This paper covers certain aspects of mediation and negotiation procedures in this going era of conflict of interest and problems with one another or says between parties unable to reach agreement. Negotiation part will look into- phases of negotiation, negotiation as mixed motive exchange, power of control, approaches to negotiation, adversarial strategy, integrative bargaining, domestic disputes and tool of negotiation. The mediation part will look into – convening for mediation, mediation in a commercial litigation, bankruptcy and mediation, mediation agreement, comparison between different countries having mediations boards or centres.
The need for resolving disputes and insufficiency of the traditional litigative mechanism to adjudicate disputes is obvious. The study and analysis of reasons of delay, in dispensation of justice, will continue till the problem is solved. According to uneven estimate, all pending cases, which go beyond two crores in India, would take a minimum of 324 years for final disposal, provided no new suit or proceedings is filed. Even if we assume this as an exaggeration, the staggering cases in the temples of justice is baffling and the rate of their disposal is very disappointing. What is actually left for the disputants is negotiation and mediation, which are the pure and real alternatives to dispute resolution mechanisms directly or indirectly leading to formal adjudication. There is a need to elaborately discuss the strategies and requirements of negotiation and mediation with greater emphasis on ever lasting solution. This paper contributes in understanding the social context, individual psychology that complicate the problem, party’s capacity, counsel’s interests, long term relations and several other aspects and also that power of negotiation and mediation cannot be understood without knowing what is plaguing litigation, and what is wrong with the procedure law.
Negotiation is one of the main dominant element in the mediation process, and almost of every other dispute resolution processes. Negotiation, being the important component of which it is necessary to be seen as one of the important legal methods of resolving conflicts at any stage, especially when alternative dispute resolution methods is in continuation of being applied in settling international disputes. It is a system of communication designed to reach agreement where two or more parties having certain interests that are shared and certain others that are opposed.
Phases of negotiation
It involves four phases of negotiation which are as follows: –
Preparation phase: Involves information collection. Opulence of preparation generates confidence which gives an edge to the negotiator for example: forum of information prestige evaluation, understand the people involved, plans and significantly knowing the intention.
Opening phase: It involves both parties confer their initial positions to one another. It is vital because it sets the modulation for the negotiation to a large space.
Bargaining phase: In resolving personal dispute, it can be a useful tool to convince the opposite side of the correctness of our demands and then convincing the other party to recognize those demands.
Closure/closing phase: It constitutes the opportunity to exploit the work done in earlier phases. It involves and maintains the agreement in which both parties specify the agreement in a written contract or by letter of intent.
Negotiation as mixed motive exchange
Negotiation, being a complex communication process, is characterized as a mixed motive exchange. Both Parties motives are mingled which are proposed to be exchanged. Their interests are to be combined and inscribe together. The concept of mixed motive exchange, as a basis of negotiation, can be address with following propositions.
There are two options for bargainers to choose from – either to participate or cooperate. The participating bargaining can be required to avoid misuse, while the method of cooperation is needed to maintain relationships. If bargainers consider avoidance of exploitation as the most important priority, then they may begin with the competitive attitude. The competitive negotiator might go for an individual win, where existing value is claimed here by the parties which are different from cooperative bargainer.
For example in resolving personal disputes negotiation always involves a mixed motive exchangethrough as India wanted to achieve peace across the border, if not to stop the fanning of flames of terrorism, as their bargaining goal. Pakistan, too aspires to free Kashmir from India, and increase military pressure till it is achieved. Both want to avoid any possible exploitation from the other side out of political necessities.
Power of control
One of the most important elements in symmetrical mode of decision-making is that command over the outcome lies within the parties themselves, which is then informed only to those concerned and not to others. Power plays a major role in negotiation. In the context of imbalance of power, the weaker party has to give in to the stronger party. But what has to be understood is that negotiation is not just ‘bargaining’ alone. Bargaining could be one essential component of the process, but that itself is not negotiation. In a dispute bargaining coupled with, or based on, the information received, perceptions formed, options studied and conclusions reached, etc., constitutes the wide spectrum of negotiation.
