust, which results in relation, hostility and
even result in failure of negotiation process via a deadlock.

Characteristics of Competitive style:

i. The negotiator will start with High opening demands
ii. The negotiator will resort to Threats, tension and pressure
iii. The negotiator will Stretch the facts to waste time
iv. The negotiator will be Sticking to positions and not compromise on any point.
v. The negotiator will be tight lipped and will not be expressive in his demands.
vi. The negotiator will want to outdo the other opposite party.
vii. The negotiator will Want a clear victory at the defeat of the opposite party.
viii. Communication is obstructed as the conflicting parties try to gain advantage by misleading each other through
false promises and misinformation.
ix. Communication is ultimately reduced as the parties realize they cannot trust one another's communications as
honest and informative
x. Obstructiveness and lack of helpfulness by the parties lead to mutual negative attitudes and suspicion of one
another's intentions.
xi. Ongoing disagreement and critical rejection of ideas reduces participants' self-confidence as well as confidence
in the other parties.
xii. The conflicting parties seek to increase their own power and therefore see any increase in the other side's power
as a threat.
xiii. The competitive process adopts the idea that the solution of the conflict can only be imposed by one side on the
other.
xiv. This orientation also encourages the use of coercive tactics such as psychological or physical threats and/or
violence.
xv. This process tends to expand the range of contested issues and turns the conflict into a power struggle, with each
side seeking to win outright.
xvi. This sort of escalation raises the motivational significance of the conflict for the participants and makes them
more likely to accept a mutual disaster rather than a partial defeat or compromise.
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4. What are the different phases of negotiation? -

Answer:
There are four phases of negotiation:
I. Stage 1: Preparation Phase - This phase involves information collection. Parties must frame the problem and
recognize that they have a common problem that they share an interest in solving. In this phase it is
important to identify the common issues and must have a common definition to their problem. If the parties
do not have a common understanding in identifying their issue then it is difficult to start the negotiation process.

Also, the parties must be ready to solve their problems and issues via negotiation. A common consensus between
the parties is very important in the preparation stage. In this stage the parties need to determine their goals and
anticipate what they want to achieve through this negotiation. Preparation is instrumental to the success of
the negotiation process. Being well-prepared generates confidence and gives an edge to the negotiator.
Preparation involves the following activities:

Analyze the points given in notes

1. Framing the problem
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 2. Prepare a Negotiation Agenda
3. Prepare a negotiation procedure
4. Prioratize the parties goals
5. Sequencing the issues
6. Defining the specific targets
7. Packaging issues
8. Developing the supporting facts
9. Assessing the parties in needs

II. Stage 2: Opening Phase – This phase involves both sides presenting their initial positions to one another. Here
the two sides come face to face. Each party tries to make an impression on the other side and influence their
thinking at the first opportunity. Psychologically, this phase is important because it sets the tone for the
negotiation to a large extent. It involves both negotiating parties presenting their cases to each other.

III. Stage 3: Bargaining Phase – This phase aims to narrow down the gap between the two initial positions and
persuade to other party to accept less than they expected since their case is weaker.
The bargaining phase involves coming closer to the objective you intended to achieve when you started the
negotiation. In this phase, the basic strategy is to convince the other side of the appropriateness of your demands
and then persuading the other party to concede to those demands. For this, one needs to be logical in one’s
approach and frame clearly-thought-out and planned arguments.

IV. IV. Stage 4: Closing Phase – This phase is the last phase in which whatever work was done towards the
process of negotiation will reflected and both parties will come to a conclusion and close the process with a
solution.

The closing phase of a negotiation represents the opportunity to capitalize on all of the work done in the earlier
phases. The research that has been done in the preparation phase, combined with all of the information that has
been gained is useful in the closing phase. It also involves the sealing of the agreement in which both parties
formalize the agreement in a written contract or letter of intent. Reviewing the negotiation is as important as the
negotiation process itself. It teaches lessons on how to achieve a better outcome. Therefore, one should take the
time to review each element and find out what went well and what needs to be improved.

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5. What are the qualities of a negotiator? (Only for short note 5 or 3 marks)
Answer:
a. He must have the ability to prepare and plan the negotiation is a systematic way.
b. He must set objectives and assess them constantly.
c. He must research and collect details of the issue of the dispute and matters relating to the negotiation.
d. He must be able to devise appropriate concessions and ideas for negotiation.
e. He must be able to perform under pressure.
f. He must be sensitive to both the opposite party’s needs.
g. He must have good communication skills.
h. He must have total control of the matter.
i. He must know his subject intimately.
j. He must be confident and must create confidence in the parties too.
k. He must have good positive facial expressions, body language.
l. He must gain knowledge through information, data and research on the dispute matter.
m. He must be able to generate cooperation and confidence of the other party.
n. He must have clarity and consistency of the dispute matter.
o. He must be able to reach a compromise through his flexible approach.
p. He must not be rigid in his ideas and approach.
q. He should not start with high opening demands.
r. He must not threaten, or put pressure on the other party.
s. He must not exaggerate the facts.
t. He must be competitive as well as a problem solver.

