S.S.

Jain Subodh Law College

“NEGOTIATION IS BASIS OF ALL ADR METHODS”

Project Submission as per fulfillment of Alternative Dispute Resolution

Submission To: Submitted By:

MS. KANIKA DHAKA Rahul Sharma

FACULTY OF ADR Roll no: - 08
VIII Semester

S.S. Jain Subodh Law College

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 TABLE OF CONTENTS

1. Certificate………………………………………………………………………3
2. Acknowledgement………………………………………………………………4
3. Research Methodology…………………………………………………………5
4. Abstract ……………………………………….....……………..........................6
5. Meaning of Negotiation………………………………………………………...7
6. Characteristics of Negotiation …………………………………………….......8
7. Advantages of Negotiation……………………………………………………..9
8. Disadvantages of Negotiation………………………………………………….11
9. Steps of Negotiation…………………………………………………………….12
10. Approaches of Negotiations…………………………………………………….13
11. Negotiation in India……………………………………………………………..14
12. Trade Union and Negotiation…………………………………………………..16
13. Conclusion
14. Bibliography

CERTIFICATE

This is to certify that Rahul Sharma of VIII Sem of (B.A.LL.B) has prepared and submitted the
project report enclosed with under my direct and close supervision that this is a bonafide piece of

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work done by him. It has not been submitted to any other university or it has it been published at
any time earlier.

MS. KANIKA DHAKA

Signature

ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to MS. KANIKA
DHAKA for inspiring me and guiding me during the course of this project work and also for her
cooperation and guidance from time to time during the course of this project work on the topic.

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JAIPUR (Student sign)

10TH MAY 2016 Rahul Sharma

RESEARCH METHODOLOGY

Aims and Objectives:

The aim of the project is to present a detailed study of the topic “NEGOTIATION IS
BASIS OF ALL ADR METHODS” forming a concrete informative capsule of the same with an
insight into its relevance in Alternative Dispute Resolution.

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 Research Plan
The researchers have followed Doctrinal method.

Scope and Limitations:

In this project the researcher has tried to include different aspects pertaining to the
concept of Negotiation is basis of all ADR methods special attention is also provided on
Alternative Dispute Resolution, basis of object of Negotiation is the basis of all ADR methods,
impact of judicial pronouncements on Negotiation is the basis of all ADR methods and lastly
conclusion.
.
Sources of Data:
The following secondary sources of data have been used in the project-
 Case Study
 Websites
 Case Laws
 Books

Method of Writing and Mode of Citation:

The method of writing followed in the course of this research project is primarily
analytical. The researcher has followed Uniform method of citation throughout the course of this
research project.

ABSTRACT

Negotiation has been defined as any form of direct or indirect communication whereby parties
who have opposing interests discuss the form of any joint action which they might take to
manage and ultimately resolve the dispute between them. Negotiations may be used to resolve an

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already-existing problem or to lay the groundwork for a future relationship between two or more
parties.

Negotiation has also been characterized as the “preeminent mode of dispute resolution”, which is
hardly surprising given its presence in virtually all aspects of everyday life, whether at the
individual, institutional, national or global levels. Each negotiation is unique, differing from one
another in terms of subject matter, the number of participants and the process used.

Given the presence of negotiation in daily life, it is not surprising to find that negotiation can also
be applied within the context of other dispute resolution processes, such as mediation and
litigation settlement conferences.

Negotiation doesn’t have any statutory recognition i.e. through way of legislation. Negotiation is
self-counseling between the parties to resolve their dispute. The word "negotiation" is from the
Latin expression, "negotiatus", past participle of negotiate which means "to carry on business".
"Negotium" means literally "not leisure". Negotiation is a process that has no fixed rules but
follows a predictable pattern. Negotiation is the simplest means for redressal of disputes. In this
mode the parties begin their talk without interference of any third person. The aim of negotiation
is the settlement of disputes by exchange of views and issues concerning the parties. There is an
ample opportunity for presentation of case in this mode of redressal. If there is understanding and
element of patience between the parties this mode of redressal of dispute is the simplest and most
economical. Negotiation is a dialogue intended to resolve disputes, to produce an agreement
upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to
satisfy various interests. It is the primary method of alternative dispute resolution.

