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What is the Role of Justice Counsel in a Negotiation?
What is the Role of Justice Counsel in a Negotiation?
Introduction
Simply put, a negotiator is supposed to advance the interests of the party that he or she represents to obtain an optimal outcome. Beyond this general statement, the functions to be performed by a negotiator will vary, depending on the mandate conferred on her or him by the party.
In the most elementary form of negotiation, two or more parties work to achieve an agreement between themselves. However, the parties can delegate representatives to act on their behalf. These representatives include the following:
members or employees who have been designated by the party in question;
parties (e.g., dispute resolution professionals, lawyers, labour negotiators, etc.) whose services have been retained by the parties because of the negotiating skills of these individuals rather than any involvement on the part of the latter in the dispute or discussion in question.
Role of Justice counsel
The role of Justice counsel in a negotiation will vary with the circumstances and the mandate of the negotiating team. The extent to which Justice counsel will participate in the negotiations will depend on various factors, including whether or not legal issues or issues of mixed fact and law are at stake, as well as whether the client department needs or wants Justice counsel to participate actively in the negotiation. For example, counsel with Legal Services Units work with their clients and on their behalf and help represent their views in various situations, e.g., formulating contractual terms concerning the development of a project. In some cases, the Justice counsel will have carriage of files such as ongoing litigation and may be directly involved in negotiations, e.g., settlement conferences in litigation files.
When negotiating on behalf of the client, counsel must ensure that there is no divergence between his or her negotiating stance and the client's mandate. This is best done by following the client's instructions and providing frequent updates to the client. At other times, client departments may ask the Justice counsel to participate as a negotiating team member. Should the client be present at the negotiations, counsel must determine in advance whether the client will participate in the negotiations. It is crucial for the negotiations that no divergences, real or apparent, emerge between the positions advanced by Justice counsel and those proposed by the client. To avoid any such disclosures, counsel and the client should clarify their respective mandates and formulate a common negotiating strategy.
The choice of negotiating style will also be an important consideration. A competitive negotiator will view the bargaining exclusively in advancing his or her interests and will conduct the negotiations accordingly. However, the cooperative negotiator will consider the issues in a fundamentally different light and attempt to seek common ground with his or her counterpart.
While the role of counsel will depend on the circumstances surrounding the negotiations, she or he is always bound by the principles of professional ethics. For example, the Code of Professional Conduct of the Canadian Bar Association states that when acting as an advocate, the lawyer must treat the tribunal with courtesy and respect and represent the client resolutely, honourably and within the limits of the law. Although no two negotiations are identical, counsel must apply these principles of professional responsibility in each situation. Counsel for the Department of Justice is bound by the provisions of the Department of Justice Act and relevant directives and policies that outline the appropriate role for Justice counsel. Of note is the Treasury Board Contracting Policy, which specifies negotiations as one means of resolving contractual disputes.
Conclusion
Efforts should be made to resolve disputes as they arise, first by negotiating with the contractor. This can be through discussion between representatives of the contractor and the contracting authority or by a more formal review established by the department or agency. Contracting authorities should develop systems that ensure:
• prompt attention is given to disputes;
• unresolved disputes are brought forward quickly to a designated senior level in the department or agency for decision;
• The decision is quickly communicated to the contractor to take further action if so desired.
Counsel should also be aware of all other legislative and government policy requirements, including, for example, the Access to Information Act, the Privacy Act and the Official Languages Act.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts made to ensure the accuracy and correctness of the information published, White Code VIA Mediation and Arbitration Centre shall not be responsible for any errors caused due to human error or otherwise.
- Introduction
- Role of Justice counsel
- Conclusion
