NEGOTIATION
An indispensable
step in any Alternative Dispute Resolution (ADR) process is negotiation. It is
a fundamental key to all consensual Alternative Dispute Resolution (ADR)
activities and, in fact, the most satisfactory method of settling disputes.
The ability to
negotiate is inherent, that is, it is an art which is learnt from the earliest
stage. Usually, negotiation consists of a quid
pro quo of a sort, that is, giving up something in order to get something
in return.
It involves
discussions or dealings about a matter, with a view to reconciling differences
and establishing areas of agreement, settlement or compromise that would be
mutually beneficial to the parties or that would satisfy the aspiration of each
party to the negotiation. Compromise here implies flexibility on both sides and
flexibility derives from a genuine desire on the part of the parties to reach
an agreement.
Each adult
person would at one time or the other have consciously negotiated one agreement
or the other, personal and financial and we might all have developed our own
individual approach in trying to persuade others to give what we want, which is
what negotiation is all about.
NEGOTIATION APPROACHES
There are
various approaches to negotiation, its procedure and technique vary with each
negotiation, depending on the nature of the issues being negotiated, the
parties to the negotiation together with their skill, knowledge and experience.
The nature and
personality of the negotiator is at once also relevant. A negotiator may be a
tough and aggressive hard bargainer who may by nature is always reluctant to
concede; he may be a person who would always want to heckle or threaten his
opponent, that is, negotiating by browbeating; or he may be the opposite, that
is, one who would implicitly adopt a pleading manner or cajole his opponent to
submission.
There are no
formal institutions as such where negotiation skills are learnt other than in
continuing education forums like seminars. However, negotiating capacity and
ability is enhanced by a thorough knowledge of its theories and intricacies.
PROCEDURE FOR NEGOTIATION
There are three
(3) distinct steps in every negotiation. These are –
Step 1 – This involves the definition
of the problem, the clarification of objectives, finding out exactly what the
other side wants, that is, trying to assess the underlying needs or preferences
of the other party to enable you develop a strategy to meet.
Step 2 – It is necessary at this step
to have a brief but working knowledge of the habits, antecedents and
inclinations of the other party to the negotiation. This information will help
you tailor your strategy to meet his need.
Step 3 –This is the agreement stage. It is where compromises are made and a
mutually satisfactory conclusion is reached. Surprisingly, in civil law systems,
unlike in common law jurisdictions, there is an overriding principle of good
faith in contract negotiation and performance.
IMPORTANCE OF NEGOTIATION
Negotiation requires participants to identify issues about
which they differ, educate each other about their needs and interests, generate
possible settlement options and bargain over the terms of the final agreement.
Successful negotiations generally result in some kind of exchange or promise
being made by the negotiators to each other. The exchange may be tangible (such
as money, a commitment of time or a particular behavior) or intangible (such as
an agreement to change an attitude or expectation, or make an apology).
TYPES
OF NEGOTIATIONS
Negotiation may involve settlement of disputes, or domestic transactions such as banking, commercial or property
transaction. It may also involve international
transaction such as crude oil and agricultural exports, imports of industrial
goods and technologies.
Whatever the type of negotiation, a legal practitioner must prepare for negotiation. Negotiation must not
be seen as an easy option to litigation. The practitioner must prepare for
negotiation in the same way he or she must prepare for litigation. To prepare
for negotiation the facts of the matter must be ascertained and the objective
which the client intends to achieve must be ascertained. The law applicable to
the matter must also be a negotiated agreement.
The Best Alternative to Negotiated
Agreement (BATNA) and Worst Alternative to Negotiated Agreement (WATNA) on the
matter must be considered before deciding whether the matter is best resolved
by negotiation or other means.
NEGOTIATING STRATEGIES STYLES AND TACTICS
Negotiating strategies are the methods
which a negotiator uses to achieve his or her real objective in order to reach
an agreement on the matter under negotiation. There are two types of
negotiating strategies:-
(a) Competitive or
Positional (otherwise known as win/lose)
(b) Co-operative or
Problem-solving (otherwise known as win/win)
Negotiators also have distinctive
negotiating styles. Each negotiator's style is influenced by his individual
personality, the strategy he intends to adopt and his objective. Negotiating
styles have been classified into three: Soft, Hard and Firm.
Negotiators also use tactics, to achieve
their objective. Many tactics are used by negotiators and there are as many
tactics as there are negotiators. The commonly used tactics includes – control of agenda; contextual manipulation; overwhelming
numerical strength; puffs; threats; take it or leave it; piecemeal; package;
nibble; limited authority; lack of authority; behavioral; and psychological
tactics.
STAGES
OF NEGOTIATION
Negotiation
is a process that goes through several stages. Writers
have identified different stages through which a negotiation must pass. The
stages of negotiation identified varies from three to eight. The number of
stages through which a negotiation is processed is divided, . though important,
is a matter of individual classification preference. More important is what
takes place during the negotiation process.
As negotiation is a process, it passes
from one stage to another, and may or may not lead to an agreement. In analyzing the negotiation
process, four stages are identified:
(a) Opening;
(b) Bargaining;
(c) Closing; and
(d) Execution.
PREPARING
AND PLANNING FOR NEGOTIATION
The
following should be put into consideration when planning and preparing for
negotiation –
1. It
is advisable to first and foremost, understand the facts and issues involved.
2. Then
you are to decide what is least and the most you can expect during negotiation.
3. You
should know what is not negotiable in order to avoid irrelevant matters.
4. Know
what the other side cares about.
5. Finally,
know what is in both interest so that both parties will be satisfied (or almost
satisfied) at the end.
CONDUCTING
NEGOTIATION
This
has to do with the following –
1. Try
to build a good relationship with the other party.
2. Be
friendly and cordial throughout.
3. Always
speak about what you would like (e.g I think, I feel, I suggest, etc).
4. Find
out what the other party will like.
5. Brainstorm
on solutions or options to solve the problem.
6. Do
not make unfair or unrealistic demands.
7. Do
not become abusive, over emotional or threatening.
8. Try
and offer to give something away in exchange for something else from the other
party.
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