Friday, July 1st, 2022
If you have ever made your way down the corridors of Owino Market, you are probably conversant with negotiation. Negotiation is a process of communicating with another party or other parties for purposes of reaching a consensus, the idea is that every communication made during bargaining and negotiation is made with no third parties involved but is made directly to the other parties.
As we have discussed before, negotiation is one of the tools we use during alternative dispute resolution. Negotiation is very circumstantial, it varies from party to party depending on the conflict at hand. When a conflict occurs, one party may try to reach out to the other party to resolve the conflict without any intervention of a third party and once a consensus is reached, the results are taken in good faith.
The negotiation tool carries the following benefits;
Successful negotiation is not about getting to ‘yes’; it’s about mastering ‘no’ and understanding what the path to an agreement is.Christopher Voss
Elements of negotiation.
While it is easy for one to distinguish between mediation or arbitration, negotiation under ADR leaves things a bit ambiguous. We have already emphasised the absence of any third party, however, this is not the only characteristic that makes negotiation stand out.
Negotiation is non-confrontational. The parties do not confront each other or argue with each other. The parties agree on every decision and they work together towards reaching the decision.
Though negotiation appears to be the easiest mechanism of ADR, it is not without its challenges. The major challenge that may arise is linked to the enforcement of any negotiated settlement. It is not easy if one party is not willing to comply. If the agreement is written down, the party which intends to enforce it has to go to court to sue against the agreement. If the settlement is unwritten, it is complicated to prove in court what is not written.
For parties to have a successful negotiation, there is bound to be an element of trust between parties, without it, there is no guarantee that any party will hold up their end of the bargain. A negotiation can be the smoothest decision for any arising conflict giving parties involved the peace of mind that is absent when one opts for a court proceeding. The goal is to ensure that all interests are met. In ADR, there are two forms of bargaining that parties can use as they negotiate:
1) The positional bargaining
In positional bargaining, the parties base their bargain on the positions. It involves taking a position and abandoning it if the other side is not agreeable to the position.
2) Interest-based bargaining
With interest-based bargaining, the focus is on the interests and not their positions. What are the needs, desires, and concerns of the parties? To do this, parties should;
a) Separate the people from the problem. Human beings have emotions and prejudices. When bargaining, we must focus on the problem – the substance of the bargaining and not the emotions or prejudices of the parties.
b) Focus on interests, not positions. Concentrating on the positions of the parties may inhibit exploring the desires and needs of the parties. Good bargaining should focus on the needs and interests of the parties.
c) Invent options for mutual gains. The parties should be able to come up with as many alternative solutions as possible to the problem and then work towards agreeing on what is workable and the best solution to their problem.
d) Use objective criteria. Objective criteria are standards that are generally acceptable and do not only apply to individual situations. Objective standards allow the parties to benefit from past experiences and bring an element of fairness to their discussion.
To avoid any mishaps, once the parties have reached an agreement, the agreement must be recorded. The agreement should specify who should perform a particular task, how it should be performed and when it should be performed.
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