Negotiation: The Skill Underneath Every Other Method

In one line

Negotiation is the parties settling a dispute by talking to each other, with no neutral in the room, and it is the only ADR method with no statute behind it.

In exam wording: negotiation is a consensual process in which the parties to a dispute, by themselves or through their representatives, communicate directly with a view to reaching a mutually acceptable settlement, without the intervention of any third person.

Why a law syllabus teaches a skill

Because it is the one every lawyer uses every week and almost nobody is taught.

Look at the other methods in this book. Mediation and conciliation are negotiation with help. A Lok Adalat is negotiation with a bench encouraging it. Even an arbitration usually ends in a settlement, and section 30 of the Arbitration and Conciliation Act 1996, chapter 370, exists to let the tribunal encourage one. Negotiation is what all of them are made of.

And this is a clinical paper, so the examiner may fairly ask what a lawyer actually does, not only what the process is called.

No statute, and what follows from that

There is no Negotiation Act. Nothing prescribes how it is conducted, who may do it, or how long it takes.

Three consequences, and each is examinable.

Nothing said in a negotiation is protected by any statutory confidentiality. Contrast section 75 of the 1996 Act for conciliation, chapter 580, and section 81, which keeps admissions and proposals out of later proceedings. A negotiation has neither, unless the parties create the protection themselves by agreement or by marking correspondence appropriately.

Nothing that emerges binds until it becomes a contract. Contrast a conciliation settlement, which by section 74 takes the status of an arbitral award, chapter 570; a Lok Adalat award, which by section 21 of the Legal Services Authorities Act is deemed a decree, chapter 120; and a section 12A settlement, chapter 610.

And nobody can be compelled to negotiate, or to continue.

So the whole legal content of this topic is at the two ends: protecting the discussion, and making the outcome stick. The middle is skill.

The two approaches

Distributive negotiation, sometimes called positional or zero-sum. The parties treat the dispute as a fixed quantity to be divided: every rupee one gains the other loses. Each opens high, concedes slowly, and they meet somewhere. Most money-only claims are negotiated this way.

Integrative negotiation, sometimes called principled or interest-based. The parties look behind their stated positions to their underlying interests, and try to find terms that serve both. It works where more than money is available.

The distinction that makes integrative negotiation possible is position against interest. A position is what a party says it wants. An interest is why it wants it. Two parties can have irreconcilable positions and compatible interests, and that gap is where settlements are found.