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“Law Master’s” Publication
“Negotiation”
Prof. S.D. Bhosale
(..5..)
NEGOTATION
Question Bank
Q.1.What are the styles and phases of negotiation as a process of alternative dispute
resolution?
Q.2. Discuss the meaning, essentials and significance of Negotiation.
Short Notes
1. Qualities of negotiator.
Table of Contents
I. Meaning of Negotiation-................................................................................................48
II. Characteristics of negotiation:-.....................................................................................49
1. Voluntary:-.................................................................................................................49
2. Two or more parties:- ................................................................................................49
3. No adjudication:- .......................................................................................................49
4. Informal process:-......................................................................................................49
5. Confidentiality:-.........................................................................................................49
6. Flexible:-....................................................................................................................49
III. Advantages of negotiation:- ........................................................................................49
1. Most flexible:-............................................................................................................49
2. Great chance of possible outcome:-...........................................................................49
3. Voluntary process:-....................................................................................................49
4. No need of third neutral party:- .................................................................................49
5. Maintains relationship:- .............................................................................................50
6. Less expensive and not time consuming:-.................................................................50
IV. Disadvantages of negotiation:-....................................................................................50
1. Unequal status of parties:- .........................................................................................50
2. The situation of impasse:-..........................................................................................50
3. Absence of neutral third party:-.................................................................................50
4. Relations may strain:- ................................................................................................50
5. No compulsion to continue negotiation:-...................................................................50
6. Negotiation is not applicable in all cases:- ................................................................50
7. No legal framework:-.................................................................................................50
V. Styles of negotiation:-...................................................................................................51
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“Law Master’s” Publication
“Negotiation”
Prof. S.D. Bhosale
3. Compromise:- ............................................................................................................51
4. Avoid:- .......................................................................................................................51
5. Accommodate:-..........................................................................................................51
VI. Stages of negotiation:-.................................................................................................51
1. Preparation:-...............................................................................................................51
2. Opening:- ...................................................................................................................52
3. Bargaining:- ...............................................................................................................52
4. Closing:-.....................................................................................................................52
“Let’s settle the dispute by discussion”
I. Meaning of Negotiation-
The word ‘negotiation’ is derived from a Latin term ‘Negotiari” means “to
carry on business”.
‘Negotiation’ is a form of direct or indirect communication, whereby the parties
having opposite interests discuss the form of any joint action which they might take to
manage and ultimately resolve the dispute between them.
It is a way whereby parties come together and try to resolve their dispute by
means of mutual understanding and negotiations.
It may be used to resolve present or future dispute of all nature. The disputing
parties even have a choice to appoint a negotiator. Such negotiator may help parties to
arrive at common understanding. The parties to the dispute should keep their focus on
care of the dispute resolution through negotiations among themselves.
In India, negotiation as a means sole alternate dispute resolution has no statutory
recognition. Civil Procedure Code or Legal Services Authorities Act, does not mention
negotiation alone as an alternate dispute resolution means. However, it is used with
other means of alternate dispute resolution.
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“Law Master’s” Publication
“Negotiation”
Prof. S.D. Bhosale
II. Characteristics of negotiation:-
Following are some of the main characteristics of negotiation-
1. Voluntary:-
Negotiation is voluntary. Neither party to the negotiation is forced or compelled
to negotiate. The parties are free to either accept or reject the outcome of negotiation.
Any party can withdraw at any time during the negotiation. The parties are at liberty
either to negotiate themselves personally or they may negotiate through any negotiator.
2. Two or more parties:-
Negotiation may involve two or more number of parties.
3. No adjudication:-
Negotiation is the non-judicial process. No third party involves in the process.
Outcome of the negotiation is neither judgment nor award of a third party, but
settlement between themselves.
4. Informal process:-
So many rules are not prescribed in negotiation. The parties are at liberty to
adopt whatever rules they may choose to arrive at conclusion.
5. Confidentiality:-
The negotiation proceeding is confidential. The proceeding can only be revealed
by the consent of the parties.
6. Flexible:-
The process of negotiation is flexible. The parties themselves can decide the
rules of proceeding.
III. Advantages of negotiation:-
The ‘negotiation’ has following advantages-
1. Most flexible:-
Negotiation is most flexible form of alternate dispute resolution. The parties are
at liberty to set the negotiation in accordance with their needs. They can set the agenda,
select negotiators as per their convenience.
