Negotiation as a form of Alternative Dispute Resolution
Alternate Dispute Resolution (ADR), mainly denotes a wide range of dispute resolution processes that act as a means of disagreeing parties to come to an agreement without using the means of litigation. It is a collective term which refers to the ways in which the parties can settle disputes, with the help of a third party. It is also known as external dispute resolution (EDR). ADR has gained widespread acceptance among both the general public and the legal profession in the recent years and is also being adopted as the means to help settle disputes alongside court system itself. Apart from arbitration and mediation, the other form of ADR that has been on a rise is Negotiation.
Negotiation may be defined as any form of direct or indirect communication through which parties who have conflicting interests discuss the form of any action which they might take together to manage and ultimately resolve the dispute between them. Negotiations may be used to resolve an existing problem or to lay the groundwork for a future relationship between two or more parties. It must be noted that there is no compulsion for either of the parties to participate in the process of negotiation. The parties have the free will to either accept or reject the decisions that come out of the process of negotiation. There is no restriction in the number of parties that can participate in the process of negotiation. They can vary from two individuals to the process involving dozens of parties. Unlike arbitration and mediation, the outcome of a negotiation is reached by parties together without resorting to a neutral third party. The process is flexible and informal also ensures confidentiality at the choice of the parties.
In terms of procedure, negotiations is probably the most flexible form of dispute resolution process because it involves only those individuals or parties who are interested in the matter. They shape the process of negotiation as per their own needs and at their own convenience. The chances of reaching a mutually acceptable agreement is high in this process since the acceptance by all the parties is ensured. Since the process of negation uses the interests-based approach instead of the generally used positional-based approach, it provides a greater possibility of a successful outcome. As mentioned above, there is no compulsion for either of the parties to participate in the process which makes negotiation a voluntary process. Once an agreement is reached between the parties, negotiation may also enhance the relations between them. Apart from all of this, opting for negotiation over litigation may also reduce the number of delays and turn out to be less expensive as well.
However, negotiation has some disadvantages as well. Though negotiation provides a greater possibility of a successful outcome, if the parties are unequal the those in a weaker position may be placed at a disadvantageous position. The parties may terminate the process whenever they wish to during the proceedings, this may cause a huge loss of time and money invested in the process. Negotiation does not ensure the good faith and trustworthiness of either of the parties. It must also be mentioned that some issues may not be amenable to negotiation.
Despite all its disadvantages, negotiation is still on a rise as a medium for resolving disputes. It is definitely a much more time and money saving process the litigation. It is high time that the process of negotiation be used globally as a means for resolving disputes after working on its disadvantages.