Introduction
Alternative Disputes Resolution is defined as a method used for conflict settlement among
the parties by reaching an amenable settlement through discussions and negotiations.1 The
concept of ADR has been devised with an intent to provide an alternative to the conventional
methods of dispute settlement.2 Negotiation is one such mechanism of ADR. As stated by
Nelson Mandela, ‘Negotiation and discussion are the greatest weapons we have for
promoting peace and development’. Negotiation is a dispute where parties come together and
then try to resolve their disputes by means of mutual understanding and negotiations. The
disputing parties have the choice to appoint a negotiator or not. In case, a negotiator is
appointed, he has a very small role to play in getting the parties to a common understanding.
Negotiation is not governed by law. All the decisions regarding such negotiation, for
instance, the time, procedure and place where the negotiation will be conducted is totally up
to the discretion of the parties.
Indians are quite passionate about negotiation. From negotiating over disputes to negotiating
over responsibilities, one participates in this mechanism of Alternative Disputes Resolution in
one or the other way. The terms Negotiation and Bargaining are interchangeable. However,
the difference between these terms two lies in the fact that in bargaining one party ultimately
compromises by agreeing to the terms of other parties whereas in negotiation both parties
enjoy a win-win situation. The term ‘Negotiation’ has been derived from a Latin expression,
‘Negotiari’ which implies ‘to carry on business’. Negotiation can be defined as a bargaining
process done between two parties with the object of dispute settlement. The negotiating
parties should consult an advocate before entering into negotiations as then the party will be
fully aware of their rights. Also, professional expertise is required during the process of
negotiation so as to ensure that the disputing parties put their emotions aside.
The parties to the dispute must have their focus on the core of the dispute and thereby only
aim at its resolution. The parties involved in the dispute resolution try to reach a mutual
agreement by way of settlement. The parties certainly aim at reaching some sort of remedy by
cooperating and collaborating among themselves on terms agreeable by both. 3 Negotiation is
one of the most commonly used forms of alternative dispute resolution as it is preferred in
1
Alternative Dispute Resolution (March 31, 2020) https://byjus.com/free-ias-prep/alternative-dispute-resolution
2
GKTODAY, Alternative Dispute Resolution (ADR) in India (May 10, 2017)
https://www.gktoday.in/gk/alternative-dispute-resolution/
3
Alternative Dispute Resolution: Negotiation, LawShelf (March 31, 2020)
https://lawshelf.com/shortvideoscontentview/alternative-dispute-resolution-methods-negotiation
non-profit organizations, businesses, government organizations, and legal proceedings for
instance in matters of , adoption, etc.4
Following are some of the characteristics of Negotiation:
Two or more parties
Negotiation contributes to better results
Conflicts between needs and desires
Equalizing process
It contributes to attaining mutual satisfaction or agreement.
Unlike other mechanisms of Alternative Dispute Resolution, negotiations are concluded
without the involvement of the third party and only through discussions between parties and
their representatives. Thus, Negotiation is a non-binding process. The parties should consult a
lawyer before entering into negotiations as they would get a brief description of their rights
and responsibilities concerning the matter they are involved in.5
There is a minimum requirement of two parties to proceed for negotiation. The negotiating
parties are struck between the fulfillment of their needs and desires. Although such parties
have their pre-determined goals fixed, which they wish to achieve, still clashes arise during
negotiation. Apart from the above-mentioned characteristics of negotiation, the parties
undergoing this process are also willing to adjust themselves by being in a compromising
position.6
A popular legal maxim, “Consiliaomniaverbispriusexperiri, quam armissapientemdecet”
which means that an intelligent man would prefer negotiation before using arms, rightfully
justifies the purpose behind using negotiation.7
This process helps the conflicting parties by suggesting them better results and also aid them
in concluding a mutual agreement and settlement. Overall, it is an equalization process
whereby a solution is offered keeping in mind the interests of both parties. It is only when the
parties at dispute doesn’t consider themselves to be capable enough of resolving the dispute
by themselves or by the consultation of independent individual, they might choose another
popular mechanism of alternative dispute resolution, namely, Mediation.
4
Drishti, Alternative Dispute Resolution (ADR) Mechanims, () https://www.drishtiias.com/to-the-
points/Paper2/alternative-dispute-resolution-adr-mechanisms-paper-2
5
CLG, Negotiation, Mediation and Arbitration (October 14, 2018) https://clg.ab.ca/programs-services/dial-a-
law/negotiation-mediation-and-arbitration/
6
MANAGEMENT STUDY HQ, Characteristics of Negotiation (March 24, 2020)
https://www.managementstudyhq.com/characteristics-and-steps-of-negotiation-process.html
7
SarojMurmu, Negotiation: Meaning, Scope, Advantage & Disadvantage, Legal Bites (July 15, 2019)
https://www.legalbites.in/negotiation-meaning-scope-adv-dis/
Steps of Negotiation Process
The five steps to the negotiation process are:
1. Preparing and Planning
The primary step is the preparation and planning where the parties govern their goals
for the negotiation. Each party must decide the “best alternative to a negotiated
agreement (BATNA)” and “worst alternative to a negotiated agreement (WATNA)”.
