Published: Wed, 07 Mar 2018
BPTC – Negotiation
Negotiation is a type of conference that aims to achieve the mutual agreement of parties to a case through communication. This can be paper based but invariably it will be face to face. Of prime importance in this area, is an ability to listen and to ascertain the position of the other party whilst being able to express one’s own position effectively. For this to work, common ground between the parties from which to begin the process is required.
Parties may start with different opinions and objectives but they must consider the process the most suitable method to resolve any differences present. In order for the negotiation to be effective, parties must believe that they are in a position to change their own or that of the other, or are ready to change sufficiently to reach a mutually acceptable outcome. Each must have some influence over the other, be it legally or otherwise because if one party is powerless then negotiation is impossible.
Legal negotiation differs from every day negotiation in several respects. The client has a professional person to speak on their behalf rather than them negotiate themselves. It is objective and is governed by legal constraints such as procedural matters. It is vital that instructions are crystal clear so that the practitioner is aware of what can or cannot be accepted. Thorough preparation is also vital, particularly in respect of case analysis.
The practitioner is bound by professional rules and tests and legal rules are applied practically. Negotiation is effective in that it saves money, reduces stress on the client and avoids the need for court appearances. It is not however appropriate in all instances but it is useful in such matters as plea-bargaining and in contract disputes, tort matters and family disputes for example. The process should be fluid and determined by the clients objectives and the analysis of the case. It should be led by the barrister who will be required to listen intently and be prepared to think on their feet within the constraints placed upon them.
There are three main types of negotiation. Competitive negotiation is aggressive and adversarial. An extreme position is adopted to seek the maximum possible gains for the client. Blame can be put on the other party and a degree of intimidation employed in the process. The other party is coerced rather than persuaded. This form is uncompromising and if any concessions are made they are small in nature. This type of negotiation can achieve better gains but does carry a risk of failure. Important issues can be lost and there is also the risk of being penalized in court if the matter progresses to that arena. It can be a technique employed to hide case difficulties but can alienate the client and be stressful on the negotiator.
Cooperative negotiation aims to achieve a firm and fair agreement through reasonable requests. Unilateral concessions are made and shared interests are stressed, as is avoidance of court. Both parties must be ready and willing to share information and although cooperative negotiation is positive in nature it can be time consuming. Agreement can be reached quicker but the process can be complicated however it is more flexible and relationships between parties can be preserved despite a risk of exploitation being present.
Finally, there is collaborative negotiation, which identifies the needs of both parties and seeks joint gains through exchange of information leading to joint agreement. This focuses on party needs with a slight risk of exploitation. It can be uncertain and time consuming. There is no one set style and some lend themselves better to certain situations than others. The key is being aware and applying the most appropriate style.
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