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 u. He must build bridges between the parties and try to reconcile the matter if the parties are not in talking
terms.
v. He must try to develop a positive attitude towards both parties.
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6. Explain “Power to Negotiate”
Answer:

Negotiation is a process of communication in which the parties aim to “send a message” to the other side and influence
each other. Thus, the power of negotiation lies in the ability to favorably affect someone else’s decision. The essence
of negotiating power is the ability to exert influence on the other party.

Negotiation power can be defined as "the ability of the negotiator to influence the behaviour of another.
Commentators have observed a variety of aspects and qualities of negotiation power.

It is important for the mediator to take note of these various aspects and qualities of negotiating power as a means of
assisting each negotiating party to be at his or her best in representing his or her interests in mediation. Here are a
number of aspects and qualities of negotiating power that have been identified:

a) Negotiating power is relative between the parties;

b) Negotiating power changes over time;
c) Negotiating power is always limited;
d) Negotiating power can be either real or apparent;
e) The exercise of negotiation power has both benefits and costs;
f) Negotiating power relates to the ability to punish or benefit;
g) Negotiating power is enhanced by legal support, personal knowledge, skill, resources and hard work;
h) Negotiating power is increased by the ability to endure uncertainty and by commitment;
i) Negotiating power is enhanced by a good negotiating relationship;

FACTORS AFFECTING THE POWER TO NEGOTIATE

1. A strong BATNA. Your Best Alternative To a Negotiated Agreement, or BATNA, is often your best source
of bargaining power.

By cultivating a strong outside alternative, you gain the power you need to walk away from an unattractive
deal.

For example, Mr. Mishra is a home buyer and wants to purchase a house in Tilak Nagar for 1 crore. The
seller of the house is quoting amount of Rs. 1.5 Crore. Here, Mr. Mishra could improve his power in a
negotiation with a seller of the house by finding another house he likes just as much in Shastri Nagar for a
cheaper rate of Rs. 90 Lakhs.

Roger Fisher and William Ury coined the term BATNA (Best Alternative To Negotiated Agreement).
Making one’s BATNA strong as possible and then making that BATNA known to one’s opponent can
strengthen one’s negotiating position A skilled negotiator who knows about the people and interests involved
as well as the relevant facts is better able to influence the decisions of others.

Having a good alternative to negotiations contributes a substantially to a negotiators power

2. WATNA : Worst Alternative to Negotiated Agreement

The Negotiat0rs must be able to indemnify .WATNA so that they can be their limits during Negotiation.

3. ZOPA – Zone of possible Agreement

Zone of agreement exists if there is an agreement between both the parties where it will benefit both the parties

ZOPA is a critical to understand as it plays an important role for a successful Negotiations

The parties if they identify their ZOPA they will be heading at successful Negotiation
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2. Role power. Power can come from a strong role, title, or position, such as a high rank in an organization.
When negotiating with your boss, for instance, you sometimes may need to surrender to his likings because
of his high status. Mr. Nishant is working in a Telcom company. His boss Mr. Kiran wants to buy a car from
him. Here, the boss is having an advantage of power in the negotiation process.

3. Psychological power. Negotiators can bring a sense of psychological power to the table—the feeling that
they’re powerful, whether or not that’s objectively the case. Simply thinking about a time in your life when
you had power can bolster your confidence and improve your outcomes.

4. The ability to listen, to empathize and to communicate clearly and effectively are crucial in negotiating
effective agreements.
5. Having awareness of various negotiating styles and cultural differences can be a huge asset.
6. A good working relationship, trust, ability to communicate effectively and easily, understanding the point
of view of other party
7. Good Communication - Facts and ideas should be communicated in a proper way so that it leads to
effective persuasion. Content of the message, structure of the message and delivery style must be given
importance. Offer, proposals should be communicated. Giving proposition so attractive that it leads to a YES
from the other party and reduces tension and leads to agreement. Negotiators should try to make their
message consistent with their opponents’ value. Standard legitimate proposals should be made so that they
meet joint standards.
8. Principles of fairness and expert opinions should be considered. Plan of action and code of conduct must be
conveyed to the other party
9. Good Solutions -One final way to influence the other side is to invent a good solution to problem.
Brainstorming can be used to help generate such solutions in advance and increase the chances of
negotiations to reach a favorable solution.

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