Dispute Resolution - Law

Topics: Negotiation, Bargaining, Best alternative to a negotiated agreement Pages: 6 (1864 words) Published: March 15, 2014
Negotiations commonly follow a process of "positional bargaining." Positional bargaining represents a win-lose, versus a win-win paradigm. In positional bargaining each party opens with her position on an issue then bargains from the party's separate opening positions to eventually agree on one position. Haggling over a price is a typical example of positional bargaining, with both parties having a bottom line figure in mind. According to Fisher and Ury, positional bargaining does not tend to produce good agreements for the following reasons: 1) It is an inefficient means of reaching agreements.

2) The agreements tend to neglect the other party's respective interests. 3) Ego tends to be involved.
4) It encourages stubbornness thus harming the parties' relationship. Principled negotiation offers perhaps a better way of reaching good agreements. This process can be used effectively on almost any type of conflict. Fisher and Ury developed four principles of negotiation. Four Principles of Good Negotiation:

(1) Separate the PEOPLE from the Problem.
(2) Focus on INTERESTS, not Positions.
(3) Invent OPTIONS for mutual gain.
(4) Insist on using objective CRITERIA upon which to base agreement. Brainstorm for all possible solutions to the problem.
· Evaluate the ideas only after a variety of proposals have been made · Start evaluations with the most promising proposals, refining and improving proposals at this point. · Focus on shared interests, and when the parties' interests differ, seek options whereby those differences can be made compatible or even complementary. · Make proposals that are appealing to the other side and with which the other side would ultimately find ease in agreement. · Identify the decision makers and target proposals directly toward them. The key to reconciling different interests is to "look for items that are of low cost to you and high benefit to them, and vice versa" (Fisher & Ury, 1991, p. 76). Fisher and Ury identify four obstacles to generating creative problem solving options: (1) deciding prematurely on an option and thereby failing to consider alternatives; (2) being too intent on narrowing options to find the single answer; (3) defining the problem in win-lose terms; or (4) thinking that it is up to the other side to come up with a solution to the party's problem. For principled negotiation to work, each party must refrain form blame and acknowledge other attitudes etc. This didn’t always happen – tbp96.3 Might be difficult when neither party has chosen mediation, as is the case here – see tbp98.1

Boulle notes that “conflict is often regarded as being symptomatic of a pathology”1 and it is this approach that seems to obscure the mediation process. Tillet acknowledges that within conflict analysis, the identification stage involves deciding a number of key issues in relation to the conflict, followed by preliminary conflict resolution.2 Tillet stresses that at the beginning of the resolution process, of which generation of options for resolution is a key part, agreement on the problem(s) and the conflict must be agreed upon.3 Boulle supports such a notion, whereby the benefits of employing such a procedure allow the mediator(s) to gain clarity on “what is and what is not in dispute and thereby define the conflict accurately and comprehensively.”4 The premise of the process exists in the ability to subsequently embark on accurate and effective option generation and resolution.

Even though negotiation is often a process of mutual sacrifice, it should also be a process of finding ways whereby both parties will have their interests optimised under the circumstances. Negotiations should not just be about splitting the money, but rather at making more money for all parties concerned. ‘Principled Negotiation’, is about mutual gains and how parties bargain for mutual gain. It also frames the negotiation process as problem solving. Negotiation does not mean that one party dictates or imposes...
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