Negotiation as an Alternative Dispute Resolution Approach (Essay Sample)

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Negotiation as an Alternative Dispute Resolution Approach
Alternative dispute resolution (ADR) is an out-of-court mechanism for settling disputes, and often involving neutral go-betweens or mediators. The process allows the conflicting parties to iron out their differences and reach at a mutually acceptable or beneficial solution without the need of going to trial. They provide a less adversarial and confrontational setting in which disputing parties can amicably reach a lasting solution to their dispute. Common alternative dispute resolution approaches include negotiation, arbitration, mediation, neutral evaluation, summary jury trials, and collaborative law. The common characteristics among these dispute resolution approaches is that compared to traditional court procedures, they are generally less formal, confidential, and the outcomes left to the control of the parties. Today, alternative dispute resolution mechanisms are often recommended by courts due to their effectiveness. For instance, courts routinely order cases that have reached a stalemate to be resolved through mediation or arbitration. This essay discusses the effectiveness and challenges of negotiation as an alternative dispute resolution process.
Negotiation is any form of direct and indirect communication through which conflicting parties explore a course of joint action that will serve their interests and resolve the conflict. Negotiation is typically employed to resolve an existing dispute or prepare the way for future negotiations and relationships. Negotiation is widely regarded as a “preeminent mode of dispute resolution” because it is commonly applied in almost all aspects of everyday life, whether at individual, group, institutional, or national levels (Goldberg, Frank and Rogers 3). Indeed, negotiation is the medium of communication applied in other dispute resolution mechanisms like settlement conferences, litigation, mediation and arbitration. Negotiation processes differ in terms of the nature of the dispute, length of negotiation and number of participants involved. However, the overall aim of any negotiation process is to avoid adversarial confrontation that may lead to a stand-off and prolong the problem.
Characteristics of Negotiation as a Dispute Resolution Mechanism
As the term negotiation suggests, the process involving bringing the conflicting parties to the table for talks aimed at preparing the way for an amicable resolution of a problem. In this regard, the negotiation strategy is voluntary, bilateral/multilateral, non-adjudicative, informal, and confidential.
Voluntary
In this approach, no party is forced to come to the negotiation table. The disputing parties are free to accept or reject invitations for negotiation, and when they accept they do so on their own volition. Parties to a dispute may engage in the negotiations directly or use representatives, such as a lawyer or a friend, who will defend the interests of the party they are representing (Coltri 17). For instance, a divorced couple can let their lawyers to negotiate over child custody and sharing of family property. In most cases, the representatives go into the negotiation table with instructions on what to accept or reject, what compromises to make and the least acceptable outcome. Similarly, the parties have the right to accept or reject the proposed solution, or pull out at any time. In this regard, one major weakness of the negotiation strategy is the inability to guarantee the parties’ commitment.
Bilateral/Multilateral
The negotiation process involves two or more parties who have a vested interest in the dispute or the outcome of the negotiation. An example of a bilateral negotiation process is when two people haggle over the sale of a property. In this case, the negotiations may involve agreeing on the price, the percentage of the down payment, the mode of payment. Multilateral negotiations, on the other hand, involve several parties, such as heads of states when making international treaties, or diplomats when negotiating over trade agreements between member countries.
Non-adjudicative
The outcome of the negotiation and solution to the dispute are determined by the parties’ willingness to agree to the proposals and terms presented at the negotiation table (Coltri 16). In this regard, there is no involvement of a third neutral party. The give-take nature of negotiation gives the parties the authority to determine what to rights or interests to the dispute to surrender, and what to demand as compensation.
Informal
Negotiations are informal because there are no standard rules that dictate how to manage the process. The involved parties are free to adopt any terms of engagement that they may deep appropriate to their situation. For instance, they may decide to meet in one of the parties’ premises or at a neutral place. Similarly, parties may correspond through mail or video conferencing.
Confidential
Confidentiality is a key aspect of negotiations that involve private matters, such as sale agreements. However, international negotiations involving countries may be subject to public disclosure, especially when discussing issues of public interest such as international trade agreements and security. The Privacy Act and Access to Information Act are the reference points when determining the type of government-level negotiations that should be made public and those to be classified.
Flexible
The negotiation approach to dispute resolution is flexible since it gives parties the freedom to determine the issues to be discussed, when to call off the negotiations and whether to be bound by the outcome.
There are two common negotiation strategies, positional-based negotiation and interest-based negotiation.
Position-Based Negotiation
Also known as competitive negotiation, this strategy is applied when each part wants to maximize its gains at the negotiation table (Fisher, Ury and Patton 4). It is usually unproductive as it encourages the parties to take hard stances and resist giving in to compromises. Consequently, this approach is often criticized because it discourages objectivity and consideration of mutual interests, which is important for speedy dispute resolution.
Interest-Based Negotiation
This strategy is also known as cooperative negotiation, and it involves both parties working toward a mutually-benefiting solution. It stresses focus on common interests as a means of avoiding a stalemate and making the negotiations productive (Coltri 131). Accordingly, interest-based negotiation is recommended because it encourages objectivity and willingness by both parties to make compromises.
Advantages of Negotiation in Dispute Resolution
Flexibility
Negotiation provides the parties with a free hand in deciding how to approach and deal with the issue. It does not lay strict rules on the duration of the negotiation process, the expected outcomes, or what the parties must agree it. In contrast, if offers an open platform where the parties can revise their demands and give concessions as it suits their interests (Coltri 17). Flexibility boosts the chances of reaching an agreement because parties both participate under terms of engagement agreeable to them.
Guarantees a Win-Win Outcome
The idea of negotiation is to reach at a mutual agreement. Unlike a court trail where one party must lose, negotiation provides parties with a forum where they can focus on their mutual interests and tailor a solution that satisfies both sides (Susskind 210). In addition, the willingness of the parties to find a solution allows them to put aside their hard lines and any divisive issues that may hinder productive talks. In this regard, negotiation is a more promising dispute resolution strategy compared to adversarial approaches like l...