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.
As we all may know, a court dispute can be a long and daunting process. While it may be easy for any person to pursue a lawsuit against another once a dispute arises, however, one should note that this process can be avoided. While the courtroom is known to be the home of justice, it is not the only avenue from which litigating parties may get resolved.
Alternative dispute resolution (ADR), refers to several methods of resolving legal disputes outside the courtroom. Civil courts in Uganda encourage the use of court settlements to litigate parties at any time before a judgment is awarded by the court. Once parties opt to arbitrate or settle disputes through ADR, the court may halt proceedings to enable parties to examine their options.
Peace can not be kept by force, it can only be achieved by understandingAlbert Einstein
There are ideally four methods of alternative dispute resolution. It should be noted that all these methods, though designed to achieve the same goal, are different. These methods are;
This is where parties meet to settle a dispute without a third party. Negotiations give parties to take the wheel and control the process coming to a resolution all on their own. It is quite informal, this leaves room for flexibility as litigating parties conclude.
This form of ADR is controlled by a mediator. A mediator is an individual who has been trained to handle negotiations to help opposing parties work out a settlement that both parties can agree to. Mediation however leaves room for parties to also reject said agreement making this form of dispute resolution informal as well.
Arbitration is formal negotiation and it is quite similar to a court proceeding with less dramatics. The arbitration proceedings are decided on by an arbitral panel or a single arbitrator depending on the agreement of the parties. Arbitration hearings take a few days, the panel will deliberate, after which issue a written binding decision called an arbitral award.
In this process, parties to a dispute use a conciliator whose aim is to meet each party separately and then together make an attempt to resolve their differences. Conciliation however has no legal standing, and the conciliator is under no obligation to write a decision or seek evidence in the matter.
In such a hearing, parties are required to independently create a list of their desired outcomes from conciliation. The conciliator will then go back and forth encouraging each party to give their objectives one at a time.
With all these options, one might be curious to know why they should choose to settle their dispute through alternative dispute resolution. Here are a few reasons why this may be the best option for you;
i) Parties have autonomy over their matters. ADR is private, this means that parties have the opportunity to control the outcome of their dispute coming to a conclusion that will leave both parties satisfied.
ii) It is cheap. While court proceedings can take years to come to an end, ADR doesn’t have that mishap. If parties are unable to agree they are allowed to pursue a resolution from a trial. ADR is cheaper, especially because it’s quicker.
iii) ADR proceedings are more private than a trial. When a court session is in progress, it is hard to limit the audience. ADR on the other hand emphasises the privacy of the parties and their discussions, resolutions are kept confidential.
In Uganda, the Civil Procedure Rules under Order12, Rule 2 provides for Alternative Dispute Resolution, and the Judicature (Mediation) Rules of 2013 made mediation compulsory in all civil matters.
I would advise every person to opt for ADR. I mean let’s leave Will Smithing people and deal with it all calmly. What say you?
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