NEGOTIATION

Abdulmajid Mtukusye
Tutorial Assistant Lecturer At TUDARCO
Introduction
It is a process in which parties to the dispute
discuss possible outcomes directly with each other.
There is no third party to facilitate them but only
parties themselves exchange proposals until an
impasse/dead lock (reach a settlement or no need
to negotiate any further).
It is a process of communication between two or
more parties who have different interests or goals,
with the aim of reaching a mutually accepted
agreement or settlement.
Legal characteristics of
negotiation
 Confidential mechanism
Party autonomy.
Authority to settle.
Informality.
Consensual in nature.
Privilege mechanism
Principle of negotiation
Separate people from the problem: sometimes
participants mistakenly view negotiations as a
competition and a battle of wills, rather than as a
discussion over the terms of an agreement due to
emotions. They can misinterpret what is said.
During negotiations, parties can become angry,
hostile, offended, or frustrated, complicating what
could otherwise be a simple negotiation. When this
happens, the parties may not be able to reach
agreement. The way to diffuse this situation is to
try to separate the people from the problem.
Parties should not attack personality.
Principles…
Focus on interest and not position: This means
during negotiation we should focus on the interest
or substance of the matter. The interests are the
parties’ hopes, fears, desires, needs, wants, etc.
The positions are the parties' specific demands,
requests, offers, etc. Positions are easy to
determine. Parties declare their positions quite
readily. But, interests are more difficult to
determine. Sometimes, parties do not want to
reveal them. More often, parties have not even
considered their own underlying interests.
Principles…
Expand the range of options: If parties are going
to successfully settle a dispute, they need to invent
options for mutual gain. That is to say, parties to
the dispute are not required to come into the
negotiation with their pre-determined options
because it may create a win-lose situation as a
result party may not reach a settlement. Each party
is only concerned with its own interests. A smart
negotiator though, should think about satisfying
the other party’s interests too, since that will be
the only way to reach an agreement.
Principles…
Confidentiality: The parties must be assured that
they can share sensitive information at the session,
where it is necessary to see that their true needs
and interests may be met, without fear of
subsequent disclosure to their detriment. it is
important to understand why parties choose
negotiation for resolving their conflicts. It is said
that one of the main reasons why parties opt for
negotiation is because they want to avoid the
publicity that is typical for litigation, which makes
confidentiality a very essential element of
negotiation
Other principles
Voluntariness
Flexibility
Party autonomy
Trust
Preparation
communication
Approaches to Negotiation
Interest-based approach: Here the negotiator
focuses more on his interest rather than what he is
entitled to under the law. He usually comes into
negotiation with a wide range of options to ensure
that he reaches a settlement and convincing the
other party to accept his offers. Under this
approach, a good negotiator will ensure that he
considers the interest of another side in order to
reach a mutual agreement.
Approaches…..
Right-based approach: Here is where a negotiator
goes to the negotiation to defend or to fight for his
legal rights. The negotiator will mainly focus on
what is provided under the law rather than his
interest and the interest of the other side. Some
negotiators may demand exactly what they would
get in the eyes of the law. This may become very
difficult to reach an amicable settlement because a
negotiator will not come into negotiation with
sufficient options to convince the other side but
rather he will focus on winning.
Approaches….
Power-based approach: in this approach, a
negotiator will use power as a tool to negotiate.
Power based approach is influenced by financial
status, position, age, authority, influence, etc.
therefore a negotiator will opt to use his status as a
threat to compromise a dispute.
Negotiation styles
Negotiation style refers to the personal behavior
the negotiator uses to carry out the strategy that
she/he has chosen. Three main styles of
negotiation have been identified, and these are
usually referred to as cooperative, adversarial, and
problem-solving.
Adversarial Style
Under this style, the negotiator behaves as a tough
and aggressive advocate whose aim is to defeat the
other side. A negotiator may demand one-sided
gains as the price of the agreement, Be hard on the
people, and the problem, apply pressure, Make
threats, distrust others, Stick to his position, etc.