These two signify the extreme possibilities of the situation. The better the BATNA is,
the greater will be the negotiating capacity as a suitable alternative eliminates the
chances of an unsuccessful negotiation. Determining the WATNA is equally
important as it shapes the worst-case scenario if the negotiation process does not
work. It includes risks and costs.
2. Defining ground rules
The second step includes defining the ground rules that relate to the procedural
necessities for the negotiation. The duration of the process, venue of the proceedings
and their initiation are agreed upon in this particular step.
3. Clarification and justification
In the third step, parties will clear up and resolve any misunderstanding about the
situation. This step is an opportunity for informing and updating the other party on the
issues in the dispute. Both the disputants shed light on their demands to ensure that
the negotiation is properly done.
4. Bargaining and problem solving
The fourth step is bargaining and problem-solving. Bargaining and problem solving is
the spirit of negotiation as it is where the parties may take part or cooperate as they
each pursue to fulfill their interests. There is no single approach for a negotiation
style. Diverse bargaining styles and tactics are adopted depending upon the situation.
The negotiator who engages in a competitive bargaining style is exclusively
concerned with attaining his individual goals without bearing in mind the impact on
either party. The competitive negotiator forces the opposing party to a settlement that
is favorable to the negotiator, and he aims to win as much as possible.
The negotiator who engages in a cooperative bargaining style identifies the interests
of the parties and seeks for choices and resolutions that will satisfy both the sides.
Cooperative negotiators make effort to settle conflicts so that everyone benefits and
focuses on utilizing problem-solving methods to create value for both sides. Such
negotiators stress on creativity, empowerment, and control by the parties.
5. Closure and implementation
The last step is the validation of an agreement that has been worked out and elucidates
how the parties will supervise each other’s actions to ensure that the negotiated
agreement is carried out.8
Sources of Negotiation
1. Having a Strong Alternative
If you have a strong alternative going into a negotiation, then you have significant power and
leverage in your negotiation. In negotiation terms, our best alternative is called the BATNA
(Best Alternative to a Negotiated Agreement.)
In fact, there is probably no bigger source of power and leverage than having a great
alternative. opportunity to go after, if the current deal falls apart.
For example, if you need IT services and you have several qualified vendors to choose from,
this gives you tremendous power over the other party. They will likely make concessions
more readily to get your business.
2. Know the BATNA of the Other Side
You must determine the other side’s BATNA for the solution you are offering. Take the time
to determine what the other party will do, if the deal with them falls apart. If they don’t have
a great alternative, then they have a weak power position. If they have a great alternative,
then they have a strong power position.
Knowing their level of power can completely change the way you approach the negotiation.
8
Alternative Dispute Resolution: Negotiation, LawShelf (March 31, 2020)
https://lawshelf.com/shortvideoscontentview/alternative-dispute-resolution-methods-negotiation
3. Have Something the Other Side Needs
Always remember that if you are in a negotiation, it’s because the other side sees value in
what you are offering. In other words, you have something they need or want.
Understanding what the other side wants can give you significant power.
So often we go into a negotiation assuming we have little or no power or leverage. Don’t
jump to that conclusion so quickly, and spend some time identifying why they would spend
the time to negotiate with you. What value do you bring that they need?
4. Uniqueness
If what you provide is unique and different from everyone else in the industry, then this gives
you tremendous leverage allowing you to call the shots on the terms of the agreement.
But whatever your uniqueness is, it must be in demand. If your company is the only one that
provides a certain product or service that is in demand, you can push harder for what you
want.
5. Position/Role/Title
If you hold a higher position, level, rank, or seniority over the other party, this can grant you
a level of authority over them.
However, for position power to be effective, you must have earned respect and legitimacy
from the other party. A fancy title doesn’t mean much if the other side doesn’t believe
you carry influence.
6. Expertise
There is extreme value in being an expert in something. You or your company are sought out
for the knowledge that you have, and that knowledge is power.
This knowledge could be the experience you have, ways you have figured out how to
navigate difficult situations, or your opinions on strategy and execution.
Perhaps you are highly regarded and considered indispensable and critical to success. This
power allows you to mandate certain deal elements without much push back from the other
party.
