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Negotiation Notes

BPTC Law Notes > Alternative Dispute Resolution Notes

This is an extract of our Negotiation document, which we sell as part of our Alternative Dispute Resolution Notes collection written by the top tier of City Law School students.

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Negotiation
Definition ? what is negotiation???Either between the parties direction, or through their legal representatives.
Non-adjudicative; parties themselves seek to reach an agreement settlement,
without recourse to a third-party neutral.
Is VOLUNTARY, (often) confidential, flexible

Advantages??????

Costs: much lower than litigation
Parties have Control of process:
o Control of costs

Control of outcome
Less stress
Speed/time

Speed of getting to point of resolution

Once within process, eg in negotiation can impose own timetable, in control of how long it might take..
Confidentiality/privacy (CF, litigation is public)
Maintaining business relations/long-term relationships , as ADR less confrontational.
Maintain reputation (keep the dispute private)
Flexibility:
o Procedural flexibility

Greater range of remedies,
o Flexibility in potential outcome, not black-and-white as in court.
Avoid litigation risk (court is all or nothing)
Variety of claims: can make submissions on any matters, not only restricted to points of law.
Simpler procedures and strict rules of evidence do not apply
Can have flexible solutions which go beyond the strict parameters of the original dispute (CF in court, jurisdiction only to make orders within confines of the issues raised by the statements of case).

Disadvantages
-Negotiation procedures agreed before a dispute arose may be inappropriate for resolving the actual dispute that arises.
-A party with a strong case may have to abandon their actual rights if the ADR
procedure is to achieve anything.
-Can be expensive and time-wasting if one party is not genuine in their participation.
-Sometimes unworkable if there are multiple parties.
-Enforcement of the amount determined is easier in litigation than ADR (other than arbitration).
-Certain remedies only a court can provide.
Trial risk ??An analysis of trial risk ? identify risks and price them. Can concede that a judge might likely rule something, without necessarily conceding that issue.
Advising the client to buy out the risk.
i.e. what should client concede to make the risk go away. Pricing a risk, advising client to buy the risk out of the process, by settling for less than they want to, but they then know the risk has gone because settlement has been achieved.
It doesn't so matter what did/didn't happen; as analysing what would likely be found to have happened at court/trial. Analyse from judge's point of view.

Negotiation styles (essentially manner of presentation)?

(1) cooperative

Friendly, courteous, conciliatory, seeking to gain trust.
(2) competitive/confrontational

Making demands, argumentative, emphatic language

Negotiation strategies (cooperative/collaborative/competitive) (overall plan for getting possible outcome?For purposes of syllabus, some understanding of:
(1) COOPERATIVE approach:
o joint enterprise, operating together to try and achieve purpose.
o Focus on reaching agreement that is fair & acceptable/reasonable to both sides.
o Concessions/offers from both sides and information is shared.
o Advantages of cooperative strategy:
-Good likelihood of reaching agreement (if an opponent responds cooperative).
-Appropriate concessions are seen as principled and not as a weakness.
-Can support a continuing relationship between the parties.
-Fewer risks of negotiation breaking down.
-Should reach settlement quickly.
o Weaknesses:
-Can be undermined by a competitive opponent;
-Can be easy to see settlement as the main goal, rather than meeting client's objectives.
-can lead to unnecessary concessions and weaker outcome for client;
-Could make unilateral or early concessions, which limit room to manoeuvre later on;
-May give info and get nothing in return;
-May fail to press the strengths of the case by trying to avoid confrontation.
(2) COMPETITIVE/POSITIONAL approach:
o Focus is on own position and on winning, getting possible outcome for client;

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