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Negotiation is a subtle art that is often used these days by scholars and critics of the legal fraternity. Patricia Bizzell and Bruce Herzberg mention in their book “Negotiating Difference” that negotiation is a constructive way of interaction of differentiating groups in social and political matters.
A dispute can arise between every conceivable relation present. Methods of Resolution of Disputes can be divided into traditional and modern methods. One of the modern methods of Dispute Resolution is the negotiation a part of ADR(Alternative Dispute Resolution).
A famous legal maxim ‘ Consiliaomniaverbispriusexperiri, quam armissapientemdecet’ rightfully suggests that an intelligent man would prefer negotiation before using arms. The word ‘negotiation’ can be interpreted in a number of ways and thus the word has a number of definitions.
CASE LAWS DEFINING NEGOTIATION
In the case Werner v Hendricks, the following two perspectives of negotiation were prevalent:-
SIMPLIFIED VERSION OF THE TERM NEGOTIATION
“Negotiations are the deliberations which take place between the parties touching a proposed agreement.”[1]
BREAKDOWN OF THE PURPOSES OF NEGOTIATION
“To negotiate is to transact business, to treat with another respecting a purchase and sale, to hold intercourse, to bargain or trade, to conduct communications or conferences. It is that which passes between parties or their agents in the course of or incident to the making of a contract; it is also conversation in arranging terms of the contract.”
The Commercial Union Life Assurance Co. of Canada v. John Ingle Insurance Group Inc. showed the restricted definition of negotiation:-
RESTRICTED DEFINITION OF NEGOTIATION
“… arrangement through communication or agreement through discussion. It need not contain an element of bargaining.”[2]
The Aronovitch&Leipsic v. Berney two perspectives of negotiation were seen.
NEGOTIATION AS AN ENGAGING PROCESS
“A consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter.”[3]
COMPONENTS OF NEGOTIATION
“Negotiation usually involves complete autonomy for the parties involved, without the intervention of third parties. Dealings conducted between two or more parties for the purpose of reaching an understanding.”[4]
In India, there is no particular law legalizing the practice of negotiation, but negotiation is practiced on several occasions by the parties. The practice of negotiation is essentially taken from the common law of England. Negotiation can happen in the following two ways. One in which the parties and all the stakeholders themselves take part in the negotiation and the second in which the parties appoint a virtuoso in the field for negotiating on their behalf.
No matter what is type negotiation is an art that can be perfected through the various strategies. In the book ‘Art and Science of Negotiation,’ it is mentioned that negotiation is both an art and a science. The Science part of negotiation consists of the ‘systematic analysis’ of the problem and the art part consists of interpersonal skills and the charismatic way of argumentation. There are however prerequisites essential to the process of negotiation. They are as follows:-
- The voluntary consent of both parties to negotiate on the dispute.
- The dispute concerns both parties in such a way that the parties are dependent on each other.
- The parties should have the willingness to settle the dispute.
- The dispute at hand should be negotiable.
- In certain cases there is a sense of urgency and deadline in the dispute leading to negotiation.
There are several strategies that one can adopt to effectively continue the negotiation process but here we will be discussing 4 major strategic techniques:-
a.BARGAINING
Bargaining is a type of hard-negotiation strategy where the parties seek to establish a win-lose situation. It establishes a situation of the competition among the parties. It is an over-ambitious stance that often results in a deadlock. The strategy of bargaining requires one party to be fixated or anchored in one’s offer and allowing the other party to soften. The strategy of bargaining is also characterized by setting the boundaries beyond which no negotiation would occur, or the ‘walk away’ situation.
THE PROCESS
The breakdown of the process of bargaining can be expressed in the following points:-
- Starting offers are made by both the parties to each other
- Firm commitments are made by both the parties and the walk-away position is established
- Grant of rewards and imposition of sanctions are issued to force the other parties to loosen their stance and thus give concessions
- Mutual concessions are made
- The over-ambitious bids by one party force the other party to retract. Further concessions are provided by the parties
- Lastly, when both of the parties are in a position of retraction the parties tend to agree over a middle-ground from the position they first established.
In the concluding position, both parties have a mutually beneficial, joint solution to representation in the bargain. The system of bargaining, however, encourages the parties to play competitively with one another. The main reason behind this is the fear that the parties will take advantage of the situation and force upon their opponents to come to an unstable position.
This system of bargain became an important approach in international negotiations in the decades of the late 60s and early 70s.
This system of bargaining is mainly adopted from the AnatolRapoport’sbook Fights, Games and Debates in 1960. This relates closely to the ‘Game Theory’.
Anatol Rapoport in his mentioned the following lines about the game theory, thus hinting at the negative side of bargaining and the game theory.
“At present game theory has, in my opinion, two important uses, neither of them related to games nor to conflict directly. First, game theory stimulates us to think about conflict in a novel way. Second, game theory leads to some genuine impasses, that is, to situations where its axiomatic base is shown to be insufficient for dealing even theoretically with certain types of conflict situations. These impasses set up tensions in the minds of people who care. They must, therefore, look around for other frameworks into which conflict situations can be”[5]
Bargaining has a number of types one of them is positional bargaining. Positional bargaining is a type of bargaining where the parties are fixated in their position and do not want to compromise with the other party. Haggling is an example of positional bargaining.
b.GETTING TO YES: ROGER FISHER AND WILLIAM L. URY
Getting to yes is the name of the 1981 non-fiction written by Roger Fisher and William l Ury. This process of negotiation enshrined in this particular book is often called the Fisher/Ury method of negotiation. It was the international bestselling book on negotiation in the 80s.
