INTORUDUCTION

Negotiation is the act of entering into compromise and conciliation agreements with the
opposing party in order to settle the issue or controversy, without resorting to a full blown trial for the
same end1. Negotiation is the act or conduct of negotiating with the opposing party in order to reach a
settlement2. It pertains to the mode of bargaining with others in order to reach an agreement3. It covers
procurement and arrangement as to conclude by mutual discussion an agreement4.

In negotiation, the depth and the complexity of such is equally dependent upon the depth and
complexity of the issue at hand. The more adverse the issue is, the more likely that negotiation be less
benevolent and complex. Negotiations, in this case, will not likely be so benevolent, especially so when
one claims to have been damaged by the other action and disclaims any responsibility or fault5. In such
cases, the conduct of each party is likely to vary with the conduct of the other; their negotiations will
then be conducted with more caution and reserve6.

Resorting to negotiations depends upon the subject matter in issue. Usually, negotiation is not
resorted to in criminal cases. It is done only at the option and consent of the defendant. In civil cases
however, negotiation through pre-trial is mandatory as provided by the rules of court. Haggling
negotiations then, will tend to become more unlikely to be resorted to with the increase in the size of
the transaction and the sophistication of the parties7. Nonetheless, when the point to be settled is the
value of goods or services or damage to person or property as in civil cases, negotiations are conducted
more often than not, and such is done by proposals and counter proposals to reach out a middle ground
which is acceptable to both parties8. Negotiations are generally resorted to through intermediaries such
as lawyers, especially so when the matters to be decided to are complex or involve points of law in
which lawyers are presumed to be the best9.

In negotiation, the primary task of the lawyer is to reduce the friction that is already in existence
between parties. In reality, the cases which confront opposing parties are not clear cut. It involves
multiple and overlapping interests. Thus, the objective of the lawyer is to negotiate with the opposing
party in order to reduce the issues and reach to those points which are beyond compromise and which
will consequently be resorted to in trial. The lawyers task, therefore, becomes one of reducing the
friction in a complex of competing interests10.

1
Magno, Julius. Helping the client without court trial: Negotiation, Conciliation, and Compromise. 2003.
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LOYALTIES OF LAWYERS WHEN IN NEGOTIATION

When in the act of negotiation with the opposing party, the lawyer must keep in mind where his
loyalties lie, which is first and foremost to his client11. This duty calls for competence and zeal and
fairness in handling the interests of his client, unimpaired by competing loyalties to other persons12. The
lawyer must also be loyal to the administration of justice13. The lawyer is first and foremost a fighter and
a defender of justice, and in the pursuit of his profession, the lawyer must always be directed towards
the attainment of justice. The lawyer also owes loyalty to the community in which he is in14. Such loyalty
to the community involves the function of advancing justice through the laws, and the improvement of
the machinery for the administration of justice15. Lastly, the lawyer must be loyal to his associates in
practice, and to himself16. The lawyer, in this case, must be guided by his ethical standards as a man, so
he will not violate them in his professional work17.

LEGAL FRAMEWORK

The legal environment in which the lawyer must work with when in the act of negotiation are
threefold. Number one, the lawyer must act in accordance to the tenets of the constitution which states
a speedy disposition of their case; a speedy and impartial trial18. Section 16 of Article III, the Bill of
Rights, provides that all persons hall have the right to a speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies19. Subparagraph 2 of Section 14 of the same article,
provides for the accuseds right to a speedy, impartial, and public trial20. Second, the lawyer must be
guided by the rules laid out in the rules of court when in the act of negotiation21. The rules of court lay
down the instances when pre-trial and pre-trial conferences shall be resorted to both in civil and
criminal cases22. The rules of court provide that pre-trial is mandatory for civil cases, and optional with
the consent of the accused in criminal cases23. In civil cases, pre-trial covers the following matters: 1)
the possibility of an amicable settlement, 2) the simplification of issues, 3) desirability or necessity of
amendments to pleadings, 4) the possibility of obtaining stipulations or admissions of facts and of
documents to avoid unnecessary presentation of proof, 5) limitations on the number of witnesses, 6)
resort to preliminary conference, 7) such other matters as may aid in the prompt disposition of the
action24. In criminal cases, pre-trial shall only be proper where the accused and his counsel agree, the
subject of which are the following: 1) plea bargaining, 2) stipulation of facts, 3) marking for identification

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of evidence of the parties, 4) waiver of objections to the admissibility of evidence, 5) such other matters
as will promote a fair and expeditious trial25. Lastly, the lawyer must act according to the rules laid out
by jurisprudence when in negotiation26. In the case of Andres v. Cacdac, the court defined speedy trial to
mean that the accused is free from vexatious, capricious, and oppressive delays, its salutary objective
being to assure that the innocent person be free from the expense of court litigation, or of otherwise of
having his guilt determined within the shortest possible time.27

HISTORY

Ever since civilization began and communities have been established, negotiation has always been part
of human existence. Each one of us, young and old, has some experience on negotiating. With this, we
have evolved and thrived as a community. It is said that of all the modes of conflict management,
negotiative processes are the most flexible, efficient, economical and eminently sensible in the human
repertoire for managing issues, differences, and controversies.28 Whether it be in the simplest societies
or those filled with technological advancements, negotiation will always be a part of a growing society.

