Negotiation-Mode Of Alternative Dispute Resolution (ADR)

Discourage litigation. Persuade your neighbors to compromise whenever you can. As a

peacemaker the lawyer has superior opportunity of being a good man. There will still be
business
enough.
Abraham
Lincoln
Alternative dispute resolution (ADR) (also known as External Dispute Resolution in some
countries, such as Australia) includes dispute resolution processes and techniques that
act as a means for disagreeing parties to come to an agreement short of litigation.
Despite historic resistance to ADR by many popular parties and their advocates, ADR
has gained widespread acceptance among both the general public and the legal
profession in recent years. In fact, some courts now require some parties to resort to
ADR of some type, usually mediation, before permitting the parties' cases to be tried.
The rising popularity of ADR can be explained by the increasing caseload of traditional
courts, the perception that ADR imposes fewer costs than litigation, a preference for
confidentiality, and the desire of some parties to have greater control over the selection
of the individual or individuals who will decide their dispute. In this world, disputes are
inevitable and exist in different manners viz., family disputes, commercial disputes,
national dispute, international disputes, industrial disputes etc. To resolve all these
disputes, Courts are one of the forum. But the Courts are already overburdened with
mounting arrears of cases. The best amicable method in ADR are Arbitration,
Conciliation,
Mediation
and
Negotiation.
If two friends ask you to judge a dispute, don't accept, because you will lose one friend;
on the other hand, if two strangers come with the same request, accept because you
will
gain
one
friend.[1]
But in India, Negotiation doesnt have any statutory recognition i.e through way of
legislation. Negotiation is self counseling between the parties to resolve their dispute.
The word "negotiation" is from the Latin expression, "negotiatus", past participle of
negotiare which means "to carry on business". "Negotium" means literally "not leisure".
Negotiation is a process that has no fixed rules but follows a predictable pattern.
Negotiation is the simplest means for redressal of disputes. In this mode the parties
begin their talk without interference of any third person. The aim of negotiation is the
settlement of disputes by exchange of views and issues concerning the parties. There is
an ample opportunity for presentation of case in this mode of redressal. If there is
understanding and element of patience between the parties this mode of redressal of
dispute is the simplest and most economical. Negotiation is a dialogue intended to
resolve disputes, to produce an agreement upon courses of action, to bargain for
individual or collective advantage, or to craft outcomes to satisfy various interests. It is
the primary method of alternative dispute resolution. It is very much like a sporting
event of two contesting wills, complete with advance game plans, strategic ploys, and
bursts of brilliant open-field running. Unlike most contents, though, a negotiation
doesnt have to end up with a winner and loser. At the end there may not even be a
score to tally. A well-conducted negotiation may allow both sides to win by expanding
the total pot, making the sum for both sides greater than either could possess alone. In
the language of academics this is called synergy. Basically the Advocate whenever
participates by hearing the brief patiently and negotiating with the client and required
opponent parties, it reflects an impression in the mind of client or party. In future,
despite of the Advocate efforts if the case is in the favour of other party, there are very
less chances to Advocate the loser may not lose the Advocate. The reason is earlier the
concept of Negotiation. To become a successful negotiator, it needs a refining of