The method of negotiation mentioned is ‘principled negotiation’. This type of negotiation deals with the core ethical standards of conducting a negotiation process. Fisher / Ury mentioned that the chances of arriving at a successful negotiation increase once the parties are morally coordinating and principled in approach.
GENESIS
The origin of this book revolves around the flagship project at Harvard University known as the Harvard Negotiation Project. Both Fisher and Ury were associated with Harvard. Both of them singularly were negotiation activists. Fisher, was an audience to the devastating 2nd world war so when in Harvard later on, he became inclined to the art of negotiation as a method of settlement of disputes.
THE PROCESS –
The title of the book says -Getting to yes: Negotiating without giving in. The title itself mentions how to negotiate and thus come at a middle ground and avoiding the impasse. The book is divided into the following strategies that one should follow towards successful negotiations
- That the problem should be separately treated from the people
- The focus should be on the interest and not the position.
- The parties should generate a number of options before settling on the final argument, and
- The parties should ensure that the agreement is finally based on objective considerations.
Three impediments to negotiation and consecutive ways to overcome these obstacles are also mentioned.
Thus the process of ‘GETTING to YES’ begins with analysis, where a careful breakdown of the problem and the situation is done. The other parties interests are considered and the various options are exploited. Finally, the agreement should be achieved in a win-win situation.
1.Separation of people and issues
People should avoid combining people and their issues. Here Fisher/Ury talks about the three common problems encountered during the process of negotiation:
- Different interpretation – the factor that brings in subjectivity to the process of negotiation is the difference in interpretation. The best way to avoid this problem is to put themselves in the shoes of the other person and try to understand the other’s point of view.
- Emotions- human beings are characterized by the presence of feelings and emotions. This can even lead to the outburst of emotions. Each party should be considerate enough to understand the other party. They should try their utmost to express symbols of apathy.
- Communication- during the conversations sessions the parties might get absent-minded in planning for their stand and thus lose out on the communication. The practice of active-listening should be practiced to ensure that there does not remain any communication gap between the parties and the parties understand each other.
2.Focus on the interests
The parties to a negotiation can several underlying interests. It would do well, therefore, to focus on a particular interest at a time and simultaneously consider the other persons. If one party shows inclination in the other party’s interest then there will be an atmosphere of amity.
3.Generation of options
Fisher /Ury mentions a brilliant way to come to generate options. They ask the parties to meet in an informal setting and conduct a session on ‘brainstorming’. The brainstorming sessions have 4 stages involves – stating the problem, analyzing the problem, approaching the problem in a general manner and finally approaching the problem in a specific manner. The key to reconciliation of differences is finding out the matter which is of low cost but is of high benefit to the parties.
4.Using the objective criteria
The meaning of objective criteria includes the scientific approach, dividing the article, determining the legal position, etc. This is a more pragmatic, sensible approach to the dispute at hand.
The three positions that can arise out of the
- When one of the parties is more powerful:
Power differences can never be bridged up. Fisher and Ury have suggested certain process to protect the weaker party and to help the weaker party make the most of their assets, where the party is asked to focus more on the BATNA (Best Alternative To A Negotiated Agreement)
- When one of the parties will not use Principled Negotiation
Fisher and Ury have devised a method to control this kind of situation. The party should continue following the principled approach. Later the principled party should use the process called negotiation jujitsu to bring to control the action of the other party and in the end, if nothing works to bring in a third party.
- When one of the party uses dirty tricks
When one of the parties resorts to using cheap tricks the best way to handle is to explicitly mention that to the negotiation process itself.
c. BATNA
The weaker party should concentrate on analyzing its best alternative to a negotiated agreement (BATNA). The weaker party is generally not considered the agreement that would leave them worse off than their BATNA. Therefore the party should be aware of the BATNA. BATNA is used to gain the greatest out of the assets.
The parties in a negotiation are considered powerful because they have the scope of walking away. The party with the best BATNA is considered to be in a better stance. All the parties in a negotiation should try to estimate and analyze not only their BATNA but also the other parties BATNA as well because ultimately the winning edge depends on the person with the best BATNA. The parties throughout the negotiation process should try to increase the winning chance of their BATNA.
d. ZOPA
ZOPA is the abbreviated form of a “Zone of Possible Agreement”. It is also called the bargaining range. ZOPA is the zone that would benefit both parties to the maximum apart from the other agreements between the parties.
The ZOPA range once invented becomes critical to the outcome of a negotiation. But it generally takes some time to determine where the ZOPA exists; it is evident known once the parties explore their various interests and options. The major impediment leading to the prevention of the parties from attaining he ZOPA that the parties are not ready to fully reveal their confidential information. However, once the ZOPA is successfully found out the parties can easily come into an agreement.
[1]121 Pa. Super.46 (Pa. Super. Ct. 1936)
[2]Commercial Union Life Assurance Co. of Canada v. John Ingle Insurance Group Inc., 2002 CanLII 45028 (ON CA), <http://canlii.ca/t/1ct1s>, retrieved on 2019-06-24
[3]2005 MBQB 180 (CanLII)
[4]2005 MBQB 180 (CanLII)
[5]. Rapoport, Fights, Games and Debates, p. 242.