Approaches to negotiation
In settling out personal disputes between the party’s different approaches are to be applied in the process of negotiation that have solution to the problem or relating to the disposal of the dispute when the parties itself are satisfied. The negotiator should keep in mind the purpose and aims of his effort so that he adopts an appropriate strategy. However, there is no strict rule or requirement as to a particular form of strategy to win over the other party depending upon a fixed purpose. The other contradistinctive extreme position is securing the fulfillment of his own interests at the cost of losing the relationship. Disputants who give more value for justice, issues and own interests may have to sacrifice the relationship. Valuing the relationship, placing importance to compassion towards others and positively responding to the other’s interests may sound as ideal situations and also may not be preferred by any of the parties.
The attitudes of negotiator are classified into five categories which are as follows:
For some people, dispute is a risk to be avoided under any circumstances. The negotiator who avoids conflicts loses his calm for value in preference to maintaining valuable relationships, where a negotiator positively responds to the interests and concerns of the opposite party. Avoidance is said to be ‘inaction’ where there is no win situation at all, and persons who prefer inaction do not mind losing. In this process issues are not at all addressed, they are either ignored or postponed or the party simply withdraws from the conflict.
When a disputant decides to sacrifice his interests in goodwill of the other party is called accommodator. He does not assert like the avoiding disputant but is cooperative.
The party in dispute who wants to protect his interest through negotiated means is called competitor. A competing negotiator is opposed to an accommodating negotiator. He always ascertains his rights and interests at the cost of that of the opponent.
This approach provides an outcome which is some improvement over the loose-loose strategy outcome. To have an effective decision, compromiser may be placed somewhere between assertive and cooperative parties. He values expediency and according to the case, he may be willing to accept partial solutions considering both sides are at least minimally satisfied. It shows that the negotiator is at times competitor, works also as accommodator, collaborates to some extent and then avoids the dispute at a particular point of time. He equally values issues, justice and his own interests, placing importance to the response to other’s interests.
Collaboration is the most useful strategy in resolving personal disputes. Collaboration leads to a real win-win situation for both the parties. It is also known as integrative approach. Here the collaborator gives much importance to the issue and his interests as that of the other. The motive of the collaborator is to work with the opposite party to search ways by which both parties can attain their goals. In pursuance of these goals one has to look beyond the issues and limitations within which generally every negotiator works.
So from the above five approaches it clearly states the importance in resolving personal disputes in an effective manner and thus summarizes the value of it the one can achieve and also where the greater a disputant values the issues being bargained, the more likely that party will be perceived as competing rather than avoiding.
The win-lose approach arises when someone expects to achieve his objective at the expense of an anticipated adversary. The main point of negotiation strategy is to wariness others, dig-in the negotiator’s bottom line, appeal one-sided gains as a price of agreement, look for single answers which are acceptable to the negotiator, try to win the contest of will, apply pressure. Wordplay mechanism in adversarial arguments is a method of tackling disputes. Though there are a few deficiencies and limitations in adversarial strategy still it is not an unwanted strategy. The purpose and characteristic of the adversarial strategy can be explained as follows:
- Seeks to maximize gain without regard to how other participants fare, to win as much as can be won by agreement;
- Convert all interests into tangible, measurable terms, typically money or units of production;
- Conflict over limited resources.
Making adversarial negotiation
‘To be adverse’ means being competitive. It has its own advantages and strategic applications. A disputant may make effective initial offers and stick to the stand taken by him in the beginning itself. Any number of offers or counter offers may be made only to justify his initial position and keep him in competition with others. In comparison to problem solving approach, there may be several adverse effects of adversarial negotiation. It may possibly generate competition, there may be a very little room for genuine concern for others, and in order to justify the parties may communicate firmly, which could reflect inflexibility. In this process the party will try to conceal adverse information to manipulate perceptions and resort to deceptive concealment as well. Thus, whether it is adversarial or problem solving approach, it would be, basically, a strategy and the success of such strategy depends upon circumstances and peculiar situations of each and every dispute.
Retaliation as a strategy
In an adversarial strategy and competitive style, the parties generally adopt a retaliate policy to gain a level playing field for taking the negotiation process on expected lines. This process is useful in negotiating substantive issues. But at the same time they may cause breakdown while bargaining issues.
Bargain to distribute
Depending on approach, style and strategy, bargaining takes a definite shape. Bargaining for the value that is fixed and perceived as available is one level, making a sincere effort to enhance the value and aim at more value than what could be expected under ordinary circumstances is the next level. The former is considered s ‘distributive’ and the latter ‘integrative’ bargaining. As the expressions suggest, parties share what is available in the first, whereas, they collaborate in action, integrate the interests, increase the possible benefits, wait for the right opportune moment and stake claim for enhanced benefits, in an imaginative manner in the later. If distributive bargaining reflects the haste of the parties to settle and close the dispute with whatever is available as benefit, the integrative bargain represents a cool patient approach for maximizing gains, which, of course, consume a lot of time.
