Case Study

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• II. Characteristics of a negotiation

Negotiation is:

• Voluntary: No party is forced to participate in a negotiation. The parties are free to accept or reject the outcome of negotiations and can withdraw at any point during the process. Parties may participate directly in the negotiations or they may choose to be represented by someone else, such as a family member, friend, a lawyer or other professional.

• Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties. They can range from two individuals seeking to agree on the sale of a house to negotiations involving diplomats from dozens of States (e.g., World Trade Organization (WTO)).

• Non-adjudicative: Negotiation involves only the parties. The outcome of a negotiation is reached by the parties together without recourse to a third-party neutral.

• Informal: There are no prescribed rules in negotiation. The parties are free to adopt whatever rules they choose, if any. Generally they will agree on issues such as the subject matter, timing and location of negotiations. Further matters such as confidentiality, the number of negotiating sessions the parties commit to, and which documents may be used, can also be addressed.

• Confidential: The parties have the option of negotiating publicly or privately. In the government context, negotiations would be subject to the criteria governing disclosure as specified in the Access to Information Act and the Privacy Act (see confidentiality section). For general information on the privileged nature of communications between solicitor and client during the course of negotiations, please refer to the Department of Justice Civil Litigation Deskbook.

• Flexible: The scope of a negotiation depends on the choice of the parties. The parties can determine not only the topic or the topics that will be the subject of the negotiations, but also whether they will adopt a positional-based bargaining approach or an interest-based approach.

• Preparing for a Negotiation

1. Initial Assessment
The negotiation process begins with a communication or signal from one party to the other indicating a willingness to bargain. Since negotiation is a voluntary process, the first and fundamental step to be taken is to confirm whether or not the other party or parties are interested in negotiations. In making such an assessment, it is important to take into account the following factors: o the desire to resolve the dispute;

o whether a negotiated solution is in the interests of any or all of the parties in question; o the credibility of the other party(ies);
o the willingness of the parties to establish or preserve a relationship; o whether or not there is a disparity between the parties to the extent that it would be impossible to bargain equally, i.e., there is a marked contrast between the parties in terms of the level of education or the resources of the parties; o the desirability of using another form of alternative dispute resolution, such as mediation or arbitration; and o proper authority to enter into negotiations and to reach an agreement or settlement. 2. Contacting the Other Party

Once it has been decided that negotiations are an appropriate course of action, arrangements that must be made with the other parties include: o outlining the agenda and the scope of the negotiations; o fixing the timetable, i.e., whether or not there will be a fixed period for the talks as well as the frequency and the duration of the negotiations; o determining the identity of the participants, ensuring that all interested parties have been consulted; o choosing the locale for the negotiations (preferably a neutral location) and arranging necessary support services; o specifying the official language(s) to be used for the purposes of the negotiations, as well as the...
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