Introduction:
Some contracts insert a two-layer dispute resolution clause which demands that parties must first attempt to resolve their dispute by negotiation before resorting to litigation. They usually provide a time frame within which any such dispute must be resolved by negotiation, and after the lapse of the time, a party is at liberty to approach a court.
When disputes arise, parties rarely seek to apply negotiation effectively to resolve their disputes. They merely exchange correspondence in order to satisfy this condition for approaching a court. In most cases, parties don’t even understand why negotiation is inserted as a condition for access to court, and in others, they are blinded by emotions which the dispute has generated. So, instead of seeking to deploy negotiation effectively and with a genuine seriousness to resolve the dispute, parties allow the negotiation period to waste off with just an exchange of correspondence which are not even drafted in a conciliatory tone that could encourage sitting at the opposite tables.
Advantages of Negotiation When Deployed Effectively
- Saves time
- Saves cost
- Confidential
- Friendly and preserves relationship
- Moderate gain and mitigated loss
- Cooperation and rules redefinition
- Improved communication
Helping Yourself in Negotiation
Most times, parties are not required to procure the services of a legal representative to engage in negotiation. A party may engage the other party directly in a frank discussion, highlighting the disputes with a view to resolving them. Here are few tips when a party is considering negotiation:
- Know the subject matter of the dispute: it is important to know what the subject of the negotiation is, what you want to achieve, what you are prepared to forego and the significance of each word that would be inserted in the resolution document.
- Control your emotion: in high-stakes dispute, it is easy to give in to emotion and allow it to run the process. In this case, it is advisable that the party should hire a negotiator where emotions cannot be managed. Most negotiations are ruined by wrong choice of words, poor communication or high running emotion on one or both sides to the dispute. A negotiator will achieve a result in a calm, emotionless discussion.
- Pay attention to your attitude: negotiation is not a battle. Most people’s disposition to negotiation kills the spirit. Sometimes, it is not about who is right but about what is right. A negotiator that speaks about the fairness of an issue will more likely achieve his goal more easily than one that talks about how he is right and the other person is wrong. This is why it is always advisable to focus on interest and not position. In watching your interest, you analyse the fairness of your demand and why the other person should agree with your position.
- Focus on your goal: Losing sight of the goal is the beginning of waste of the negotiation time and process. Parties easily get distracted by ancillary issues, while losing sight of the primary goal of the discussion. Therefore, ignoring distractions, which could be in the form of side comments, is a good way to have a successful negotiation.
- Focus on long term: immediate wins that can ruin future relationships should not be the objective of negotiation. Parties’ interests must be balanced in such a manner that they are able to shake hands at the end of the discussion. What is your long-term goal in the relationship? Your immediate goal should not jeopardise your long-term goal, as the dispute might reoccur if the other party feels cheated during the initial negotiation.
- Be attentive: pay attention to details including verbal and non-verbal communications of the other party. This goes beyond listening to what they have to say. It includes asking for clarification, where necessary, nodding, maintaining facial contact, and a willing disposition to discussing the issues. Also, pick every word and assimilate it. Take notes, if necessary, but only occasionally. Read the other party’s facial expression, body language, cues, etc.
- Communicate effectively: convey what exactly you want the other party to understand. Let your verbal expression match the non-verbal expression, your gesticulations, facial expression and eye contact. Avoiding eye contact during communication is either a show of distrust, telling lies or lack of confidence. Ditch your shyness and maintain eye contact.
- Deploy empathy: every negotiator understands how important it is to be empathetic towards the other person’s interest. It shows your maturity, understanding and that you are not selfish. It also shows that you have assessed the issues from the other party’s point of view.
- Know when to say no: if you are willing to accept everything or anything, then there is no reason to negotiate. Negotiation, essentially, is about getting what you want without making your partner lose out completely. It is a good idea to list at least three items in order of priority that you are willing to achieve. The most important one is the one you cannot forego. If negotiation breaks down because you are unable to achieve that most important item, you have won the negotiation. If it succeeds, you have won again.
Duties of a Negotiator
Sometimes, parties may need to hire skilled negotiators where the stakes are high. Negotiation can resolve (a) contractual disputes; (b) family disputes; (c) communal disputes; (d) national and (e) international disputes. Where properly deployed, it can avert wars, communal clashes, preserve families and settle contractual disputes.
In most cases where the stakes are high, emotions run high and parties may well be advised to hire negotiators. The following are the duties of the negotiator and how you can get them to observe those duties:
- Duty of care: they can be liable in negligence for poor representation.
- Knowledge and expertise: they should demonstrate their knowledge of the dispute and expertise in handling the dispute.
- Confidentiality: a negotiator cannot divulge any information that he came to possess by virtue of his engagement.
- Proper advice: they should guide their principal in making an informed decision after analysing the scenario.
- Report: they give a report of their engagement in each session of the negotiation and keep a report for the purpose of review.
In all cases, it is advisable to draw a contract that regulates your relationship with the negotiator and which details his remuneration, the nature of his assignment, duties, etc.
Please note that this article is for information purposes only, and it should not be construed as legal advice. Should you require further communication regarding the article, contact the author at nemmanuel@abdu-salaamabbasandco.com