Significance of opening offer in negotiation
As the opening offer is a significant phase that sets stage for ultimate settlement, the parties either try to make a calculated move or allow the other party to make it. In distributive bargaining, who opens first is also decided the initial stages, as this decides the offer of the defendants. From the first move of the other party, a negotiator having experience and knowledge can estimate the result and its point.
When series of concessions, offered by each party in the negotiation, reach reasonable proximity, with a hope of meeting point, the ‘zone of agreement’ begins. The ‘zone of agreement’ between two parties, according to their own estimates, is denoted. This can be illustrated by a negotiation for purchase of second hand car. Suppose the value of the car is Rs 2 lakhs and the seller wants to gain maximum Rs 2.15 lakhs while the purchaser is trying to get it for just Rs 1.75 lakhs. A, the seller, opens the offer with Rs 2.25 lakhs, which he knows, will not be accepted immediately. He has at least 1.90 lakhs or 2 lakhs as the minimum limit below which he does not want to go. B, the purchaser makes an opening offer of Rs 1.50 lakhs. In this negotiation dance, series of concessions come out, which means the seller will be cutting his price while the buyer raises the bid. Both may consider that a chance to open first would go to his advantage. By doing so, this party puts the opponent in a higher range of proposals.
Zones of assessment
According to the assessment of the parties, the opening offer puts every solution at a zone, which could be impossible zone breaking the process at initial level itself, or reasonable zone or negotiable zone, or zone of agreement etc.
Tactics of negotiation
Negotiation is a matter of strategy. The opening offer sets the course for strategic moves of each party. Manipulating an opponent’s view of reference is an example of a negotiating ploy which results in increasing of success range. On such interesting strategy is opening the deal with a big demand, i.e., making an extreme opening offer, reflecting tough stand with high expectation and indicating that nothing short would be acceptable. Another level of toughness is taking an aggressive stand and stalls the entire process and withholds concessions offered and working till then.
As adversarial negotiation is aggressive and competitive, the integrative method is cooperative and collaborative leaving a lot of scope for problem solving techniques. When options are limited, scope is exhausted, strategies have failed, negotiation may either fail or fall apart. Integrative method is described as cooperative or problem solving or principled or collaborative or integrative distributive strategy. Unlike competitive dispute bargaining, the integrative distributive strategy does not assume the value is fixed. In distributive dispute strategy, one loses while other wins it. While in the integrative distributive strategy resolvers seek ways to see both sides gain with little cost to other side.
Benefits of integrative bargaining
- It is more efficient as in creative process, the negotiators, by focusing on interests avoid loss.
- It results in better agreements.
- It preserves good relations between parties as an efficient bargainer can clear many hurdles in negotiating agreements quickly.
- It reduces the danger that agreement will be repudiated.
- It will result in improved organizational effectiveness.
There are many deficiencies as well. It is based on a presumption that both parties would have a creative approach towards the problem, positive attitude towards interests of all, which may not be the reality. Some parties use it as a strategy to satisfy their ulterior motives, like exacting revenge, to secure more information, etc. It proceeds on an assumption that both parties are equal in dispute, which is not always correct. Depending on the nature of circumstances, facts of dispute, interests of parties and their strengths, integrative bargaining has to be used as a strategy. If this does not happen the parties have to look for alternatives strategies, including adversarial approach.
Domestic disputes and tool of negotiation
Best strategy to resolve domestic disputes will be undoubtedly negotiation between parties directly. The reason is that almost all domestic problems reflect generation conflicts and ego clashes. Conciliation and settlement are statutorily recognized remedial mechanisms in family disputes long before part III of Arbitration and Conciliation Act 1996 was enacted.
The Hindu marriage act, 1955 and the Special Marriage Act, 1954
These two acts impose a duty on the court, in the first instance, to make every endeavor to bring about reconciliation between spouses in any matrimonial suit before proceeding with hearing. If the parties desire or the court deems proper and just, adjourn proceedings to facilitate negotiation or conciliation between the disputing parties.
