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Table of Contents

NEGOTATION[1]

Question Bank

Q.1.What are the styles and phases of negotiation as a process of alternative dispute resolution?

Q.2. Discuss the meaning, essentials and significance of Negotiation.

Short Notes

Qualities of negotiator.

Table of Contents

Meaning of Negotiation- 49
Characteristics of negotiation:- 50
Voluntary:- 50
Two or more parties:- 50
No adjudication:- 50
Informal process:- 50
Confidentiality:- 50
Flexible:- 50

III. Advantages of negotiation:- 50

Most flexible:- 50
Great chance of possible outcome:- 51
Voluntary process:- 51
No need of third neutral party:- 51
Maintains relationship:- 51
Less expensive and not time consuming:- 51
Disadvantages of negotiation:- 51
Unequal status of parties:- 51
The situation of impasse:- 51
Absence of neutral third party:- 51
Relations may strain:- 51
No compulsion to continue negotiation:- 52
Negotiation is not applicable in all cases:- 52
No legal framework:- 52
Styles of negotiation:- 52
Competitive:- 52
Collaborative:- 52
Compromise:- 53
Avoid:- 53
Accommodate:- 53
Stages of negotiation:- 53
Preparation:- 53
Opening:- 53
Bargaining:- 53
Closing:- 53

I. Meaning of Negotiation-

The word ‘negotiation’ is derived from a Latin term ‘Negotiari” means “to carry on business”.

‘Negotiation’ is a form of direct or indirect communication, whereby the parties having opposite interests discuss the form of any joint action which they might take to manage and ultimately resolve the dispute between them[2].

It is a way whereby parties come together and try to resolve their dispute by means of mutual understanding and negotiations.

It may be used to resolve present or future dispute of all nature. The disputing parties even have a choice to appoint a negotiator. Such negotiator may help parties to arrive at common understanding. The parties to the dispute should keep their focus on care of the dispute resolution through negotiations among themselves.

In India, negotiation as a means sole alternate dispute resolution has no statutory recognition. Civil Procedure Code or Legal Services Authorities Act, does not mention negotiation alone as an alternate dispute resolution means. However, it is used with other means of alternate dispute resolution.

II. Characteristics of negotiation[3]:-

Following are some of the main characteristics of negotiation-

1. Voluntary:-

Negotiation is voluntary. Neither party to the negotiation is forced or compelled to negotiate. The parties are free to either accept or reject the outcome of negotiation. Any party can withdraw at any time during the negotiation. The parties are at liberty either to negotiate themselves personally or they may negotiate through any negotiator.

2. Two or more parties:-

Negotiation may involve two or more number of parties.

3. No adjudication:-

Negotiation is the non-judicial process. No third party involves in the process. Outcome of the negotiation is neither judgment nor award of a third party, but settlement between themselves.

4. Informal process:-

So many rules are not prescribed in negotiation. The parties are at liberty to adopt whatever rules they may choose to arrive at conclusion.

5. Confidentiality:-

The negotiation proceeding is confidential. The proceeding can only be revealed by the consent of the parties.

6. Flexible:-

The process of negotiation is flexible. The parties themselves can decide the rules of proceeding.

III. Advantages of negotiation:-

The ‘negotiation’ has following advantages-

1. Most flexible:-

Negotiation is most flexible form of alternate dispute resolution. The parties are at liberty to set the negotiation in accordance with their needs. They can set the agenda, select negotiators as per their convenience.

2. Great chance of possible outcome:-

Due to its flexible process and friendly form of negotiation, there are great chances of success.

3. Voluntary process:-

Negotiation is a voluntary process and since there is absence of any compulsion, the parties can freely participate in the process.

4. No need of third neutral party:-

In negotiation there is no need of neutral third party. In highly sensitive matters negotiation by parties themselves is very useful means of dispute resolution, so to prevent sensitive information to be passed to outsiders.

5. Maintains relationship:-

Amicable dispute resolution through negotiation, maintains or improves relationship between the parties.

6. Less expensive and not time consuming:-

Opting for dispute resolution through negotiation causes less expenses and time consuming comparing to ordinary judicial proceeding.