several decades of practical experience and presentations. The person who tastes the
success always is a successful negotiator. In the advocacy approach, a skilled negotiator
usually serves as advocate for one party to the negotiation and attempts to obtain the
most favorable outcomes possible for that party. In this process the negotiator attempts
to determine the minimum outcome(s) the other party is (or parties are) willing to
accept, then adjusts their demands accordingly. A "successful" negotiation in the
advocacy approach is when the negotiator is able to obtain all or most of the outcomes
their party desires, but without driving the other party to permanently break off
negotiations, unless the best alternative to a negotiated agreement (BATNA) is
acceptable.
Traditional negotiating is sometimes called win-lose because of the assumption of a
fixed "pie", that one person's gain results in another person's loss. This is only true,
however, if only a single issue needs to be resolved, such as a price in a simple sales
negotiation. This is nearly always the case, although often how they go about getting
what they want is so delicate it isnt readily obvious. The negotiators were in different
attitudes
as
follows:
1.
one
may
be
meticulously
polite.
2.
one
may
be
dull
and
to
the
point.
3.
one
may
seem
to
have
been
born
negotiators.
4. one may be have had to learn to be comfortable in the tug-and-pull of a conflict
resolution.
The important capsule to be successful negotiator is to refuse to be intimidated. Even
the odds are most unlikely, few situations in life are rigidly fixed. Voicing a demand cant
insure success, but failure to make a request guarantees it wont be realized. The
golden rule to keep in mind, the mantra upon which to silently meditate as you enter
into
negotiation,
is
Ask
and
you
shall
receive.
Whenever we need the cooperation of another person to do something, however small,
we have to engross in a negotiation. Almost everything we do-from deciding with a
friend where to go to lunch to buying a new car to interviewing for a job- involves
negotiating. The media portray negotiations as complicated, dramatic affairs involving
powerful politicians or mighty business leaders or high-priced lawyers. But often
negotiations involve ordinary folks who, if they felt less intimidated by the process,
would
find
themselves
considerably
more
empowered
in
their
lives.
Indeed, the ten new rules for global negotiations advocated by Hernandez and Graham
nicely coincide with an approach that comes naturally to the Japanese:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.

Accept
only
creative
outcomes
Understand
cultures,
especially
your
own.
Dont
just
adjust
to
cultural
differences,
exploit
them.
Gather
intelligence
and
reconnoiter
the
terrain.
Design
the
information
flow
and
process
of
meetings.
Invest
in
personal
relationships.
Persuade
with
questions.
Seek
information
and
understanding.
Make
no
concessions
until
the
end.
Use
techniques
of
creativity
Continue
creativity
after
negotiations.

Negotiation is not a the supernatural practice. Nor is it sky rocket science requiring a
Ph.D. Rather, it is a fundamental human act, the process that enables the trading of
goods and services, favours and obligations. Negotiation is the protocol of exchange. If
negotiation is going on all the time, most often it is practiced without conscious
attention. Instead of encouraging us to pursue results we desire, our culture regards the
act of bargaining itself as somehow unseemly. It depicts the process as one in which two
people try to take advantage of each other. To identify our objectives and seek to obtain
them strategically is thought to be manipulative. Negotiation to be successful needs
strategy
and
dont
leave
leave
our
negotiations
to
chance.
There are few social skills more useful than the ability to negotiate. To deny this is to
deny one of the most fundamental human activities. From the stone age to the 21st
Century, history has moved forward through exchanging, bartering, and buying and
selling
services
and
products.
During a negotiation, it would be wise not to take anything personally. If you leave
personalities out of it, you will be able to see opportunities more objectively. Either
we're going to solve this by realistic negotiation or there will be blood on the border. If
you come to a negotiation table saying you have the final truth, that you know nothing
but the truth and that is final, you will get nothing. Let us move from the era of
confrontation to the era of negotiation. Negotiation in the classic diplomatic sense
assumes parties more anxious to agree than to disagree. The most difficult thing in any
negotiation, almost, is making sure that you strip it of the emotion and deal with the
facts. And there was a considerable challenge to that here and understandably so.
There's no road map on how to raise a family: it's always an enormous negotiation.
Negotiation in the classic diplomatic sense assumes parties more anxious to agree than
to disagree. Let us never negotiate out of fear. But, let us never fear to negotiate. The
most difficult thing in any negotiation, almost, is making sure that you strip it of the
emotion and deal with the facts. And there was a considerable challenge to that here
and understandably so. The single biggest danger in negotiation is not failure but to be
successful without knowing why you are successful. Flattery is the infantry of
negotiation. Effective negotiators have a style that those whom they are trying to
influence, relate to and admire. Negotiations are a euphemism for submission if the
shadow of power is not cast across the bargaining table. The Negotiation can be
invoked at any time, even if the matter is pending in the Court of Law. Similarly it can
be terminated at any time. Finally, the mode of ADR through Negotiation provides
flexible procedure, strict procedure of law is not applicable. It is the option of the parties
to decide their fate and Advocate can also negotiate with other parties for amicable
settlement. Here negotiation is nothing but discussion to arrive to a settlement. This
mode can be availed by parties themselves or on behalf of parties the Advocate can use
the
weapon
of
negotiation
also.
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