Code of civil procedure, 1908
The court can or will make all efforts, where possible, relating to the nature and position of the case, by backing the parties in reaching at a settlement in respect of the subject matter of the suit relating to family matters. Any such suit appears before the court and if satisfied or reasons to believe of settlement between the parties, the court will first defer the proceedings of such period deems fit, to facilitate attempts to make such settlement.
Family courts act, 1984
It applies to all suits and proceedings concerning family matters like marriage, guardianship, adoption, legitimacy and maintenance. The preamble of the act indicates the duty to of court to endeavor to end a reconciliation or settlement between the spouses.
Negotiation and trade unions: collective bargaining
Problems between groups or associations have to be tackled by collective bargaining mechanisms. The conflicting interests of trade union members and management of industries can be better reconciled by talks between their representatives under threat of strike, a pressure tactic, to bring down the powerful parties to discussion on the problems or demands. Collective bargaining cannot exist without the right to strike and power to lock out. The resultant agreement will contain the subsequent interpretation and administration of the agreed terms as well.
The incompetent methods of dispute resolution have led to research alternative methods of conflict resolution. In the process of mediation, the unfavorable social behavior is to be welcomed and mediation should be looked as part of process of seal of approval of the poor which stimulate as a part absolute legal aid ideology. The concept of mediation is based on an innate sense of decency and an acceptance of shared values in the community, even as they are imperiled as a result of the conflict. Mediation can be addressed as assisted negotiation, whereas Negotiation may be addressed as communication for agreement. Therefore, mediation is expediting communication for agreement.
Corral for mediation
In this form of communication, the mediator may have to think very delicately the best tactic to bring the parties to table of dialogue. If any of the parties is not willing to send the invitation to the other, it is for the provider to initiate an invitation to the parties. If the parties are adamant about not approaching the opposition, it is for the provider to search for a suitable seat of negotiation in his presence or absence, which prominently does not create problems for either of the parties.
Mediation in a commercial litigation
Commercial litigation mediation emphasizes on minimizing costs in litigation or on picking unbiased arbitrators to resolve important issues such as valuation. In future mediation should be seen as a place to structure relationships whether litigation continues or not. Commercial litigation advantages from early mediation or from repeat mediation sessions than any other area. For example, like: personal injury cases settle quickly like within one day or half day session which might generally fails after negotiation. If the case is mediated at an early stage, the more likely favorable results can be worked out, lower an amount of damages to be worked out.
Bankruptcy and mediation
Mediation process has also been tried and followed in bankruptcy proceedings, with the agreement of the parties. Bankruptcy often has non-zero results, because attorneys have had method of using it solely as the result of successes. It is an area where deferring to mediate, until counsel decide if there is a contest, promptly move forward to mediate. So, bankruptcy law suggests being patient instead of rushing to mediation.
At the end of a successful session of mediation, it may require for writing a rapport on the issues that were earlier mediated and which does not necessarily would be required for every mediation would lead to a formal agreement. It is difficult to have a standard format for agreement, in a likewise mediation procedure, which is dynamic in nature. Aligned to negotiation, the process of mediation takes place in seven stages that builds a congenial atmosphere, trust, and address misunderstandings between parties in such a way that it makes options for unity which reaches at joint solution.
The seven stages of writing mediation agreement
Accurate Identity of parties
It is an important requirement to identify and naming parties whether there are private mediations and those involving companies and institutions. Adding new dimension each of their place and attitudes, the agreement belongs to the parties.
Reflecting the Framework of the Agreement
At the beginning of the formulation of mediation agreement a framework must be established. Parties involved in the dispute having mutual interest to resolve it, framework work it’s to outline relevant points in dispute and also where general statement that resolution as to mediation has been reached. It depends on the party to decide the framework of mediation.
Priority of Interests after Identifying Topics
In a dispute, issues should not only be put with regard to parties and mediators, but for relevance of law and existing practices. It is essential that the mediator with utmost responsibility maintain balance and harmonies of the party’s needs and priorities in context with legal system prevalent of the country or countries involved.
During the mediation process, parties themselves may express the ways in which they want solution for the dispute. A provisional agreement can be made and be configured accordingly. This agreement does not bind the parties when the time classify for a trial basis agreement ends. The agreement helps to simplify the parties, their actual objectives in mediation.