IV. Disadvantages of negotiation:-

Negotiation has following disadvantages-

1. Unequal status of parties:-

Where the parties having unequal status and power, one party may dominate the consent of the other party. Thus, there is a chance of winning over justice by one party.

2. The situation of impasse[4]:-

The disagreement between the parties sometime may deadlock situation, where parties are reluctant to proceed further. The situation may lead to halting of the process, leading parties in a helpless situation to leave the negotiation.

3. Absence of neutral third party:-

Negotiation lacks help and expertise of neutral third party. In negotiation either parties negotiate themselves or through their negotiators, however there exist no neutral third party. Negotiation by the parties themselves may end being unsuccessful due to their ego problems.

4. Relations may strain:-

Failure of the parties to come to conclusion may lead to further strain their relations.

5. No compulsion to continue negotiation:-

There is no compulsion in negotiation. A party may quit negotiation at any time.

6. Negotiation is not applicable in all cases:-

Negotiation is not applicable in all cases. In the cases of non-compoundable matters, antisocial matters etc. negotiation is not advisable.

7. No legal framework:-

In India there is no legal framework for negotiation. No specific and comprehensive provisions exist for negotiation.

In fact, negotiation with other mode of dispute resolution like, arbitration, mediation, conciliation etc. is used under S. 89 of the C.P.C in India, instead of sole means of dispute resolution.

V. Styles of negotiation[5]:-

There are five different styles of negotiations, depending upon the way they are conducted. The styles of negotiation are strategies designated to get anticipated outcome. These styles comprise communication styles, language used, spiking behavior, gesture etc.

The selection of the style of negotiation by and large depend upon the nature and subject matter of the dispute. Each of these styles, has its own merits and demerits. We will discuss these styles as follows-

1. Competitive[6]:-

In this style of negotiation, negotiator stress more on gain to his party. He hardly give importance to other party. The interest of such negotiator is to gain more and more for his party. To get more, he adopt hostile approach towards opposite party. It follows the model “I win, you loss”.

2. Collaborative[7]:-

In his style of negotiation, negotiator cooperate and collaborate to achieve a common objective, in the best interest of all the parties. Reaching common object is important in this style. The style follows the model “I win, you win”. The stress is given more on mutual needs and their satisfaction.

3. Compromise[8]:-

This style follows the model “I win/lose some, you win/lose some”. To reach at an agreement, the negotiator often relinquish some terms in four of gaining others.

4. Avoid[9]:-

The style work on the model “I lose, you lose”. In this style, the negotiator talks in vague terms about the dispute, rather than talking directly on the issue itself. This style may cause rift in relationship between the parties[10].

The style is useful in trivial matters. It works in the situation where the investment of the time to resolve the dispute outweighs the outcome of the discussion[11].

5. Accommodate[12]:-

This style follows the model “I lose, you win”. In this style the negotiator focuses on preserving relationship and building a friendly rapport by sacrificing some of their interests in favour of the opposite party’s interests.

VI. Stages of negotiation[13]:-

The negotiation passes through following phases.

1. Preparation:-

This stage involves preparation for negotiation, to collect information on the matter.

2. Opening:-

In this stage both sides present their position and open the negotiation.

3. Bargaining:-

In this state parties actually negotiate.

4. Closing:-

This stage reflect the outcome of negotiation. Either, the dispute is settled or closed without settlement on the ground of non- proceeding further.

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[1] बातचीत [वाटाघाटी]

[2] ‘बातचीत’ प्रत्यक्ष या अप्रत्यक्ष संचार का एक रूप है, जिसके द्वारा विपरीत हितों वाले पक्ष, किसी भी संयुक्त कार्रवाई के रूप पर चर्चा करते हैं, जिसे वे प्रबंधित करने के लिए ले सकते हैं और अंततः उनके बीच विवाद को हल कर सकते हैं।

[3] बातचीत के लक्षण

[4] गतिरोध की स्थिति

[5] बातचीत के तरीके

[6] प्रतियोगी

[7] सहयोगी

[8] समझौता

[9] तालना

[10] यह शैली पार्टियों के बीच संबंधों में दरार पैदा कर सकती है।

[11] जहा समस्या को हल करणे के लिये समय का निवेश निर्यण के परिणाम से अधिक होता हैSA

[12] समायोजित करणा

[13] बातचीत के चरण