ANTHONY CELI

SEMINAR LEADER FRAN GIBSON SEMINAR 12PM THURSDAY

Word Count: 1,029

Negotiation is as common dispute resolution process utilised in today s society. However, due to its ambiguous nature, it is fairly difficult to concisely define. There are several different ways an individual, or in this instance a lawyer, can approach negotiation. These include adversarial, distributive, integrative or principled approaches. Each approach is suitable within differing circumstances; however they may also overlap or coincide. As such it is imperative that lawyers understand how to negotiate and what approach to utilise throughout it as a means of effectively resolving dispute. As defined by M Anstey in Negotiating Conflict: Insights and Skills for Negotiators and Peacemaker1 negotiation is:
A verbal interactive process involving two or more parties who are seeking to reach agreement over a problem or conflict of interest between them and in which they seek as far as possible to preserve their interests, but to adjust their views and positions in the joint effort to achieve agreement.2

Due to the emphasis placed upon doctrinal analysis within legal education and thus the adversarial nature of Australia s legal system, lawyers find it extremely difficult to effectively negotiate. As a result, many lawyers disregard the process, and thus recommend that disputants embark upon litigation. However, due to the fact that litigation often results in high costs, extensive time consumption and an inattention to individual needs, disputants are becoming more inclined to utilise such alternate dispute resolution processes as negotiation. This is exemplified as William Zartman claims that;

M Anstey, Negotiating Conflict: Insights and Skills for Negotiators and Peacemaker (1991, South Africa: Juta & Co) 91-92. 2 nd David Spencer and Samantha Hardy, Dispute Resolution in Australia (Lawbook Co., 2 Edition, 2009) 22.

Ideology is waning, which means that dogmatic formulas, strong feelings of righteousness, black-and-white perceptions, beliefs in historical inevitability, and disinclinations to compromise are all being softened. Instead, people become aware that they share both goals and problems, and that a useful way of achieving separate as well as joint ends is through discussion and bargaining.3

As such, lawyers must diverge from traditional adversarial concepts and embark upon training to better their negotiating skills. This training includes a thorough knowledge and understanding of communicative techniques. These include reframing (ability to capture the essence of what has been said and verbalise it back), open-ended questions (allows to achieve a greater spectrum of the issue), silence (to allow for increased party interaction), active listening, sponging (allowing emotional, irrelevant statements to enhance

understanding) and body language4. It is imperative that lawyers are able to implement these skills as a means of providing for an efficient and effective negotiation. Without such skills it is highly likely that the dispute will not be resolved and thus result in litiga tion. There are four key approaches that lawyers may utilise during a negotiation. These include the adversarial, distributive, integrative and principled methods of negotiation. As such, before any negotiation can take place, a lawyer must utilise their own communicative skills and legal knowledge as a means of selecting the correct approach for their clients. The lawyer must be able to identify the issue/s; implement an approach appropriate for resolving the issue/s; and conduct the negotiation efficient ly and effectively to enable resolution.

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William Ian Zartman, Negotiation and Conflict Management (New York Taylor & Francis Routledge, 2008) 32. nd David Spencer, Essential Dispute Resolution (Cavendish Publishing, 2 Edition, 2005) 23-28

Firstly, it must be understood that although different in approach, each model of negotiation has features to which reflect another. As such, often multiple approaches are utilised without the lawyer even realising. Alternatively, dependant on party responsiveness, a lawyer may transcend from one approach to another as a means of achieving a better result. Adversarial negotiation is an approach that is based upon maximising victory through the establishment of a win/lose scenario (often referred to as a zero-sum game ). An underlying characteristic of this approach is the belief or assumption that the parties in dispute desire the same goals, items or values. As such, this approach focuses upon distributing these factors, with the winner being considered the party that receives the most. This approach is fairly competitive in nature and is characterised by bully tactics, manipulation and deception. Throughout this process, each party establishes its target and resist ance points. Target points refer to the aspirations of each party while resistance points symbolise the most each party is willing to concede. These markers are confidential and as such result in a ritual of offer and demands where each party tests the boundaries of the other. As a result, the outcome is often a compromised solution that has been agreed upon within the combined boundaries of each parties target and resistance points 5. Integrative negotiation is based upon a collaborative approach that se eks agreement through identifying interests and utilising trade -offs and concessions to fulfil them. As such, a notion of additive scoring h as been established that identifies the differing values each individual places upon certain items or concessions. This approach is extremely useful in situations where multiple issues are being dealt with as each party may score these issues

David Spencer and Samantha Hardy, Dispute Resolution in Australia (Lawbook Co., 2 Edition, 2009) 69-74.

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differently. As a result, one party may make concessions on one issue as a means of gaining more on another. Therefore, each party is perceived to win 6. Distributive negotiation, similar to adversarial, is an approach that is based upon the notion that each party involved are generally seeking the same goals, items or values7. As such, each party negotiates upon these factors as a means of receiving a larger portion of the distribution. As a result, the winner is determined by which party receives the most. Principled negotiation is considered the most common approach utilised by disputants. It differs from that of an adversarial approach as it is based upon understanding and considering the interests of each party. Through this understanding it is believed that each party will become more accommodating and respectful of others issues and thus become more objective in regards to establishing an outcome. There are seven key elements associated with this approach. These include interest (considering interests of both parties), options (collaboratively establishing options), alternatives, legitimacy, communication, relationship (attempting to maintain relationships) and commitment (commitment to outcome reached) 8. As such, this approach seeks to achieve a win/win scenario through effective inter-party collaboration. Therefore, negotiation has become a prevalent dispute resolution tool throughout society. As such, it is imperative that a lawyer understands what negotiation is, what approaches can be utilised, and how to implement such approaches as this is paramount to achieving a successful outcome for all parties concerned.

David Spencer and Samantha Hardy, Dispute Resolution in Australia (Lawbook Co., 2 Edition, 2009) 74-7. nd David Spencer and Samantha Hardy, Dispute Resolution in Australia (Lawbook Co., 2 Edition, 2009) 80. 8 nd David Spencer, Essential Dispute Resolution (Cavendish Publishing, 2 Edition, 2005) 31-8.
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BIBLIOGRAPHY A) Articles/Books/Reports Anstey, M, Negotiating Conflict: Insights and Skills for Negotiators and Peacemaker (South Africa: Juta & Co, 1991) Partridge, Mark, Alternate Dispute Resolution (Oxford University Press Inc, 2009) Sourdin, Tania, Alternative Dispute Resolution (Lawbook Co. 2 nd Edition, 2005) Spencer, David and Samantha Hardy, Dispute Resolution in Australia : Cases, Commentaries and Materials (Lawbook Co., 2 nd Edition, 2009) Spencer, David, Essential Dispute Resolution (Cavendish Publishing, 2 nd Edition, 2005) White, Margaret, Let s Be Reasonable: A Guide to Solving Disputes (Choice Books, 1997) Zartman, William, Negotiation and Conflict Management (New York Taylor & Francis Routledge, 2008)