Until and unless the agreement is final, it is always essential to revise and to view the agreement more. Revised formulations are best done with parties individually in a separate meeting. Parties should meet itself and decide which clauses should be including into a final agreement. Addressing important changes and revisions in the agreement can mitigate fear of the parties. It depends upon the revision which shows party’s true intentions if the agreement will stand the test of time.
Reading the Agreement in Open
It is on the mediator to check whether each of the parties has read the agreement distinctly, deems it necessary. The understanding of the agreement is necessary for the parties, in order to confirm the efficiency of the settlements agreed upon. After looking at each section, the mediator should certain that both parties understand the provisions in a way that they have make up their minds to mediate. Clarity among parties is necessary to decide to terminate the agreement by signing the final agreement and comply with it.
The last and final step of the agreement is twofold. First, in order to reach a point, it is important for the parties to sign which a declarative action of closure of the process. Second, the attested signature of parties confirms to their understanding and perception of the final written agreement in a process which they have arrived for best solutions, in view of contextual circumstances. The mediator should express desire of current experience, new found alertness of conflict resolution be internalized in a way that it entrust the parties with motivation and skill to de-escalate and have intention to solve future conflicts.
Comparison between different countries having mediations boards or centres
A slight think tank comparison between different countries has mediations boards or centers which are as follows:
Hong Kong dispute resolution
The international business center, Hong Kong, has institutionalized the process of arbitration, according it the status of commercial court. In 1985 Hong Kong International Arbitration Center (HKIAC), Was established, to assist parties to resolve their disputes not only by arbitration but by other means as well, such as mediation. HKIAC is a non-profit company, funded and organized by the business community and operating under control of council, composed of business and professional people of different nationalities and with a wide diversity of skills and experience.
ADR experience in Australia
Australian experience in ADR involves examination and use of four different programs established in US in an appropriate manner. The new wave of dispute resolution theory has resulted in the emergence of a vast array of dispute resolution mechanisms without affecting the traditional adversarial methods. The traditional adversarial court system has adopted many of the techniques of ADR.
Conciliation in Japan
Japan Experimented with the conciliation process a resolved millions of disputes in the shortest possible time and at lower cost. The parties offer mutual concessions through the conciliation committee, consisting of one judge and two conciliation commissioners, who are people with no specific qualifications. Japan’s experiments with conciliation started in 1922, when it applied this method to resolve cases of land disputes, as well as house disputes relating to house release. At present it is enlarged to all kinds of civil disputes on application of parties and suomotu reference to Conciliators Commission. The conciliators commission has to persuade the parties to make concessions or suggest a conciliatory settlement.
From the above methods and explanation, it is clear that mediation and negotiation plays an important part in one’s personal life as to resolve the matter effectively. With respect to the process of negotiation it is the most adjustable form of dispute where parties show interest in the matter arising out of any dispute. The process of negotiation gives parties to form an agreement which reflects their interests. It preserves and enhances the relation between the parties where an agreement ought to be reached to them. The procedure of Negotiation is also important as it is not much expensive for the parties which results in reduction of delays instead opting for litigation. It may have certain limitations as it does not have legal antecedent, and also it eliminates check on power imbalances between the parties or can be used as stalling tactic. Nevertheless, negotiation is easy and useful method one can approach when there is a dispute.
Whereas mediation is concerned it is an acquainted consent. As long as parties tend to understand the mediation process and completely consent to participate in detailed process. Mediation as a process has advantages like it is free, fair and neutral, avoids litigation, fosters cooperation, tailors made solutions and also involves comprehensive and customized agreements, confidentiality and high rate of compliance. It may have certain disadvantages like the agreement doesn’t always settle between parties in mediation. By applying the finest attempts by the parties the there is always some uncertainty to issue which sometimes may not be resolved after attending mediation sessions or where the parties involved shows inexperience, power, or where resources to have understanding of the process result in unfavourable settlement for the party which lacks the experience, power, or resources to understand the dispute process. But overall, it is seen that the mediation process has established to be effective method for the parties who have complicated issues and desire to continue relationship after the dispute.
 Student, School Of Law, Thenorthcap University, India.
 Facilitating a Settlement, Pepperdine University Institute for Dispute Resolution, 1984, quoted by ICADR, New Delhi.
 Herb Cohen, You Can Negotiate Anything.
 Harvard University Model 1976.
 Michael Tsur, The Art of Writing a Mediation Agreement.
 Tania Sourdin, Matching Disputes to Dispute Resolution Processes-The Australian Context, ADR.