Mediation and Negotiation

Negotiation

Definition:

Confer in order to reach an agreement.

-Illustrated Oxford Dictionary, 2007

To discuss a matter with a view to settlement or compromise.

-Shorter Oxford Dictionary, 1977

 

The main styles of negotiation

i) Competitive

ii) Co-operative

iii) Problem solving

 

Competitive style

It is also called adversarial or zero sum style. The court room litigation model dominates in this version of negotiation, where zero sum is defined as a situation where the total winnings for one party minus the total losses for the other party equal zero: thus what one party gains another must lose in a situation where resources are essentially limited and must be divided between parties.

The competitive negotiator makes concessions reluctantly because they may ‘weaken his position’ through position loss or image loss. He tends to make high initial demands, few concessions and have a generally high level of aspiration for his client.

The competitive strategies have a number of limitations. They may force parties into defensive positions, thus inhibiting the development of new or creative solutions. The competitive style can also lead to serious disadvantages for the competitive negotiator and his client, if the other side responds in kind to this strategy, fails to implement the decision finally agreed upon, or feels resentful towards the opposing negotiator in future negotiations.

Other dangers of this approach include the possibility that in repeated encounters it will be increasingly unsuccessful, yielding a greater number of cases which will eventually go to trial.

 

The co-operative style

Where the competitive negotiator seeks to force the opposing party to a favourable settlement, by convincing his opponent that his case not as strong as he had previously thought, the co-operative style encourages a negotiator to make concessions, to build trust in the other party, and encourage him in turn to make further concessions. Each negotiator makes concessions in the anticipation that his opponent will reciprocate (give and receive mutually) and that the parties will then move to a compromise solution.

The strategies which are typically used include the making of concessions, the sharing of information and the adoption of behaviours which are fair and reasonable.

The advantages of the co-operative style of negotiation are that it tends to produce fewer breakdowns in bargaining with subsequent recourse of litigation, and to produce more favourable outcomes for both parties. This leaves both clients and negotiators in a position where they can ‘do business’ again.

 

The problem-solving (integrative) style

In 1981 Fisher and Ury published their seminal text ‘Getting to Yes: Agreement without giving in’ in which they advanced an alternative co-operative style called ‘principled negotiation’ which is claimed to be a universal, problem-solving approach that can used in any negotiation context. It is not a concession-based approach seeking to allocate a fixed quantity of resources; instead it seeks to maximise the parties’ potential for problem-solving, in order to increase the joint benefit and expand the quantity of resources.

The problem solving style aims to maximise the parties’ potential for problem-solving to increase the potential joint benefit for their clients. This style is usually  associated with a situation in which the parties’ interests are not directly opposed and where the parties invent a solution which satisfies both their interests.

 

Four basic tactics which Fisher and Ury describe as being essential to the process of problem-solving negotiation are:

  • Separate the people from the problem; in other words, separate the interpersonal relationship between the negotiators and/or their clients from the merits of the problem or conflict
  • Focus on interests not positions; that is, consider the interests of the clients so that each party’s motives, goals and values are fully understood by each side
  • Generate a variety of options; for example, brainstorm to develop new ideas to meet the needs of the parties
  • Insist that the result of the negotiation be based on some objective standard that is, assess proposed outcomes against easily ascertainable standard based on objective criteria.

 

Which style to adopt?

All three of these styles may be variously utilized by a skilled negotiator at different stages in the settlement of a particular dispute.

It would be misleading to assume that as a negotiator you can adopt a single style throughout the negotiation; in fact, as the discussions proceed you will find that you may need to change style, and hence tactics, to accommodate the changing situation. Research evidence suggests that it is possible for negotiators to switch from one style to another given sufficient encouragement or provocation. The choice of style should also take into account the impact that your choice may have on the other negotiator. If you chose to be reasonable and co-operative, then it may be that the other side will respond with the same style of negotiation; on the other hand if you choose to be aggressive then it is likely that you will be faced with a similar response.

 

What is an effective negotiation?

Factors which you may consider in determining the effectiveness of a negotiation:

  • The financial outcome for the client
  • The costs in time, money and general psychological wear and tear, on the client and/or the defendant in achieving the settlement
  • The number of issues left unresolved at the end of the negotiation
  • The potential stability of the agreement
  • The relationship between the parties at the end of the negotiation
  • The relationship between the negotiators at the end of the negotiation
  • The eventual recognition between the parties that litigation or some other method or dispute resolution is necessary after all.

 

Basic structure of a negotiation process

1. Agenda setting

2. Clarification of facts

3. Setting objectives and opening offers

4. Evaluation and re-positioning

5. Closing

6. Follow ups

7. Review

 

The style to choose depends on:

  • The analysis of the client
  • Own personal preferences
  • The preliminary or earlier contacts that have occurred between you and the other lawyer

 

 

Mediation

 

Is confidentiality important?

Confidentiality is central to mediation. It is imperative for parties to trust the process. Few mediations will succeed unless the parties can communicate fully and openly without fear of compromising their case before the courts. But how far should mediation confidentiality extend?

 

Mediator Confidentiality in the UK

Existing UK law provides a general right to confidentiality for statements made in the course of conciliation. However, this right, an extension of the “without prejudice” rule, is restricted to parties. A mediator may be compelled to give evidence before the court if the parties agree. Parties can attempt to extend confidentiality to the mediator by including a contractual provision in the mediation agreement. Such provisions may be upheld by UK courts.

While mediator confidentiality is said to be essential for mediation success, there are clearly legal and public policy reasons for restricting its ambit. Where should the line be drawn?

One approach is to distinguish between mediation communications - which generally should remain confidential - and the conduct of parties, which is more suited to court scrutiny.

 

Mediator Confidentiality in Bangladesh

The mediator shall, without violating the confidentiality of the parties to the mediation proceeding, submit through the pleaders, to the Court of a report of result of the mediation proceedings; and if the result is of compromise of the dispute in the suit, the terms of such compromise shall be reduced into writing in the form of an agreement, bearing signatures of the pleaders and the mediator as witnesses; and the court shall, thereupon, pass an order or a decree in accordance with relevant provisions of Order XXIII of CPC.

The proceedings of mediation under this section shall be confidential and any communication made, evidence adduced, admission, statement or comment made and conversation held between the parties, their pleaders, representatives and the mediator, shall be deemed privileged and shall not be referred to and admissible in evidence in any subsequent hearing of the same suit or any other proceeding.

 

 

Is relative cost important?

In the majority of conflicts, many of which are not litigated, there is a broader context that mediation can reach. Adversaries who refuse to try mediation will miss that broader context and often pay heavily for a judgment that does not resolve the real conflict and which provides a solution that costs more than it awards.

Costs can vary significantly from one legal firm to another. High conflict cases can run into many thousands of pounds. Mediation can reduce conflict, avoid the delays, economic costs and uncertainties associated with trial and therefore reduce court and legal costs.

 

 

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