Alternative Dispute Resolution in Kenya: Negotiation

Negotiation is any form of communication between two or more people for the purpose of arriving at a mutually agreeable solution.  In a negotiation the disputants may represent themselves or they may be represented by agents and whatever the case, whether they are represented or not represented, they have control over the negotiation process.  When attempts are made to settle matters out of court involves negotiations

There are two extreme styles of negotiating. there is what is referred to as the competitive bargaining style and co-operative bargaining style or hard bargaining and soft negotiating. 

The competitive negotiators are so concerned with the substantive results that they advocate extreme positions.  They create false issues, they mislead the other negotiator, they even bluff to gain advantage.  It is rare that they make concessions and if they do, they do so arguably, they may even intimidate the other negotiator. 

Cooperative negotiators are more interested in developing a relationship based on trust and cooperation they are therefore more prepared to make concessions on substantive issues in order to preserve that relationship.

Is negotiation a dispute resolution mechanism that can be applied in all kinds of situations?  Are there disputes that will not be necessarily resolved by negotiations?  There are certain disputes that negotiations would not perhaps assist.

In as far as hard bargaining is concerned, the perceived advantages would be

1.                   The hard negotiator is likely to get a better substantive especially in circumstances where such a negotiator is negotiating with a co-operative negotiator;

2.                  If a negotiator is a professional negotiator i.e. one who is called upon to negotiate on behalf of parties, he is likely to develop a reputation which will be useful in future negotiations;

3.                  The competitive negotiator is not open to easy manipulation;

4.                  A negotiator of that style is also likely to take initiative and to take a lead role in negotiations;

Disadvantages

1.                   The solution that comes out of such hard negotiations is likely to be a fragile one and therefore not long lasting so the other party is likely to come out of the negotiations feeling like maybe they gave too much and this may create ill feelings;

2.                  The competitive or hard negotiator may by reason of his approach fail to take an opportunity to reach a good deal because of the attitude that he must have his way and a good deal may be put on the table which he does not look at as he does not want to compromise.bbb

3.                  It may harm the relationship; it may also create misunderstanding by the fact that the interests of the party maybe compromised.

4.                  The competitive bargainer or negotiator is unlikely to be aligned to the concerns of the other party because the emphasis is no compromise.

SOFT NEGOTIATING STYLE

ADVANTAGES

1.                   Sustaining relationships or good long term relationships;

2.                  A deal or compromise will be reached when there is a deal to be made;

3.                  From the perspective of a professional negotiator, it is more likely that people will want to deal with you.

4.                  A compromise is likely to be reached sooner and to work quickly either to agree or disagree.

DISADVANTAGES

1.                   A good deal may be lost or the opportunity for a good deal may be lost because the negotiator by the end of the process may feel that they give more than they should have;

2.                  There is the possibility of manipulation by the other party.

3.                  The negotiator may be taken advantage of by the other party;

4.                  The party may want to get out of the deal later so he may feel sorry and try to get out of the deal.

5.                  In the case of a professional negotiator, a cooperative negotiator may not get a very good name e.g. compromises too much which may not be good for business.

In each of these two styles and based on the mentioned disadvantages, the negotiators are more focussed on their respective positions than with their interests and to try and reap the advantages of both the cooperative and competitive bargaining style, Roger Fisher and William Ury came up with a project at Harvard Law School and developed what they referred to as principled negotiations.

Principled negotiations require negotiators to focus on the interests of each of the disputants with the goal of creating satisfactory options for resolution which may be assessed by objective criteria.

Principled negotiation seeks to take advantage of both cooperative and competitive styles and avoid the pitfalls or the disadvantages of the two styles.