25.09.2023 Feature Article

Navigating Disputes With Skill:  The Role Of Negotiation In Alernative Dispute Resolution

Navigating Disputes With Skill: The Role Of Negotiation In Alernative Dispute Resolution
25.09.2023 LISTEN

Conflict, in its many forms, is an ever-present facet of human interaction. From the smallest disagreements between friends to the grand geopolitical disputes that shape the world.

Conflict refers to a disagreement or clash between two or more individuals or groups who have opposing interests, needs, values, or goals. Conflict can arise in various settings, including personal relationships, workplaces, communities, and international relations. Conflicts can have various repercussions, and their impact can be wide-ranging, depending on the nature, scale, and duration of the conflict, as well as how it is managed or resolved. Some of the repercussions includes;

  1. Emotional and Psychological Stress: Conflict can lead to stress, anxiety, anger, frustration, and other negative emotions for those involved. Prolonged or intense conflicts can have a significant toll on mental health.
  2. Deterioration of Relationships: Conflicts can strain relationships, causing distrust, resentment, and alienation between individuals or groups. If not managed effectively, conflicts can lead to the breakdown of relationships.
  3. Decreased Productivity: In a workplace or organizational context, conflicts can reduce productivity as employees or team members become preoccupied with the conflict rather than their tasks. It can also lead to absenteeism and turnover.
  4. Financial Costs: Conflict can result in financial losses, damage to property, or increased operational costs. For businesses and governments, conflicts can be costly in terms of resources and time.
  5. Physical Harm: In some cases, conflicts can escalate to physical violence, resulting in injuries or even loss of life. This is especially true in conflicts of a more severe nature, such as armed conflicts or domestic violence.

In the continually evolving landscape of resolving conflicts, negotiation remains a potent tool for achieving equilibrium and justice. As disagreements and disputes persist in human interactions, Alternative Dispute Resolution (ADR) has gained prominence as a flexible and increasingly preferred method for settling disputes outside the traditional courtroom.

At the core of ADR lies negotiation—an essential skill that has the potential to transform disputes into opportunities for collaboration and understanding. In this article, we delve into the realm of negotiation within the ADR framework, exploring its importance, tactics, and its profound influence on conflict resolution. Whether applied to business disputes, family issues, or even international clashes, negotiation serves as the linchpin of ADR processes, facilitating the resolution of intricate problems.

Join us on a journey to uncover the intricacies of negotiation within ADR, shedding light on its vital role in crafting peaceful and mutually satisfactory resolutions. It's a journey that bridges gaps between adversaries, fostering a more harmonious world.

What Is Alternative Dispute Resolution (A.D.R).

Black's Law Dictionary defines ADR as a process adopted to end a problem before taking legal action. When a resolution to a dispute is sought out of court, the processes of mediation, conciliation and arbitration, are alternatives to hardcore litigation.

Alternative Dispute Resolution (ADR) offers several advantages:

  1. It upholds the principle of privacy, allowing disputing parties to resolve their issues discreetly.
  2. It is a voluntary process, wherein the parties themselves contribute to and accept the proposed solutions, fostering a sense of ownership and consensus.
  3. It plays a crucial role in alleviating the congestion burdening our judicial system, as it provides an alternative avenue for dispute resolution
  4. It is cost-effective and time-efficient, making it an attractive choice for parties seeking efficient and economical means to resolve their conflicts.

Common ADR Processes Include;

  1. Negotiation.
  2. Mediation.
  3. Arbitration.
  4. Customary Arbitration. Etc.

What is Negotiation?
Negotiation is the first stage of conflict resolution involving direct communication between the parties or their representatives. This entails a continuous exchange of ideas and proposals between conflicting parties with the ultimate goal of resolving the existing dispute between themselves without a third party intervention. In essence, negotiation can be defined as the fundamental method of achieving one's objectives through a dialogue characterized by give-and-take, intending to reach an agreement.

Types or Categories of Negotiation.
Negotiations can be categorized in various ways based on different criteria. Here are some common categories of negotiation.

