NEGOTIATION

Let us never negotiate out of fear. But let us never fear to negotiate.

-John. Kennedy

This article is written by Kritika Raikwar, intern at Legal Vidhiya

INTRODUCTION

Alternative dispute resolution (“ADR”) refers to any way of settling matters without resorting to litigation that occurs outside court walls. All methods and processes for resolving disputes that take place outside of a governmental framework are gathered under the umbrella of ADR. The following are the most well-known ADR techniques:

• Mediation
• Negotiation
• Conciliation
• Transaction
• Arbitration

The article will concentrate on negotiation, one of the most fundamental methods of dispute resolution that is usually overlooked in favour of arbitration and mediation. Although negotiation is always used as the first stage in conflict resolution, arbitration, and mediation are the ADR methods that are most well-known. That is not to say that negotiation is less known or employed than the other approaches; on the contrary, when it comes to resolving a conflict, it is always the first thing that people think of.

WHAT IS NEGOTIATION?

Negotiate is derived from the Latin negōtiārī, which means “to carry on business,” and the term carries the same meaning. The definition that is recognized in today’s society is “discussion aimed at reaching an agreement”.

Negotiation has been characterized as the “preeminent mode of dispute resolution”. Negotiation is a conversation between two parties to resolve disagreements or problems such that both sides are happy with the outcome. Typically, a compromise involves both giving and taking something. When both parties are willing to make concessions in order to end a dispute amicably, negotiation is the reason they are doing so. Everywhere you look, you may see negotiations taking place. For example, while purchasing fruits and vegetables from a seller, you might haggle for a good deal, or at work, negotiations can happen between management and an employee, etc. In the legal context, negotiation is the simplest method to settle disputes because compared to mediation and arbitration it is less formal and allows both parties to put forward their views and opinions. Personal situations such as marriage, divorce, and parenting, as well as professional and governmental ones such as international trade and international law, all demand some level of negotiation.

In the case of Harsh Gopal Khandelwal v. Aarti Khandelwal^[1] the court advised both parties to engage in discussion if it was certain that there would be no conflict between them. It was stated that the parties were free to continue in line with the law if the negotiations produced no results.

HISTORY OF NEGOTIATION

Since the beginning of human evolution in the civilized world, negotiation has proven to be a great tactic to deal with problems in every aspect of life. The evolution of the human brain has included an increase in the usage of negotiation processes, which has led to an expansion in the size of the brain itself.

Although they are sometimes mistaken for one another, the processes of negotiation and mediation are each distinct in their own right. This is due to the fact that mediation employs bargaining techniques, often with the assistance of a third party known as a negotiator or mediator. The term “negotiator” also refers to trained mediators.

In contemporary times, negotiation has its presence in the Indian legal system but it has not been given legalization. There is no formal legal framework, or legislative recognition, for negotiation. Although the Enron case could be the most well-known negotiating case study in India. Energy tycoon Enron, located in the US, was in negotiations with the Indian government about expanding to Maharashtra. It is regarded as an important case study.

CHARACTERISTICS OF NEGOTIATION

• Informal
• Voluntary
• Multilateral/Bilateral
• Flexible

TYPES OF NEGOTIATION

• DISTRIBUTIVE NEGOTIATION: When two parties bargain about a particular item or topic, like pricing, it’s known as distributive bargaining. For instance, haggling over the cost of a fruit or vegetable with the street seller. In the end, one party—the buyer or the seller—must concede defeat and purchase or sell the product at a reduced rate. It is more competitive than other techniques because it leads to a win-lose situation. This type of strategy can be seen in the case of Delhi Jal Board vs Grasim Industries Ltd. & Others[2], In this case, both parties were negotiating on the bid price. The Informant alleged that in negotiation over the bid price, all the Opposite Parties used to decide as to how much amount is to be decreased or negotiated from the bid/ quoted price.
• MULTIPARTY NEGOTIATION: This type of negotiation method includes 3 or more parties. Three or more parties engage in diverse negotiating methods to hammer home their ideas throughout the multiparty negotiation process. For example, four friends debate which movie to watch on Movie Friday.
• INTEGRATIVE NEGOTIATION: It is a sort of negotiation in which more than one problem must be resolved through the negotiation process. Both parties benefit from the negotiation. A win-win outcome is ensured via an integrative negotiation process. Often in this type of negotiation, both parties aim for mutual gains.

CONCEPT OF MIXED MOTIVE EXCHANGE

Negotiation is an interchange of ambiguous motives. Both sides’ intentions get muddled and suggested to be traded. Interests are aggregated and handled as a group. The value is shared, and before that, new values are generated. First, the disputing parties must understand each other, the problem, and their ultimate goals before sitting together to work out a solution that maximizes advantages.

