Introduction:

Gandhiji said: "I had learnt the true practice of law. I had learnt to find out the better side of
human nature, and to enter men's hearts. I realized that the true function of a lawyer was to unite
parties given as under. The lesson was so indelibly burnt unto me that the large part of my time,
during the twenty years of my practice as a lawyer, was occupied in bringing about private
compromises of hundreds of cases. I lost nothing, thereby not even money, certainly not my
soul." 1 Conflict is a fact of life. It is not good or bad. However, what is important is how we
manage or handle it. Negotiation techniques are often central to resolving conflict and as a basic
technique these have been around for many thousands of years. Alternative Dispute Resolution
(ADR) refers to a variety of streamlined resolution techniques designed to resolve issues in
controversy more efficiently when the normal negotiation process fails. Alternative Dispute
Resolution (ADR) is an alternative to the Formal Legal System. It is an alternative to litigation. It
was being thought of in view of the fact that the Courts are over burdened with cases. The said
system emanates from dissatisfaction of many people with the way in which disputes are
traditionally resolved resulting in criticism of the Courts, the legal profession and sometimes lead
to a sense of alienation from the whole legal system- thus, the need for Alternative Dispute
Resolution. With the spread of ADR programs in the developed and developing world, creative
uses for and designs for ADR systems are proliferating. Successful programs are improving the
lives of individuals and meeting broad societal goals. There is a critical mass of ADR experience,
revealing important lessons as to whether, when and how to implement ADR projects. It is
against this backdrop, that this research paper intends to discuss the various ADR mechanisms,
the provisions present in India and the World over, and its peculiarity, implementation and
problems in the Indian context.

What is Negotiation?

Negotiation is a method by which people settle differences. It is a process by which compromise

or agreement is reached while avoiding argument and dispute.

In any disagreement, individuals understandably aim to achieve the best possible outcome for
their position (or perhaps an organisation they represent). However, the principles of fairness,
seeking mutual benefit and maintaining a relationship are the keys to a successful outcome.
Stages of Negotiation
In order to achieve a desirable outcome, it may be useful to follow a structured approach to
negotiation. For example, in a work situation a meeting may need to be arranged in which all
parties involved can come together.
The process of negotiation includes the following stages:

1. Preparation

2. Discussion

3. Clarification of goals

4. Negotiate towards a Win-Win outcome

5. Agreement

6. Implementation of a course of action

1. Preparation

Before any negotiation takes place, a decision needs to be taken as to when and where a meeting
will take place to discuss the problem and who will attend. Setting a limited time-scale can also
be helpful to prevent the disagreement continuing.

This stage involves ensuring all the pertinent facts of the situation are known in order to clarify
your own position. In the work example above, this would include knowing the rules of your
organisation, to whom help is given, when help is not felt appropriate and the grounds for such
refusals. Your organisation may well have policies to which you can refer in preparation for the
negotiation.

Undertaking preparation before discussing the disagreement will help to avoid further conflict
and unnecessarily wasting time during the meeting.

2. Discussion

During this stage, individuals or members of each side put forward the case as they see it, i.e.
their understanding of the situation.

Key skills during this stage include questioning, listening and clarifying.
Sometimes it is helpful to take notes during the discussion stage to record all points put forward
in case there is need for further clarification. It is extremely important to listen, as when
disagreement takes place it is easy to make the mistake of saying too much and listening too
little. Each side should have an equal opportunity to present their case.

3. Clarifying Goals

From the discussion, the goals, interests and viewpoints of both sides of the disagreement need to
be clarified.

It is helpful to list these factors in order of priority. Through this clarification it is often possible
to identify or establish some common ground. Clarification is an essential part of the negotiation
process, without it misunderstandings are likely to occur which may cause problems and barriers
to reaching a beneficial outcome.

4. Negotiate Towards a Win-Win Outcome

This stage focuses on what is termed a 'win-win' outcome where both sides feel they have gained
something positive through the process of negotiation and both sides feel their point of view has
been taken into consideration.

A win-win outcome is usually the best result. Although this may not always be possible, through
negotiation, it should be the ultimate goal.

Suggestions of alternative strategies and compromises need to be considered at this point.

Compromises are often positive alternatives which can often achieve greater benefit for all
concerned compared to holding to the original positions.

5. Agreement

Agreement can be achieved once understanding of both sides viewpoints and interests have been
considered.