According to author Robert Benjamin, there are notable five approaches in the evolution of negotiative
behavior:

1. Primal Negotiation
This was the all against all world Thomas Hobbes described in The Leviathan (1651). Similar in
purpose, the focus of this negotiation approach is to serve the human instinct to survive and
every war or hostile action must be brought to an end if that is to happen. This primal form of
negotiation is largely unschooled and more reliant on visceral instinct than a planned, overtly
conscious activity.29

2. Strategic Negotiation
The active use of strategic thinking, conscious and intentional planning directed toward
manipulating people and circumstances to bring about a desired outcome became a core
element of negotiation in the course of the 16th Century Renaissance. This period was
tumultuous with the Catholic Papacy instigating wars against many of the Italian city-states,
while, at the same time, other foreign powers were also battling for influence and control.
Political and military alliances shifted continuously. This time was also a period of burgeoning
commerce and economic growth with the accompanying political intrigues which required
people to develop a heightened awareness of the actions and motives of those around them
and to assess who were potential allies and who were enemies. Shakespeares play, The
Merchant of Venice, as well as Nicolo Machiavellis The Prince are perfect examples of literary
device which conveys strategic negotiation in their plots.30

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28 Benjamin, R. (2012, June). The Natural History of Negotiation and Mediation: The Evolution of Negotiative Behaviors, Rituals, and Approaches. Retrieved from
http://www.mediate.com/articles/NaturalHistory.cfm
29 ibid
30 ibid
3. Early Modern Rationalist Negotiation
As a result of the Scientific Revolution of the 17th Century and the subsequent Enlightenment
of the 18th Century, how people in the Western cultures viewed the world around them shifted
dramatically. The quest for the truth, previously pursued by and through religious faith, was
supplanted by a faith in reason, and now began to be pursued by and through rational thinking.
Negotiative behavior and practice came to be viewed as a rational enterprise.31

Current day negotiative practice and teaching has drawn heavily from the culture of science
and Enlightenment thinking. The belief in Rational Decision Making Theory remains prevalent;
many practitioners still presume people to be rational actors who, if given the opportunity, will
predictably make decisions out of their calculated self-interest. Many of the terms used to
describe negotiation and mediation practitioners and practice are quasi scientific in origin. The
mediator, for example, is referred to as a neutral, impartial and objective third party, and
practitioners think of themselves as analytical problem solvers.32

4. Modern Techno-Rational Negotiation

This was seen in the mid 20th Century, after World War II in the wake of Hiroshima and
Nagasaki nuclear attack, the principles of the earlier rationalist negotiation approach were
studied with renewed vigor and intensity. The nuclear threat congealed into the geo-politics of
the Cold War that pre-occupied much of the world as either players or pawns, between 1949
and 1989. There is no question but that it was fertile terrain for those interested in negotiative
processes; people suddenly became serious about exploring alternatives.33

Negotiation began to be approached as science. The process was effectively militarized and
industrialized. Game theory and computer modeling were wed to the study of negotiation and
warfare strategy. Academic and military think tanks, one of earliest of which was the Rand
Corporation in 1948, were formed to study, among other things, war and negotiative strategies.
They postulated the doctrine of Mutually Assured Destruction (MAD), perhaps the ultimate
refinement of the primal negotiation tactic of the ultimatum.34

5. Post-Modern Rationally-Irrational Negotiation

The present day conflicts and issues are more complex and level of antagonism between people
more strident than at any time in recent memory for three reasons: 1) many of those issues
present wicked problems that are difficult or impossible to solve because of incomplete,
contradictory, and changing requirements that are often difficult to recognize and often
harbor unintended consequences; 2) both the experts and people in general feel a loss of
control; and 3) people are more becoming more aware that reason and rational problem solving
methodologies, as they have traditionally been applied, are insufficient.35

Much of the structuring, and many of the strategies and techniques of the rationalist approach
to negotiation and mediation are slowly being reconsidered in light of neuroscience and
cognitive psychology. For example, following the familiar legal structure, many mediations

31 ibid
32 ibid
33 ibid
34 ibid
35 ibid
 begin with each party presenting an opening statements of their position. While this follows the
rationalist approach, this model encourages posturing and tends to solidify the parties in their
positions. The result is a rational tactic that leads away from agreement and is, therefore,
effectively irrational. The post-modern approach offers a more calculated technique for
managing the discussion that does not force the parties into a pre-set rigid structure.36

36 ibid