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Module 4

An Introduction to Negotiation
1. INTRODUCTION

Negotiation has been described as any mode of direct or indirect conversation wherein parties
who've opposing interests speak the shape of any joint motion which they might take to
manipulate and in the end resolve the dispute among them.1 Negotiations can be used to resolve
an already-existing dispute or to lay the groundwork for a destiny courting between or more
parties.

Goldberg, Sander, and Rogers in define negotiation as “communication for the purpose of
persuasion.” 2 It is a process wherein parties to a dispute talk possible results without delay
with each other. Parties exchange proposals and demands, make arguments, and keep the
discussion until a solution is reached, or a deadlock declared.

In negotiations there are three approaches to resolving the dispute, each with a different
orientation and focus – interest-based, rights-based, and power-based – and they can result in
different outcomes.3

1.1 INTEREST-BASED NEGOTIATION

This technique shifts the focus of the discussion to interests from position . Because there are
many pursuits underlying any position, a dialogue primarily based on interests opens up a range
of possibilities and innovative options, while positions very often cannot be reconciled and
may consequently result in a deadlock. The communication on interest should be transparent,
so as for the parties to reach at an agreement with a purpose to fulfil the needs and the interests
of the parties.

1 The Law Society of Upper Canada “Short Glossary of Dispute Resolution Terms” (Toronto: 1992) at 6
2 Dispute Resolution: Negotiation, Mediation, and Other Processes (1992)
3 https://www.un.org/waterforlifedecade/water_cooperation_2013/pdf/adr_background_paper.pdf

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A dispute among Israel and Egypt over the place of the border among the 2 countries inside
the Gulf of the Red Sea become settled in favor of Egypt by means of an global arbitration
panel, on September 29 1988. Israel needed to go back the metropolis of Taba, a hotel
metropolis near Eilat, to Egypt as a result of the arbitration.4

1.2 RIGHTS-BASED NEGOTIATION

When negotiations among parties fail, the events might also then try to inn to what they
contemplate to be their rights. This means an appeal to the court (local, national, or global) and
will result in a legal process wherein the law is the dominant feature.

1.3 POWER-BASED NEGOTIATION

Resorting to danger or maybe violence as a way of verbal exchange for the cause of persuasion
is called power-based negotiation.

However, a different approach may be opted by parties, subsequently there are some common
characteristics to negotiation.

2. CHARACTERISTICS OF NEGOTIATION

Negotiation is:

• Voluntary: No party is forced to take part in a negotiation. The parties are given a
choice to just accept or reject the outcome of negotiations and can withdraw at any point
in the course of the process. Parties may participate directly inside the negotiations or
they may select to be represented by way of a person else, consisting of a family
member, friend, a legal professional or other professional.
• Bilateral/Multilateral: Negotiations can contain, three or dozens of events. They can
range from individuals in search of to agree on the sale of a house to negotiations
concerning diplomats from dozens of States (e.g., World Trade Organization (WTO)).
• Non-adjudicative: Negotiation involves only the parties. The final results of a
negotiation are reached via the events collectively without recourse to a third-party
neutral.

4 Ibid

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 • Informal: There aren't any prescribed regulations in negotiation. The parties are free
to undertake whatever policies they pick, if any. Generally, they will agree on troubles
such as the subject matter, timing and area of negotiations. Further subjects inclusive
of confidentiality, the quantity of negotiating sessions the events dedicate to, and which
documents may be used, also can be addressed.
• Confidential: The parties have the option of negotiating publicly or privately. In the
authority’s context, negotiations would be problem to the criteria governing disclosure
of information.
• Flexible: The scope of a negotiation depends on the discretion of the parties. The events
can decide not only the subject or the topics in an effort to be the situation of the
negotiations, however also whether they will undertake a positional-primarily based
bargaining method or an interest-based totally technique. 5

3. ADVANTAGES

• In procedural terms, negotiation is probably the maximum flexible shape of dispute

resolution because it involves simplest those events with an interest within the count
number and their representatives, if any. The events are unfastened to shape the
negotiations in accordance with their personal desires, for example, putting the agenda,
choosing the forum (public or private) and identifying the participants. By ensuring that
each one those who have an interest within the dispute had been consulted regarding
their willingness to participate and that ok safeguards exist to prevent inequities in the
bargaining process (i.e., an imbalance in strength among the parties), the probabilities
of attaining an agreement that is fine with everyone is enhanced.
• Like any other method of dispute resolution, negotiation cannot assure that a party
might be successful. However, many commentators experience that negotiations have
a greater possibility of a successful final results when the parties adopt an interest-based
method instead of a positional-based approach. By focusing on their mutual interests
and needs and the use of mechanisms such as goal standards, there is a greater
probability of attaining an settlement that meets the wishes of the events. This is
sometimes called a “win-win” method.

5 https://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/03.html

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 • Negotiation is a voluntary process. No one is required to participate in negotiations
ought to they now not desire to do so.
• There is no need for recourse to a third-neutral party. This is important whilst none of
the party’s desires to involve out of doors events inside the process, e.g., the matter to
be mentioned or the dispute to be resolved may be incredibly sensitive in nature.
• Unlike the effects of positive adjudicative processes, e.g., the courts, the final results of
a negotiation simplest binds those parties who had been involved in the negotiation.
• Assuming that the events are negotiating in desirable faith, negotiation will provide the
events with the possibility to lay out an agreement which reflects their hobbies.
• Negotiations may maintain and, in some instances, even improve the connection
between the events as parties as an agreement has been reached among them.
• Opting for negotiation rather than litigation may be less expensive for the parties and
may lessen delays.

3.1 DISADVANTGES

• A negotiation may also have a successful outcome. However, parties may be of unequal
strata and the weaker party(s) may be placed at a disadvantage. Where a party with an
interest in the matter in dispute which is excluded or inadequately represented in the
negotiations, the agreement's price is diminished, thereby making it prone to challenge
in. In the absence of safeguards within the negotiation, the settlement could be
considered by a player or others who are not participating in the technique as being
inequitable, even though the substance of the settlement can be past reproach.
• A negotiation to be successful requires every party to have a clear information of its
negotiating mandate. If uncertainty exists concerning the bounds of a party's negotiating
authority, the party will not be able to participate efficiently in the bargaining system.
• The absence of a neutral third party can bring about parties being not able to reach
settlement as they may be incapable of defining the issues at stake, not to mention
making any progress toward a solution.
• The absence of a neutral third birthday party can also encourage one party to attempt to
take advantage of the other.
• No party can be compelled to hold the negotiation process. Anyone who chooses to
terminate negotiations may additionally do so at any time within the system, however

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 the time, effort and money which can have been invested by the opposite party or
parties.
• Some issues or questions are absolutely not amenable to negotiation. There will be
surely no possibility of an agreement in which the parties are divided with the aid of
opposing ideologies or beliefs which leave little or no room for mutual concessions and
there may be no willingness to make the sort of concessions.
• The negotiation process cannot assure the trustworthiness or good faith of any of the
parties.
• Negotiation may be used as a stalling tactic to save one party from another party from
affirming its rights (e.g., through litigation or arbitration).

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