Problem solving style
A negotiator will negotiate with fairness and
reasonableness by separating people from the
problem for the interest of both parties. Here a
negotiator will focus on interests and not positions,
Invent options for mutual gain, and Be soft on the
people and hard on the problem. Here the aim is a
wise outcome reached efficiently and amicably
Cooperative style
The negotiators regard each other as opponents, it
means each party has got its part of interest
however they are ready to work together and
cooperate together but not on the outcome only
on the process. Here Participants are friends and
their aim is to reach an agreement.
Attributes of good negotiator
A good negotiator is one who is;
Persuasive
Good communicator. He must be the one who can
communicate what he wants precisely.
Good listener. This is because a negotiation
process is a two-way traffic then he must listen to
the other side in order to understand the other
side’s interest. This involves noting down important
key points to the negotiation.
Attributes of good negotiator
Good questioning skills. When things are not clear
you should be able to ask for clarification.
Creativity; you should be able to find different
solutions
Patient
Focus on interest and not position
 separate people from the problem
Good reasoning skills
Emotional intelligent
Stages /phases of negotiation
There are two main stages of conducting
negotiation
1st phase : Preparation
2nd phase : Actual negotiation
Preparation phase
Step 1: Research facts and law
Step 2: Establish the client’s aims and
agree strategy(options)
Step 3: Identify the client’s BATNA (Best
Alternative to Negotiated Agreement)
Step 4: Decide what information you need
to obtain and what to give to the other side
Step 5: Plan the agenda
Actual negotiation
This is where now the actual negotiation takes place
and parties engage into a discussion. There is no a
described steps for negotiation but the following are
the major steps/stages in conducting negotiation.
Step 1 Preparation: This is very crucial in negotiation.
The more you know about the subject-matter being
negotiated, the other party’s interest, as well as your
own, the quicker you will be able to adapt to new
negotiating positions. In this way, you will be able to
remain in control of the process throughout
Actual negotiation..
 Step 2 Opening moves. Your opening moves will
largely involve investigating the issues and exploring
the positions of both parties. You will need to express
your views as well as actively listen to the views of
others. It is also worth drawing attention to any flaws
in the other party’s position at this stage.
Step 3 Offers. This is the stage where the most active
negotiation occurs. As you receive and make offers, you
may find yourself having to re-evaluate your position or
repackage your ideas. You need to read the signals the
other party is giving off quickly and accurately. Do not
be afraid to be creative
Actual negotiation..
 Step 4 Narrowing differences. Once the basic
positions of each party have been established, and
offers have been made, the process of narrowing
the differences between the parties can begin. You
will need to consider at this point the priority of
the positions you have taken.
 Step 5 Concluding. As well as reaching and
recording an agreement, this is a time to evaluate
how the process has worked. One matter that is
often overlooked at this stage is to set a date to
review what has been agreed then enforcement.
Bargaining power and its
effects in negotiation
Bargaining power refers to the relative strength of
the parties involved in a negotiation. The party
with more bargaining power is in a stronger
position to influence the outcome of the
negotiation. Here are some effects of bargaining
power in negotiation:
 Outcome: The party with more bargaining power
is more likely to achieve a favorable outcome in the
negotiation. This could be in the form of a better
deal, higher profits, or more favorable terms.
Bargaining power..
Offering Protection Against the Other Party’s Tactics;
Having more bargaining power than your negotiating
partner offers protection against negative or manipulative
tactics they may attempt to use to influence your decisions.
Leverage: The party with more bargaining power has
greater leverage in the negotiation. They can use this
leverage to push for their preferred outcome or to extract
more concessions from the other part
Relationship: The power dynamic in a negotiation can
impact the relationship between the parties. If one party
feels exploited or taken advantage of, it could lead to
resentment or damaged relationships in the future.
THANK YOU ALL