CHAPTER 1 : - MEANING OF NEGOTIATION

Negotiation is a interpersonal communication between the parties. In this method there is direct
communication. There is no say of any third party. It is voluntary method and its success depend

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upon goodwill of parties mutual faith and goodwill should be of highest level and parties should
be determinant to settle the dispute peacefully. Relation between the parties remains amicable if
the methods succeed.

Negotiation has also been characterized as the “preeminent mode of dispute resolution”, which
is hardly surprising given its presence in virtually all aspects of everyday life, whether at the
individual, institutional, national or global levels. Each negotiation is unique, differing from one
another in terms of subject matter, the number of participants and the process used.

Given the presence of negotiation in daily life, it is not surprising to find that negotiation can also
be applied within the context of other dispute resolution processes, such as mediation and
litigation settlement conferences.

Negotiation doesn’t have any statutory recognition i.e. through way of legislation. Negotiation is
self-counseling between the parties to resolve their dispute. The word "negotiation" is from the
Latin expression, "negotiatus", past participle of negotiate which means "to carry on business".
"Negotium" means literally "not leisure". Negotiation is a process that has no fixed rules but
follows a predictable pattern. Negotiation is the simplest means for redressal of disputes. In this
mode the parties begin their talk without interference of any third person. The aim of negotiation
is the settlement of disputes by exchange of views and issues concerning the parties. There is an
ample opportunity for presentation of case in this mode of redressal. If there is understanding and
element of patience between the parties this mode of redressal of dispute is the simplest and most
economical. Negotiation is a dialogue intended to resolve disputes, to produce an agreement
upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to
satisfy various interests. It is the primary method of alternative dispute resolution.

CHAPTER 2 : - CHARACTERSTICS OF NEGOTIATION

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Negotiation is:

 Voluntary: No party is forced to participate in a negotiation. The parties are free to

accept or reject the outcome of negotiations and can withdraw at any point during the
process. Parties may participate directly in the negotiations or they may choose to be
represented by someone else, such as a family member, friend, a lawyer or other
professional.

 Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties. They

can range from two individuals seeking to agree on the sale of a house to negotiations
involving diplomats from dozens of States (e.g., World Trade Organization (WTO)).

 Non-adjudicative: Negotiation involves only the parties. The outcome of a negotiation is

reached by the parties together without recourse to a third-party neutral.

 Informal: There are no prescribed rules in negotiation. The parties are free to adopt
whatever rules they choose, if any. Generally they will agree on issues such as the subject
matter, timing and location of negotiations. Further matters such as confidentiality, the
number of negotiating sessions the parties commit to, and which documents may be used,
can also be addressed.

 Confidential: The parties have the option of negotiating publicly or privately. In the
government context, negotiations would be subject to the criteria governing disclosure as
specified.

 Flexible: The scope of a negotiation depends on the choice of the parties. The parties can
determine not only the topic or the topics that will be the subject of the negotiations, but
also whether they will adopt a positional-based bargaining approach or an interest-based
approach.

CHAPTER : - 3 ADVANTAGES OF NEGOTIATION

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o In procedural terms, negotiation is probably the most flexible form of dispute
resolution as it involves only those parties with an interest in the matter and their
representatives, if any. The parties are free to shape the negotiations in accordance
with their own needs, for example, setting the agenda, selecting the forum (public
or private) and identifying the participants. By ensuring that all those who have an
interest in the dispute have been consulted regarding their willingness to
participate and that adequate safeguards exist to prevent inequities in the
bargaining process (i.e., an imbalance in power between the parties), the chances
of reaching an agreement satisfactory to all are enhanced.

