Introduction - Negotiation

"Freedom is not Negotiable". You cannot negotiate with those who say "what is mine is mine, but what is yours is negotiable" - John F. Kennedy

Negotiation is the most common approach used to avoid, manage and resolve conflicts. Negotiations occur in our daily life between spouses, parents and children, managers and workers, professionals and clients and between private and public agencies and the public.

All of us are compelled to negotiate frequently in our daily life but all of us do not become skilful negotiators. Everyone can draw with a pencil but everyone does not become an artist.

Fundamentals of drawing need to be mastered to enhance artistic talent. Similarly, negotiation dynamics and skills need to be learned to produce the most effective results. The adage 'born negotiator' is only a half-truth.

Not negotiated always

Even though, negotiation is the preferred and the most commonly used method of dispute resolution, it is not the most suitable method in all situations.

As mentioned earlier some conflicts should be allowed to run its course and fretter away. Some other conflicts need to be decisively settled and disputants may prefer adjudication and arbitration. In such cases there will always be a winner and a loser.

Courts or judicially enforceable arbitration awards best decide the disputes relating to the application of Rule of Law.

Arbitration sometimes referred to as private adjudication is increasingly becoming the preferred commercial dispute resolution process due to its flexibility, informality, and the independence and control afforded to parties in an arbitration under the principle of "party autonomy".

The arbitration process unlike litigation is confidential, user friendly and if desired by the parties expeditious.

It is not required in law, for judges and arbitrators to act as mediators to promote negotiated settlement of the litigated disputes.

However, when the disputants themselves negotiate settlements in private or commercial disputes, the court or the arbitral tribunal may enter judgment or make award on the agreed terms.

In fact, Section 11 of the Arbitration Act No 11 of 1995 encourages arbitrators, subject to the agreement of parties, to use mediation, conciliation or any other procedure at any time to encourage settlement.

Section 11 capsulate the "Med-Arb" process that is increasingly used in private dispute settlement in the industrialized world.

Negotiations are not resorted to when disputes result in the gross violation of the law of the land. The Rule of Law demand that violators of public law should be punished as provided for in the law. Anarchy result when the State is unable or unwilling to punish the public offenders.

Negotiations also fail to resolve disputes when parties manipulate the process to buy time or "save face".

In the language of Rubin 1981 "All too often negotiation has been used not in service of moving towards the genuine reduction of differences but as a device, an engineering artifice, a Trojan Horse of sorts that in the name of an amicable exchange of views resorts to bluff, deceit and threat in order to sucker an unsuspecting foe into personally advantageous agreement."

A marriage fractured with matrimonial faults is better allowed to end up in divorce than prolonging the conflictual agony.

Stalemates and third parties

Negotiations take place between or among the parties who have direct interest in the outcome of the dispute. A genuine willingness to negotiate the dispute to avoid a win/lose outcome by resorting to litigation or arbitration or beating or tricking one party into submission is an a priori requirement for a sustainable negotiated solution to a conflict.

According to many experts, (Cohen 1980, Nierenberg 1971, Drukman 1977, Fisher and Uri 1981) parties in an escalated conflict may grudgingly become amenable to negotiations only when the dispute reach a stalemate.

Like all good things, bad things too come to an end. People come to a saturation point in doing so much damage to each other for so long. In order to save face, disputants may continue posturing as committed to continue the conflict to a win/lose end, but the protagonists have secretly understood that unadulterated victory to be unattainable.

The main reasons for the emergence of a stalemate are depletion of resources, renewed commitment to negotiated settlement, failure of contentious tactics, unacceptable costs and the loss of social support for prolongation of the conflict.

When signs of stalemate appear in a protracted conflict one of few things may happen. Despite being proved unsuccessful, the contentious tactics may continue for some more time as the disputants may not be prepared to yield and capitulate.

It is also unlikely that any party may withdraw as 'saving face' continues to be an important factor in stalemated disputes. It is at this stage many disputants grudgingly veer towards finding a solution to the dispute and permit a third party to mediate or facilitate a win/win negotiated solution.

The emotional distrust and adversarial posture and the constituency pressure may continue unabated. The parties may even relapse into manifested contentious tactics.

Disputants may even be unwilling to indicate willingness to negotiate for fear of showing symptoms of exhaustion.

A third party as a mediator or facilitator could play a role only when the conflict reach this no win situation.