It is essential to for everybody involved to keep an open mind in order to achieve an acceptable
solution. Any agreement needs to be made perfectly clear so that both sides know what has been
decided.
6. Implementing a Course of Action

From the agreement, a course of action has to be implemented to carry through the decision.

Steps of a Negotiation
Each negotiation has its own unique characteristics. There is thus no uniform and exclusive
manner governing the organization of a bargaining session. For example, the timing of an offer
and the question of which party is to make the first offer fall within the discretion of the
negotiator and are determined by the overall dynamic of a particular negotiation.

1. Negotiation Session

During any negotiation, the following considerations should be kept in mind:

Concentrate on interests, not positions. Try to focus on the underlying interests of all the
parties, i.e., their needs, desires, concerns and fears, and how they might be
acknowledged and reconciled.
Separate the people from the problem. Avoid blaming the other side for the problem(s)
one has encountered and discuss the perceptions held by each side. Ensure that there is
effective communication between all parties.
Listen carefully and actively to what the other side is saying and acknowledge what is
being said. This can be done through methods such as asking questions and by making
frequent summaries[20].
Try to make the negotiations a win-win outcome by creating options for mutual benefit.
a. There is no need to wait until negotiations have begun, however, in order to
develop these options. They can and should form part of the development of the
negotiating strategy, although they are subject to modification in the course of the
negotiation.
b. Creating these options implies a willingness to look beyond the limits of the
issue(s) in question. Doing this can be achieved through means such as
brainstorming sessions with one's negotiating team. Brainstorming can also be a
joint exercise involving all the parties. These sessions should be structured so as
to allow all participants the opportunity to voice ideas in a non-adversarial and
non-critical environment.
 Use objective standards. Citing objective standards such as legislation or government
policies enables parties to view the issues in rational rather than emotional terms and
facilitates the conclusion of an agreement. There is likely a variety of alternative
objective criteria that could be cited by the parties and, if possible, they should be
identified by each negotiating team prior to entering into the negotiating session.
Evaluate proposals of the other party and the progress of the negotiations in light of the
BATNA (Best Alternative To a Negotiated Agreement). It may become necessary to break
off the negotiations if there appears to be no way of achieving an outcome which is
superior to the BATNA. This can occur when it becomes apparent that the underlying
interests between the parties are irreconcilable or that the other side does not really want
an agreement.
When necessary, feel free to stop the negotiations if there is a need for the members of
the negotiating team to confer on a new development. To avoid revealing the content of
these discussions, the caucus should be held in a private location which is preferably not
visible to the other side.
Stay within the limits of one's negotiating mandate. Ensure that there is constant
communication with the client when acting on the latter's behalf. The same principle
applies when bargaining in the governmental context; before committing the government
to a position Justice counsel must be clear as to the extent of her or his bargaining
authority. More specifically, counsel must be certain that they have received specific
instructions as to whether or not to conclude an agreement as well as the limits of the
mandate, e.g., the limits governing any offer to the other party as well as the degree to
which other options can be offered. As well, any agreement that is reached must respect
existing laws and government policies.
Prepare for the possibility of being confronted with provocative, intimidating, unfair or
deceptive behaviour of a party to the negotiations[21]. At worst, it may become necessary
to end the negotiations, having carefully examined one's BATNA and having concluded
that termination is the preferable course of action.

2. Statutory/Policy Considerations

A negotiator's authority is limited not only by the mandate given by his or her principal or client,
but also by factors that may not be explicitly mentioned in her or his mandate, such as existing
statutes, regulations or government policies.

Justice counsel have a particular duty to ensure that any agreement reached does not breach the
terms of any law or policy directive. For example, the Minister of Justice has responsibility for a
number of federal statutes, including the Access to Information Act, the Canadian Human Rights
Act, the Canadian Bill of Rights, the Commercial Arbitration Act, the Crown Liability and
Proceedings Act, the Federal Real Property and Federal Immovables Act, the Official Languages
Act, the Privacy Act, and the United Nations Foreign Arbitral Awards Convention. These statutes
are cited here only as examples and are not intended to provide a definitive list of federal statutes
to be consulted by Justice counsel. Counsel should examine the relevant federal, provincial or
territorial laws which may be applicable to the particular fact situation or client department.

Any agreement reached between the parties cannot override the terms of the Access to
Information Act, the Privacy Act or the Official Languages Act as these laws are of general
application. Please refer to sections ins Confidentiality: Access to Information Act and Privacy
Act and Official Languages Act: Considerations contained in this Reference Guide for further
discussion.