International Negotiations

Between countries International negotiation is as it says: inter-national. It is about negotiation between countries. International negotiation occurs all the time between governments and is the main subject of this page. It also happens between individuals and companies, where the traps and tricks of cross-border negotiation can ensnare even the most experienced home-country negotiators. International negotiation is often not just between individual people, but between large delegations, each of which is well organized and where every person has specialized and skilled work. There may be cultural experts, linguists and subject specialists as well as a chief negotiator and support negotiators. In a complex negotiation, there may be multiple and interlined sub-negotiations going on at the same time, for example where a trade negotiation includes deal involving various industries and interests. Cultural confusion A big trap in negotiation lies in misunderstanding the culture of other countries, especially in the rules that they use to negotiate. Whilst one country may emphasize politeness and integrity, another might use deception and coercive methods as a norm of negotiation, whilst being polite and friendly outside of the negotiation arena. It is easy also to offend people from other cultures without realizing what you are doing. Body Language, and particularly gestures, can have very different meaning, and what may seem an innocent movement to one person can be extremely rude to another. Diplomacy and tact International negotiation, done well, takes very careful notice of local cultures and customs, and is conducted with remarkable diplomacy and tact. Good international negotiators are very smooth and practiced in their art, and ensure they are extremely well informed not only about national cultures but also about the very individual perceptions of the people on the others side. The complexity and care of international negotiations may mean that the process can take an inordinately long time, quite likely months and possibly even years. Some negotiations never conclude, but the very fact that the two sides are talking is sufficient to distract them from more violent interplay. Blocs and alliances International negotiation often happens between many countries at the same time. These may band together into economic blocs (such as the European Union) or develop shorter-term strategic alliances, such as where smaller countries band together to confront a dominant larger nation. Such collective negotiations are often as much marriages of convenience as the joint action of true friends. Whilst international relationships are essential, each country eventually puts its own needs above the needs of others. Even when countries go to war on behalf of one another, the ultimate goal is still national at root. War and destruction International negotiation can be about life and death, literally, and even survival of the entire planet. In the cold war period, Russia and America engaged in an endless series of Strategic Arms Limitation Talks (SALT) to prevent the horrors of mutually-assured destruction (MAD). More recently, negotiations on limiting global warming have met with limited success that may yet (depending on who you believe) lead to even more damaging outcomes than nuclear war. The madness of not agreeing on matters of global destruction illustrates well the difficulties of international negotiation. It is easy on the international stage to paint yourself into a corner, and for personal posturing and political ambition to morph into extreme and ultimately foolish acts.

Alternative dispute resolution (ADR) (also known as external dispute resolution in some countries, such as Australia) includes 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 (indeed the European Mediation Directive (2008) expressly contemplates so-called "compulsory" mediation; attendance that is, not settlement at mediation). The rising popularity of ADR can be

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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. Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of the use of mediation to settle disputes. Types and features of alternative dispute resolution ADR is basically a resolution where you can save lots of money against another dispute resolution such as litigation. Litigation should be avoided at all costs because ADR is better. ADR is generally classified as a resolution for disputing many forms of ADR into at least four types: negotiation, mediation, collaborative law, and arbitration. (Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation. See conciliation for further details.) ADR can be used alongside existing legal systems such as sharia courts within common law jurisdictions such as the UK. The salient features of each type are as follows: 1. In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution. (NB a third party like a chaplain or organizational ombudsperson or social worker or a skilled friend may be coaching one or both of the parties behind the scene, a process called "Helping People Help Themselves" see Helping People Help Themselves, in Negotiation Journal July 1990, pp. 239248, which includes a section on helping someone draft a letter to someone who is perceived to have wronged them.) 2. In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a "mediator's proposal"), but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR is synonymous with what is generally referred to as mediation in other countries. 3. In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within specifically contracted terms. The parties reach agreement with support of the attorneys (who are trained in the process) and mutually-agreed experts. No one imposes a resolution on the parties. However, the process is a formalized process that is part of the litigation and court system. Rather than being an Alternative Resolution methodology it is a litigation variant that happens to rely on ADR like attitudes and processes. 4. In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. This is known as a 'Scott Avery Clause'. In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements (e.g., credit card agreements), has drawn scrutiny from courts. Although parties may appeal arbitration outcomes to courts, such appeals face an exacting standard of review.

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Beyond the basic types of alternative dispute resolutions there are other different forms of ADR:  Case evaluation: a non-binding process in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of their respective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator.  Early neutral evaluation: a process that takes place soon after a case has been filed in court. The case is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute. The evaluation of the expert can assist the parties in assessing their case and may influence them towards a settlement.  Family group conference: a meeting between members of a family and members of their extended related group. At this meeting (or often a series of meetings) the family becomes involved in learning skills for interaction and in making a plan to stop the abuse or other ill-treatment between its members.  Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes.  Ombuds: third party selected by an institution for example a university, hospital, corporation or government agency to deal with complaints by employees, clients or constituents. The Standards of Practice for Organizational Ombuds may be found at http://www.ombudsassociation.org/standards/. Benefits of ADR ADR has been both; increasingly used alongside, and integrated formally, into legal systems internationally in order to capitalise on the typical advantages of ADR over litigation:           Suitability for multi-party disputes Flexibility of procedure - the process is determined and controlled by the parties the dispute Lower costs Less complexity ("less is more") Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate Likelihood and speed of settlements Practical solutions tailored to parties interests and needs (not rights and wants,as they may perceive them) Durability of agreements Confidentiality The preservation of relationships, and the preservation of reputations.

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 Methods of dispute resolution include: 1. 2. 3. 4. 5. 6. 7. lawsuits (litigation) arbitration collaborative law mediation conciliation many types of negotiation facilitation

Definition: 1. A lawsuit or (less commonly) "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint. If the plaintiff is successful, judgment will be given in the plaintiff's favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes. Although not as common, lawsuit may also refer to a criminal action, criminal proceeding, or criminal claim. Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides. Other forms of ADR include mediation(a form of settlement negotiation facilitated by a neutral third party) and non-binding resolution by experts. Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. The use of arbitration is also frequently employed in consumer and employment matters, where arbitration may be mandated by the terms of employment or commercial contracts. Collaborative law (also called collaborative practice, divorce, or family law) is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of contested litigation. The voluntary process is initiated when the couple signs a contract (called the "participation agreement"), binding each other to the process and disqualifying their respective lawyer's right to represent either one in any future family related litigation. Mediation, as used in law, is a form of alternative dispute resolution (ADR), is a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement (facilitative mediation). In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluative mediation). Mediation has a structure, timetable and dynamics that "ordinary" negotiation lacks. The process is private and confidential. The presence of a mediator is the key distinguishing feature of the

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process. There may be no obligation to go to mediation, but in some cases, any settlement agreement signed by the parties to a dispute will be binding on them. 5. Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute (including future interest disputes) agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bringing about a negotiated settlement. Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award. Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. In mediation, the mediator tries to guide the discussion in a way that optimizes parties needs, takes feelings into account and reframes representations. In conciliation the parties seldom, if ever, actually face each other across the table in the presence of the conciliator. Negotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantage, to craft outcomes to satisfy various interests of two person/ parties involved in negotiation process. Negotiation is a process where each party involved in negotiating tries to gain an advantage for themselves by the end of the process. Negotiation is intended to aim at compromise. Facilitation is used in business and organizational settings to ensure the designing and running of successful meetings.

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