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Published : July 07, 2010 | Author : ranganathvg@legalserviceindia.com
Category : Company Law | Total Views : 13629 | Rating :

V.G.Ranganath, working as Faculty of Law, IFHE University, Hyderabad.

Negotiation-Mode Of Alternative Dispute Resolution (ADR)

Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough”. Abraham Lincoln

Alternative dispute resolution (ADR) (also known as External Dispute Resolution in some countries, such as Australia) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. In this world, disputes are inevitable and exist in different manners viz., family disputes, commercial disputes, national dispute, international disputes, industrial disputes etc. To resolve all these disputes, Courts are one of the forum. But the Courts are already overburdened with mounting arrears of cases. The best amicable method in ADR are Arbitration, Conciliation, Mediation and Negotiation.

“If two friends ask you to judge a dispute, don't accept, because you will lose one friend; on the other hand, if two strangers come with the same request, accept because you will gain one friend”.[1]

But 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. The word "negotiation" is from the Latin expression, "negotiatus", past participle of negotiare which means "to carry on business". "Negotium" means literally "not leisure". Negotiation is a process that has no fixed rules but follows a predictable pattern. 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. 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 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. It is the primary method of alternative dispute resolution. It is very much like a sporting event of two contesting wills, complete with advance game plans, strategic ploys, and bursts of brilliant open-field running. Unlike most contents, though, a negotiation doesn’t have to end up with a winner and loser. At the end there may not even be a score to tally. A well-conducted negotiation may allow both sides to win by expanding the total pot, making the sum for both sides greater than either could possess alone. In the language of academics this is called “synergy”. Basically the Advocate whenever participates by hearing the brief patiently and negotiating with the client and required opponent parties, it reflects an impression in the mind of client or party. In future, despite of the Advocate efforts if the case is in the favour of other party, there are very less chances to Advocate the loser may not lose the Advocate. The reason is earlier the concept of ‘Negotiation’. To become a successful negotiator, it needs a refining of several decades of practical experience and presentations. The person who tastes the success always is a successful negotiator. In the advocacy approach, a skilled negotiator usually serves as advocate for one party to the negotiation and attempts to obtain the most favorable outcomes possible for that party. In this process the negotiator attempts to determine the minimum outcome(s) the other party is (or parties are) willing to accept, then adjusts their demands accordingly. A "successful" negotiation in the advocacy approach is when the negotiator is able to obtain all or most of the outcomes their party desires, but without driving the other party to permanently break off negotiations, unless the best alternative to a negotiated agreement (BATNA) is acceptable.

Traditional negotiating is sometimes called win-lose because of the assumption of a fixed "pie", that one person's gain results in another person's loss. This is only true, however, if only a single issue needs to be resolved, such as a price in a simple sales negotiation. This is nearly always the case, although often how they go about getting what they want is so delicate it isn’t readily obvious. The negotiators were in different attitudes as follows:

1. one may be meticulously polite.
2. one may be dull and to the point.
3. one may seem to have been born negotiators.
4. one may be have had to learn to be comfortable in the tug-and-pull of a conflict resolution.

The important capsule to be successful negotiator is to refuse to be intimidated. Even the odds are most unlikely, few situations in life are rigidly fixed. Voicing a demand can’t insure success, but failure to make a request guarantees it won’t be realized. The golden rule to keep in mind, the mantra upon which to silently meditate as you enter into negotiation, is “Ask and you shall receive”.

Whenever we need the cooperation of another person to do something, however small, we have to engross in a negotiation. Almost everything we do-from deciding with a friend where to go to lunch to buying a new car to interviewing for a job- involves negotiating. The media portray negotiations as complicated, dramatic affairs involving powerful politicians or mighty business leaders or high-priced lawyers. But often negotiations involve ordinary folks who, if they felt less intimidated by the process, would find themselves considerably more empowered in their lives.

Indeed, the ten new rules for global negotiations advocated by Hernandez and Graham nicely coincide with an approach that comes naturally to the Japanese:

1. Accept only creative outcomes
2. Understand cultures, especially your own.
3. Don’t just adjust to cultural differences, exploit them.
4. Gather intelligence and reconnoiter the terrain.
5. Design the information flow and process of meetings.
6. Invest in personal relationships.
7. Persuade with questions. Seek information and understanding.
8. Make no concessions until the end.
9. Use techniques of creativity
10. Continue creativity after negotiations.

Negotiation is not a the supernatural practice. Nor is it sky rocket science requiring a Ph.D. Rather, it is a fundamental human act, the process that enables the trading of goods and services, favours and obligations. Negotiation is the protocol of exchange. If negotiation is going on all the time, most often it is practiced without conscious attention. Instead of encouraging us to pursue results we desire, our culture regards the act of bargaining itself as somehow unseemly. It depicts the process as one in which two people try to take advantage of each other. To identify our objectives and seek to obtain them strategically is thought to be manipulative. Negotiation to be successful needs strategy and don’t leave leave our negotiations to chance.

There are few social skills more useful than the ability to negotiate. To deny this is to deny one of the most fundamental human activities. From the stone age to the 21st Century, history has moved forward through exchanging, bartering, and buying and selling services and products.

During a negotiation, it would be wise not to take anything personally. If you leave personalities out of it, you will be able to see opportunities more objectively. Either we're going to solve this by realistic negotiation or there will be blood on the border. If you come to a negotiation table saying you have the final truth, that you know nothing but the truth and that is final, you will get nothing. Let us move from the era of confrontation to the era of negotiation. Negotiation in the classic diplomatic sense assumes parties more anxious to agree than to disagree. The most difficult thing in any negotiation, almost, is making sure that you strip it of the emotion and deal with the facts. And there was a considerable challenge to that here and understandably so. There's no road map on how to raise a family: it's always an enormous negotiation. Negotiation in the classic diplomatic sense assumes parties more anxious to agree than to disagree. Let us never negotiate out of fear. But, let us never fear to negotiate. The most difficult thing in any negotiation, almost, is making sure that you strip it of the emotion and deal with the facts. And there was a considerable challenge to that here and understandably so. The single biggest danger in negotiation is not failure but to be successful without knowing why you are successful. Flattery is the infantry of negotiation. Effective negotiators have a style that those whom they are trying to influence, relate to and admire. Negotiations are a euphemism for submission if the shadow of power is not cast across the bargaining table. The ‘Negotiation’ can be invoked at any time, even if the matter is pending in the Court of Law. Similarly it can be terminated at any time. Finally, the mode of ADR through Negotiation provides flexible procedure, strict procedure of law is not applicable. It is the option of the parties to decide their fate and Advocate can also negotiate with other parties for amicable settlement. Here negotiation is nothing but discussion to arrive to a settlement. This mode can be availed by parties themselves or on behalf of parties the Advocate can use the weapon of negotiation also.
[1]Saint Augustine quotes

Authors contact info - articles The  author can be reached at: ranganathvg@legalserviceindia.com

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