Negotiation is the foundational skill for all Alternative Dispute Resolution.
Negotiation is a consensual bargaining process in which the parties attempt to reach an agreement to a dispute (or to avoid a potential dispute). Negotiation involves direct contact between the disputants or their representatives. To be successful, the parties must be prepared to communicate and compromise.
The process is voluntary and non-binding. The parties maintain control of both the process and the outcome. Disputants are more likely to achieve their goals and needs through negotiation than they are through litigation. The goal of every negotiation is to make both sides feel as though they have won at least something (win-win).
Transactional negotiation involves the future; dispute negotiation involves resolving a conflict that has occurred in the past.
Distributive bargaining assumes a finite asset to divide and results in positional bargaining to secure the largest portion for yourself or for your client. By definition, this process is adversarial. Strategies are employed to gain advantage for one side. Concessions are made in order to reach a compromise. However, some tactics such as “hard ball” negotiations are sometimes employed to exploit the other side’s vulnerability or weakness. The threat of a strike in a labour dispute or “going public” with an embarrassing revelation are hard ball tactics, which may or may not force a settlement but are guaranteed to seriously harm the relationship.
Integrative bargaining occurs when the parties’ positions and goals are not necessarily at odds with each other. With multiple issues in play, mutual gains are possible. This type of bargaining involves interest based negotiations that focus on the needs and concerns, rather than the positions, of the parties. The orientation is towards win-win solutions and mutual gain.
The starting point in integrative bargaining is that of a mutual problem which necessitates a mutual solution. Integrative bargaining responds to the other party’s needs not their positions. Integrative strategies are the basis for both mediation and collaborative law. To be successful and solving the problem requires separating the problem from the party. To obtain a mutually beneficial settlement, the parties must be inventive and imaginative. Success is often premised on outside of the box thinking and possibilities.
With the rising cost and intolerable delays associated with litigation, parties are increasingly attempting to resolve matters on their own. This is encouraged. However, if the parties need assistance in focusing on the issues and concentrating on interests rather than positions, they may need to engage the services of a mediator or collaborative lawyers.
In matrimonial matters, even if parties successfully resolve all issues, it is highly advisable that both spouses seek Independent Legal Advice to confirm that they understand all of the ramifications of the deal they have agreed to. Also, a lawyer will normally be required to convert the informal agreement into a Minutes of Settlement and draft the necessary court documents. For a Matrimonial Property Settlement to be binding and enforceable, each party must obtain a Certificate of Independent Legal Advice.
Advantages of Direct Negotiation include saving cost, time and the relationship. Disadvantages include the lack of understanding of one’s rights could lead to a power imbalance and ultimately an unfair agreement. If one party has a better education or more experience in negotiating and bargaining, a power imbalance exists which could lead to a one-sided agreement.