  1. The Transactional/ Deal Making Negotiation.

This involves negotiating the terms of a contract or business deal or some other relationship of a commercial nature. ie. Parties are negotiating the terms of their future relationship. Typically occurs in business, legal, or commercial settings where the primary objective is to complete a transaction or reach a specific outcome.

  1. Dispute-Resolution or Conflict Prevention Negotiation.

This involves negotiating to deal with a dispute that has arisen or preventing a potential dispute from occurring within ongoing relationships. This type of negotiation specifically aims to find a mutually acceptable solution to the disagreement, with the primary goal being the resolution of the dispute rather than the creation of a new transaction or agreement.

  1. Distributive Negotiation.

This type of negotiation exists where the parties believe that there are limited resources. In this type of negotiation, any gain by one party comes at the expense of the other party or parties. In distributive negotiation, the total value of what is being divided remains constant, and the goal is to claim as much of that value as possible for they seek their individual gain rather than look for mutual gain in the Negotiation Process.

  1. Integrative Negotiation.

Integrative negotiation, also known as collaborative or interest-based negotiation, is a type of negotiation in which parties work together to create value and reach mutually beneficial agreements. Unlike distributive negotiation, which focuses on a fixed or limited amount of resources, integrative negotiation seeks to expand the available resources and find creative solutions that satisfy the interests and needs of all parties involved. I.e. Parties see each other as having goals that are necessarily not at odds with each other.

Styles or Approaches to Negotiation.
Negotiation can involve various styles or approaches, each characterized by different tactics, strategies, and attitudes. The choice of negotiation style often depends on the nature of the negotiation, the parties involved, and the desired outcomes. Here are some common styles or approaches to negotiation.

  1. Competitive or Distributive Negotiation:
    • Characteristics: In this style, parties perceive the negotiation as a win-lose situation, with a fixed amount of resources to divide. They compete to claim the largest share of the pie.
    • Tactics: Parties take firm positions, make high demands, and engage in adversarial tactics to gain an advantage.
    • Examples: Salary negotiations, price negotiations, or bidding in competitive auctions.
  2. Collaborative or Integrative Negotiation:
    • Characteristics: This style emphasizes cooperation and mutual problem-solving. Parties work together to create value and seek win-win outcomes.
    • Tactics: Parties prioritize interests over positions, engage in active listening, and explore creative solutions.
    • Examples: Business partnerships, labor-management negotiations, or environmental agreements.
  3. Compromising Negotiation:
    • Characteristics: Compromisers seek middle-ground solutions, often splitting the difference between positions to reach an agreement.
    • Tactics: Parties are willing to make concessions on various issues to meet in the middle.
    • Examples: Dividing assets in a divorce settlement, settling differences within a team, or budget allocation.
  4. Accommodating or Yielding Negotiation:
    • Characteristics: This style involves one party giving in to the other's demands to preserve relationships or achieve a quick resolution.
    • Tactics: Parties may prioritize maintaining goodwill or harmony over their own interests.
    • Examples: Making concessions in minor disputes, accommodating a colleague's preferences, or defusing interpersonal conflicts.
  5. Avoiding Negotiation:
    • Characteristics: Avoiders choose not to engage in the negotiation process, often due to fear, indifference, or a belief that the issue is not worth addressing.
    • Tactics: Parties may withdraw from the negotiation, postpone it, or simply ignore the issue.
    • Examples: Ignoring minor disputes, delaying difficult conversations, or choosing not to negotiate with certain individuals.

Negotiation is like a vital thread that weaves together different interests and helps us reach agreements. It's an ancient practice that's still very relevant today, whether it's in business or resolving family issues. Negotiation is not just a process; it's a deeply human skill that requires listening and empathy. In a world with conflicts and differences, negotiation is a way to find common ground and work together. It reminds us that our shared humanity can lead to solutions that benefit everyone.

When negotiation fails, one can proceed to explore further mechanisms with third party intervention still under Alternative Dispute Resolution.

1.“Getting to Yes: Negotiating Agreement Without Giving In”. Authors; Fisher Roger, William Ury and Bruce Patton (2011).

Margaret Tanne, Associate Lawyer, HERALD LAW.