7. Coercive
This is the power that is derived through threats, punishments, sanctions, and other negative
consequences. For example, one party threatens to put the other party out of business or ruin
their reputation if they don’t agree to certain deal points.
This is an area that requires additional caution. If you use coercive power, it may jeopardize
your ability to do business with the other party in the future.
Remember good negotiations are stepping stones to future business and growth.
8. Psychological
If you present yourself as confident, assured, calm, knowledgeable, and prepared…whether
you are or not, the other side will read your approach and assume you have some edge in the
negotiation.
Amy Cuddy, a social psychologist, and professor at Harvard Business School states
that non-verbal displays can have a significant impact on the level of power the other
side will grant you.
.
She has proven that if you change your body language, you can change the way you
behave. And, the way you behave in a negotiation can determine your level of power.
Some of the body language techniques she recommends for increasing your power
and power behavior include spending some time in “power poses” prior to the
meeting…some of these are not appropriate at the negotiating table, but some clearly
are and you will need to decide which ones make sense.
These power poses include standing with your feet apart and hands on your hips
(Superman or Wonder Woman pose), standing at the end of a table and leaning on
your hands, , and spreading yourself out making yourself seem bigger and taking up
more space.
9. Referent
This kind of power comes from having other people that can provide a powerful reference to
you or your company’s abilities, ROI, trustworthiness, commitment, etc. This power is
derived by making personal connections with key and influential people, and having those
people speak on your behalf or support you in some way as you attempt to get your deal
accomplished.
Referent power allows you to persuade people to agree to deal elements they normally
wouldn’t because others are providing a testimonial about your ability to deliver.
10. Reward
Reward power is the ability to provide some incentive, compensation, or other forms of
remuneration to the other party.
For example, a manager can impact the salary or bonus for their employees. Therefore,
reward power can drive the other party to agree to deal elements more readily and willingly.
Other examples involve one party being able to open new markets, sell more products, buy
more goods and services, or provide some ROI that is material.9
Pros and Cons of Negotiation
There are numerous advantages to a negotiation process.
1. Negotiation is a party-based dispute resolution that only involves the stakeholders and no
additional third party which makes it a private affair.
2. Negotiations safeguard the freedom of the parties. The parties are free to set plans of their
choice which helps in the attainment of the purpose of the negotiation.
3. The consent of both parties is regarded. Also, it is made sure that there is no play of powers
and both parties are given equal footing to speak.
4. The negotiations have a possibility of a more successful result as it is eventually grounded
on the party’s interest and is completely run by the party’s consent to dissolve the dispute.
5. Negotiation is a voluntary process and there is no intrusion of any third party in the
proceedings which results in the protection of the confidential information.
Some of the disadvantages of the negotiation process are:
1. The parties may not always be equal in status and power, which leads to a situation where
the party in power uses the scope to dominate the other party’s consent. The consequence
may be an unfair agreement which acts as a big disadvantage to the process.
2. The disagreement between the parties occasionally leads to an impasse. An impasse is a
situation when the disputant parties come to a halt in their discussion and they are not ready
to proceed further. This happens when one of the parties is stubborn over its goals and no
middle ground is achieved.
3. The walkout situation occurs when an impasse frustrates the parties to such an extent that
no productive discussion can take place.
9
Strongest sources of negotiation –Lionshare negotiationhttps://www.lionsharenegotiations.com/
4. An ineffective negotiation results in unpleasantness between the parties. This leads to
strained relations.10
CONCLUSION
Negotiation is not always a harmful process. In fact, it has the capacity to be a remedial
process which helps the disputing parties to converse and reflect upon their differences and
settle their disagreements. The cooperative bargaining style can be adopted in the field of
negotiation so that the dispute can be resolved amicably. A skilled negotiator should be an
expert in varying between the distinct approaches to negotiation to accommodate the specific
issues that may arise during the process.11
Negotiation can be invoked by the parties at any time, even if the matter is pending in the
court. Likewise, it can be terminated at the discretion of the parties. It is the choice of the
parties to decide their fate and reach an amicable settlement.12
10
SarojMurmu, Negotiation: Meaning, Scope, Advantage & Disadvantage, Legal Bites (July 15, 2019)
https://www.legalbites.in/negotiation-meaning-scope-adv-dis/
11
Non-Adjudicatory Modes of ADR: Conciliation, Mediation and Negotiation, Shodhganga (March 31, 2020)
https://shodhganga.inflibnet.ac.in/bitstream/10603/41488/11/11_chapter%204.pdf
12
V.G.Ranganath, Negotiation-Mode Of Alternative Dispute Resolution, Legal Service India (September 20,
2019) http://www.legalservicesindia.com/article/245/Negotiation-Mode-Of-Alternative-Dispute-
Resolution.html