SKILLS NEEDED IN NEGOTIATION

A skilled negotiator will know how to use all of the skills listed below to his advantage. Although in order for these skills to be efficient they are needed to be practiced regularly.

• COMMUNICATION: The thing that works like a basic tool, a backbone to negotiation is communication. The negotiation’s outcome is determined by the manner you communicate. It entails recognizing nonverbal clues, choosing the appropriate words, and articulating your ideas in a captivating and interesting manner. It is also said that a great negotiator should use simple language, in other words, not too verbose. An effective negotiation ensures that each party leaves somewhat satisfied and the situation turns into a win-win one.
• PLANNING: Planning effectively before the negotiation guarantees that you are aware of the long-term effects and consequences your choice of words can have on the negotiation conditions. Planning is helpful during the negotiation process and assures that the decision will be carried out successfully.
• LISTENING: A good negotiator is also a good listener. It is essential that a negotiator listens with full attention to know what the other party is trying to achieve. You also need to keep an eye on vocal inflections, body language, tone of voice, etc. to read between the lines. Also, with active listening, you don’t miss out on important information, which creates trust and speeds up the process of reaching a consensus.
• STRATEGISING: A good negotiator always has a strategy which they follow throughout the negotiation session to reach an agreement. There may be times when the other person does not agree with the solution you propose. Good negotiators frequently have one or more backup plans. You should try to imagine all the possible outcomes of the negotiation process.
• PERSUASION: Successful negotiators have the ability to influence other parties. It is tough to justify how your proposal would benefit both parties unless you have strong persuasive abilities. Your ability to persuade the other person will determine whether or not they agree to your proposal.
• EI / EMOTIONAL INTELLIGENCE: What distinguishes a good negotiator from a bad one is their ability to cope with the other party’s emotions as well as keep themselves in check. They need to know how to manage emotions such as anger and sadness. People with high emotional intelligence (EI) can properly sense and communicate their emotions, as well as recognize and utilize the emotions of others to promote solutions.

ADVANTAGES OF NEGOTIATION

• Since only those parties with an interest in the subject and their representatives, if any, are involved in a negotiation, it is perhaps the most flexible method of resolving disputes. The parties are allowed to set the terms of the discussions as they see fit. This allows for increased willingness by both parties to sit down to talk civilly and reach a consensus.
• There is no requirement to use a third-party neutral in negotiations, unlike in mediation where having a mediator is crucial.
• Negotiation will provide the parties with the chance to create an agreement that reflects their interests, supposing that they are bargaining in good faith.
• Negotiation in some cases may lead to an improved relationship between the two parties.
• Negotiation is less costly than litigation and also requires less time to settle disputes.

DISADVANTAGES OF NEGOTIATION

• A thorough grasp of each party’s negotiating mandate is necessary for a negotiation to be effective. A party won’t be able to contribute effectively to the negotiation process if there is doubt about the scope of their negotiating power.
• The lack of a third party is regarded as advantageous, but it might also be a disadvantage. This is because of the possibility of the two parties being entangled in dreadlocks if they are too obstinate.
• Since negotiation is a voluntary process nobody can stop one party from leaving. No party can be compelled to continue negotiating.
• The fairness or reliability of any party cannot be guaranteed via the negotiating process.

CONCLUSION

According to an NDTV report, there are 59, 87,477 cases pending in high courts across the country, and total pending cases amounting to 4,92,67,373 or over 4.92 crore, as per the information available on National Judicial Data Grid (NJDG) on February 1, 2023^[3]. This is a concerning number, our judicial system is overburdened. This is why it becomes important to employ other dispute resolution methods such as negotiation to settle matters. Every human being negotiates at some point in his or her life, on some matter or another, some more effectively than others. And I can say with certainty that negotiation has played a significant role in the advancement of humanity because there would not have been enough peace without it, for individuals to be able to do things. Negotiation has produced the best results of any conflict management strategy. This is due to the fact that it is the most practical and adaptable method for resolving conflicts and interpersonal differences. In this day and age, we should educate more people about the effectiveness of negotiation in resolving legal issues as people still hesitate before turning to negotiation as they fear they have to compromise. This has to be rectified which can only be done with awareness programs

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^[1] Harsh Gopal Khandelwal v. Aarti Khandelwal,2021,SCR 32

^[2] Delhi Jal Board vs Grasim Industries Ltd. & Others, Case no.3 of 2013(Competition Commission of India , 05/10/2017

^[3] Nearly 5 Crore Pending Cases In Courts, Over 69,000 In Supreme Court,ndtv.com, https://www.ndtv.com/india-news/nearly-5-crore-pending-cases-in-courts-over-69-000-in-supreme-court-3768720, last seen on 18/April/2023