2. Great chance of possible outcome:-
Due to its flexible process and friendly form of negotiation, there are great
chances of success.
3. Voluntary process:-
Negotiation is a voluntary process and since there is absence of any compulsion,
the parties can freely participate in the process.
4. No need of third neutral party:-
In negotiation there is no need of neutral third party. In highly sensitive matters
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“Law Master’s” Publication
“Negotiation”
Prof. S.D. Bhosale
negotiation by parties themselves is very useful means of dispute resolution, so to
prevent sensitive information to be passed to outsiders.
5. Maintains relationship:-
Amicable dispute resolution through negotiation, maintains or improves
relationship between the parties.
6. Less expensive and not time consuming:-
Opting for dispute resolution through negotiation causes less expenses and time
consuming comparing to ordinary judicial proceeding.
IV. Disadvantages of negotiation:-
Negotiation has following disadvantages-
1. Unequal status of parties:-
Where the parties having unequal status and power, one party may dominate the
consent of the other party. Thus, there is a chance of winning over justice by one party.
2. The situation of impasse:-
The disagreement between the parties sometime may deadlock situation, where
parties are reluctant to proceed further. The situation may lead to halting of the process,
leading parties in a helpless situation to leave the negotiation.
3. Absence of neutral third party:-
Negotiation lacks help and expertise of neutral third party. In negotiation either
parties negotiate themselves or through their negotiators, however there exist no
neutral third party. Negotiation by the parties themselves may end being unsuccessful
due to their ego problems.
4. Relations may strain:-
Failure of the parties to come to conclusion may lead to further strain their
relations.
5. No compulsion to continue negotiation:-
There is no compulsion in negotiation. A party may quit negotiation at any time.
6. Negotiation is not applicable in all cases:-
Negotiation is not applicable in all cases. In the cases of non-compoundable
matters, antisocial matters etc. negotiation is not advisable.
7. No legal framework:-
In India there is no legal framework for negotiation. No specific and
comprehensive provisions exist for negotiation.
In fact, negotiation with other mode of dispute resolution like, arbitration,
mediation, conciliation etc. is used under S. 89 of the C.P.C in India, instead of sole
means of dispute resolution.
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“Law Master’s” Publication
“Negotiation”
Prof. S.D. Bhosale
V. Styles of negotiation:-
There are five different styles of negotiations, depending upon the way they are
conducted. The styles of negotiation are strategies designated to get anticipated
outcome. These styles comprise communication styles, language used, spiking
behavior, gesture etc.
The selection of the style of negotiation by and large depend upon the nature and
subject matter of the dispute. Each of these styles, has its own merits and demerits. We
will discuss these styles as follows-
1. Competitive:-
In this style of negotiation, negotiator stress more on gain to his party. He hardly
gives importance to the other party. The interest of such negotiator is to gain more and
more for his party. To get more, he adopts hostile approach towards opposite party. It
follows the model “I win, your loss”.
2. Collaborative:-
In his style of negotiation, negotiator cooperate and collaborate to achieve a
common objective, in the best interest of all the parties. Reaching common object is
important in this style. The style follows the model “I win, you win”. The stress is
given more on mutual needs and their satisfaction.
3. Compromise:-
This style follows the model “I win/lose some, you win/lose some”. To reach at
an agreement, the negotiator often relinquish some terms in four of gaining others.
4. Avoid:-
The style work on the model “I lose, you lose”. In this style, the negotiator talks
in vague terms about the dispute, rather than talking directly on the issue itself. This
style may cause rift in relationship between the parties.
The style is useful in trivial matters. It works in the situation where the
investment of the time to resolve the dispute outweighs the outcome of the discussion.
5. Accommodate:-
This style follows the model “I lose, you win”. In this style the negotiator
focuses on preserving the relationship and building a friendly rapport by sacrificing
some of their interests in favour of the opposite party’s interests.
VI. Stages of negotiation:-
The negotiation passes through the following phases.
1. Preparation:-
This stage involves preparation for negotiation to collect information on the
matter.
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“Law Master’s” Publication
“Negotiation”
Prof. S.D. Bhosale
2. Opening:-
In this stage both sides present their position and open the negotiation.
3. Bargaining:-
In this state parties actually negotiate.
4. Closing:-
This stage reflect the outcome of negotiation. Either, the dispute is settled or
closed without settlement on the ground of non- proceeding further.
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