Alternative dispute resolution


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Alternative dispute resolution

  2. 2. TABLE OF CONTENTSCHAPTER ONE: INTRODUCTION TO NEGOTIATION………………………………..4-61.1 Meaning of Negotiation.1.2 Basic Principles of Negotiation.1.3 Stages of Negotiation.CHAPTER TWO: STYLE OF NEGOTIATION…………………………………………..7-102.1 COLLABORATIVE NEGOTIATION 2.1.1 Features of Collaborative Negotiation 2.1.2 Assumptions of Collaborative Negotiation 2.1.3 Risk factors of Collaborative Negotiation 2.1.4 Communication Pattern Followed in Collaborative Negotiation 2.1.5 Disadvantages of Collaborative NegotiationCHAPTER THREE: - COMPETITIVE NEGOTIATION………………………………11-133.1 Meaning of Competitive Negotiation3.2 Characteristics of Competitive Negotiation.3.3Assumption of Competitive Negotiation3.4 Criticism of Competitive NegotiationCHAPTER FOUR: COMPARISON BETWEEN COLLABORATIVENEGOTIATION AND COMPETITIVE NEGOTIATION……………….......................14-15CONCLUSION…………………………………………………………………………………16BIBLIOGRAPHY………………………………………………………………………….17-18 2
  3. 3. RESEARCH METHODOLOGYSTATEMENT OF PROBLEMThe paper aims to study concept of negotiation, what are its different approaches and what isdifference between competitive negotiation and collaborative negotiation and why competitivenegotiation is not an advisable approach of negotiation by stating its criticism.RESEARCH QUESTIONS  What is Negotiation? What are the different approaches of Negotiation?  What is difference between Competitive Negotiation and Collaborative Negotiation?  What are the disadvantages or criticism of Competitive Negotiation?HYPOTHESISCompetitive Negotiation is one of the approaches adopted by Negotiator while solving disputes.But due to its characteristics it is not considered as effective method of negotiation and is notadvisable to adopt this approach in every problem.MODE OF CITATIONA uniform mode of citation is used in this project.METHOD:-The researcher has used Descriptive method of research 3
  4. 4. CHAPTER:-ONENEGOTIATION: - AN INTRODUCTIONNegotiation is among very significant tools of life which is used many times at different stages oflife for the purpose of reaching distinct goals. An individual since the time of his birth, when hecries for his mother‟s milk start negotiating. In negotiation various areas are involved. It may beinclude two or even more than two parties. Negotiations always have a price tag which may ormay not be in terms of money. In case of marital negotiation, social status is price line whereasin case of interview for job, money is the price line1.Negotiation is thus may be defined as an attempt which aims to communicate each other‟s view.For solving a dispute, it is one of the mostly used methods2. Thus, in other words, it is acommunication process, the objective of which is to achieve on mutual agreement by fulfillingdiverse idea and needs. It also implies acceptance between the parties that whatever may be thedecision, it will be implemented between them. It is assemblage of different behavior whichincludes psychology, communication, marketing, assertiveness, sociology and resolution ofconflicts. Negotiator can be any person, he may be boss or employee, a civil servant, buyer orseller, supplier or customer and so on and in case of personal level, it may be between children orparent, friends of spouse3.BASIC PRINCIPLE OF NEGOTIATION4:-There are mainly seven principles which are similar in all kinds of negotiation. They are:-1 Manas Das, Negotiation Skills - Importance & Techniques Article Source, visitedon 1st May 2011.2 Negotiation, visited on 1st May 2011.3 Ken Shah & Prof. Param J. Shah, negotiating skills, visited on 1st May 2011.4 Supra, n.3. 4
  5. 5. 1) Minimum two parties are present in the process of negotiation. In respect of subject matter orin context of negotiation, there must be some common interest which keeps contact between theparties.2) Degree of interest of parties is similar; even then they have different objectives and opinionswhich obstruct solution of problem.3) For solving the disputes, negotiation is considered as a better way for solving the disputes inthe beginning.5) Initially each party thinks to maintain its position as it is and try to modify the position ofother party.6) Each party is under an influence may be real or assumed that it has influence over the otherparty.7) It is that interaction whether direct or verbal between the parties which amount to process ofnegotiation.Process of negotiation may be lengthy and cumbersome sometimes. If there is invitation fornegotiation, the best way sometimes is to point out that requesting party has no standing in thatmatter. One of the principle governing negotiations is that, it should be done only when you areable to obtain certain direct and indirect benefit from it.For successful negotiation focus must be on certain things which are under your control likeemotions, actions and decisions. Clarity about your goal, discipline and correct decision helps inmaking negotiation, a success‟5.CHAPTER TWO:-STYLE OF NEGOTIATION:-5 Effective Negotiation, accessed on 1st May2011. 5
  6. 6. Business people and attorneys do negotiation constantly. Negotiation can be done by them withtheir present and future customers and clients, within organization and also with other parties6.The result of negotiation largely depends upon the approach adopted by negotiator 7. Negotiatorsbroadly apply two styles which are as follows8:-Problem Solving or Collaborative Approach:-“This approach is often called as „enlightened self-interest‟. This approach concentrates onsolving the problem jointly rather than solving at opposite party expense 9”. Behavior ofcooperative negotiator is more pleasant and they try to achieve to agreement which is beneficialto both of them. They look for positive and beneficial solutions together with their cooperativeopponents10.Assumptions in the Collaborative Negotiation :-„There are several opinions about this approach of negotiation. Following are the primaryassumption for the collaborative approach:-1) There is existence of common interest between the parties.2) There is detail discussion upon the interest and perspectives of each participant.3) By way of creativity and intelligence, every complex problem can be resolved11‟.4) In this process of negotiation, both parties gain something in the end12.6 Charles B. Craver, The George Washington University Law School Public Law and Legal Theory Working PaperNo. 328 Legal Studies Research Paper No. 328 Negotiation Styles: The Impact on Bargaining Transactions, Journalof Dispute Resolution 48(April 2003).7 Supra, n.4.8 Supra, n.10.9 Competitive and Integrative Approaches, visited on 1st May 2011.10 Supra, n.10.11 Supra, n.13. 6
  7. 7. 5) Independence of parties is not only enhanced but also recognized13.Collaborative Negotiation -Risk:-„In collaborative negotiation, risk is that it depends upon the general understanding betweenparties and requires both parties to cooperate with each other. If any party is not interested inparticipating in negotiation, then it may prove harmful in following ways:- 1) The feeling of failure comes within the negotiator if they feel to reach any agreement. 2) Information is disclosed by the negotiator but the same is not reciprocated‟.14CHAPTER: THREECOMPETITIVE NEGOTIATION AND ITS CRITICAL ANALYSIS:-In this negotiation, process is considered as competition and which can either be won or lost15.In competitive negotiation, among other things, bargaining session, stating the issues to beformulated are dominated by negotiator. An aggressive attack is made on the position of anopponent and claims of its client are forcefully defended. They believe in leave it or take itphenomenon. This strategy often goes through a competitive and tensed atmosphere16. From theresult of competitive negotiation, one may feel happy but the other party may feel cheated. Thismethod doesn‟t care about rules and adopt aggressive approach. Sometimes even methods ofphysical persuasion are also used17‟.12 Rex Mitchell, Core Negotiation Concepts,, visited on 1st May 2011.13 Id,n.17.14 Supra, n.13.15 Competitive Negotiation,,visited on 1th May 2011.16 Robert M,Bastress Joseph D. Harbaugh, Interviewing, Counselling and Negotiating, Little, Brown and CompanyLimited, U.S.A, April 1990, p.p389-397.17 Supra, n.23. 7
  8. 8. „Strategy of competitive negotiation is basically a manipulative approach which is done in such away so that the opposite parties lose confidence in its own case and ready to fulfill all demandsof competitor. The following are the characteristics of this case:-1) Tension, Pressure and Threats,2) Facts stretching.3) Clear victory wanted.4) High demand..5) Generally used when there is imbalance of Power..6) Usually take place during the period of price negotiation.ASSUMPTIONS OF COMPETITIVE NEGOTIATION18:-There are certain assumptions which universally accepted as reasons behind this approach ofnegotiation. It includes following views:-1) Negotiation is considered as distribution of limited resources.2) If one party wins, other parties have to lose.3) Today‟s deal doesn‟t affect options of tomorrow.CRITICISM OF COMPETITIVE NEGOTIATION:-In claiming existing settled values, competitive negotiation is often very effective but manydisadvantages are attached with this kind of negotiation19.Competitive strategy often results intomuch failure in many respects. Thus, it is highly criticized; following results may occur ifcompetitive strategy of negotiation is followed:-18 Id, n.26.19 Supra, n.26. 8
  9. 9. 1) It hurt relationships between parties, along with anger, distortion of communication, mistrustand breakdowns.20 It is one of the biggest disadvantages of competitive negotiation, that it spoilthe future relationship of parties as one party always end up with great dissatisfaction.2) Expansion of creativity and chances of gain to both the parties are blocked.21 As incompetitive negotiation parties are strict with one opinion they don‟t even think to think beyondthat solution and thus it restrict their creativity.3) Implementation may get undermined. There is possibility of compliance v. commitment.224) Result of confrontation often results into rigidity23. As party is sticked to its position and is notready to consider view of other party which ultimately causes rigidity in the behavior of thatparty.CONCLUSION:-In today‟s world, conflict arises frequently at different facets of life. Due to delays in litigationand to resolve dispute amicably, parties often go for negotiation. It can be done by eitheradopting collaborative method of negotiation which believes in problem solving or by adoptingCompetitive strategy of negotiation. Competitive Strategy of Negotiation is often proof beneficial when there is imbalance ofpower. Due to use of pressure technique, credibility is low and it is often not fair because there isfeeling of competition. Thus, settlement reached by this strategy is often not honored and makerelationship very strainful. As pressure technique is used, it subsequently make person unhappyand today its success rate is also very low that is only 22-25% and it is successful only when oneparty is weaker and desperate to make settlement. Competitive strategy as above mentioned isoften end up by spoiling the relationship between parties and as a result they don‟t enter in anyrelationship in future. It lacks fairness. This strategy is not advisable because of above mentioned20 Supra, n.17.21 Id.22 Id.23 Supra, n.26. 9
  10. 10. reasons as it has bad impact in future and spoils the relation of parties. It is the result of rigidbehavior. As in today‟s world along with other things relations are also needed to be maintained,and thus, competitive strategy cannot be considered as solution of problem rather may due to itsfeature cause further problem between the parties.BIBLIOGRAPHY:-BOOKS:- 1) Bastress M Robert Harbaugh. D. Joseph, Interviewing, Counselling and Negotiating, Little, Brown and Company Limited, U.S.A, April 1990. 2) Hanasi .S. , A critical study of Alternative Dispute Resolution System, Karnataka Institute of Law and Parliamentary Reform, Bangalore, 1st Edition, 2008.ARTICLES:- 1) Competitive and Integrative Approaches, accessed on 1st May 2011. 2) Competitive,Negotiation, tive_negotiation.htm, accessed on 1th May 2011. 3) Craver B. Charles , The George Washington University Law School Public Law and Legal Theory Working Paper No. 328 Legal Studies Research Paper No. 328 Negotiation 10
  11. 11. Styles: The Impact on Bargaining Transactions, Journal of Dispute Resolution 48(April 2003) accessed on 1st May 2011.4) Das Manas , Negotiation Skills - Importance & Techniques Article Source, accessed on 1st May 2011.5) Effective Negotiation, negotiation/ accessed on 1st May 2011.6) Everyone Could Use Some Help with Negotiation, accessed on 1st May 2011.7) Mitchell Rex, Core Negotiation Concepts,, accessed on 1st May 2011.8) Negotiation, Negotiation.aspx accessed on 1st May 2011.9) Negotiation, accessed on 1st May 2011.10) Negotiation, accessed on 1st May 2011.11) Shah Ken & Prof. Shah J Param., negotiating skills, of-Negotiation-in-Organizations.html accessed on 1st May 2011.12) The Competitive Approach, accessed on 1st May 2011. 11