o Like any method of dispute resolution, negotiation cannot guarantee that a party
will be successful. However, many commentators feel that negotiations have a
greater possibility of a successful outcome when the parties adopt an interest-
based approach as opposed to a positional-based approach. By focusing on their
mutual needs and interests and the use of mechanisms such as objective standards,
there is a greater chance of reaching an agreement that meets the needs of the
parties. This is sometimes referred to as a “win-win” approach.

o Negotiation is a voluntary process. No one is required to participate in

negotiations should they not wish to do so.

o There is no need for recourse to a third-party neutral. This is important when none
of the parties wants to involve outside parties in the process, e.g., the matter to be
discussed or the dispute to be resolved may be highly sensitive in nature.

o Unlike the outcomes of certain adjudicative processes, e.g., the courts, the
outcome of a negotiation only binds those parties who were involved in the
negotiation. Assuming that the parties are negotiating in good faith, negotiation
will provide the parties with the opportunity to design an agreement which
reflects their interests.

o Negotiations may preserve and in some cases even enhance the relationship
between the parties once an agreement has been reached between them.
o Opting for negotiation instead of litigation may be less expensive for the parties
and may reduce delays.

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CHAPTER 4 :- DISADVANTAGES OF NEGOTIATION

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 1. Failure of communication: - There may be failure of communication and a negotiator
needed to restore the broken communication.

2. Lack of negotiating skills: - Sometimes a negotiator himself may is lacking negotiating

skills as to gesture, knowledge and temperament etc.

3. Lack of legal awareness: - The parties may not differ on outcome but lack of knowledge
may cause failure of negotiation if its violates law of the land.

4. Improper information: - Sometimes a negotiator is not well equipped with relevant

information on the point.

5. Improper representation: - If there is personality conflict that results into failure and in
that situation the proper remedy is to seek a new team of representation.

6. Non – corporation of parties: - Non- cooperative attitude of the parties is a great

impediment to negotiation. It is paramount duty of a negotiator to develop seek and
cooperativeness of the parties.

7. Negative attitude: - It is regarded as an obstruction in the process of negotiation. The

negative attitude causes total breakdown of negotiation. It is an obligation on the part of
negotiator to wipe out the negative approach replace by positive trend.

8. Lack of training: - An untrained negotiator himself is a root cause of impediment in the

process of negotiation.

CHAPTER 5 : - STEPS OF NEGOTIATION

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 1. Preparations : - When a party intends to go for negotiation then a prior homework is
required of what it is to be said how to start how to counter the other party preparation of
documents and as to what demands are to be made.

2. Opening: - It means start a negotiation skillful negotiating skills required and facts are to
be presented.

3. Bargaining: - Settlement terms should be made and week points should not be stressed.
Both the parties should prepare to give and take.

4. Closing : - The terms are finally agreed between the parties then it the stage of
negotiation. Before closing every party should evaluate that whether it has brought what
is wanted and what is ultimate benefit with the settlement of negotiate is complete and
points of settlement is analysed.

CHAPTER 6 : - APPROACHES OF NEGOTIATIONS

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 1. Concessional: - It is a soft approach adopted by negotiator who is not rigid person in
nature and have the belief that by following concessional method the solution of problem
would come out very next step.

2. Problem serving: - In this approach the negotiator focused on tools capable of solving
the problem at the threshold.

3. Distributive: - It is method in which the negotiator makes sure that deadlock or crisis is
distributed according to the respective position of parties. More or less it ensures
involvement of parties.

4. Avoidance: - It is regarded as a negative approach on the part of negotiator and this

approach is adopted by the negotiator who is not prepared to undertake risk. As a result
in this approach issues are not at all addressed.

5. Position : - This approach is also called ‘positional bargaining’ in this process the
parties make extreme claim rather coerce another, so that he gets more benefit than his
opponent at the outcome of negotiation.

CHAPTER 7 : - NEGOTIATION IN INDIA

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Negotiation doesn’t have any statutory recognition i.e through way of legislation. Negotiation is
self-counseling between the parties to resolve their dispute. The word "negotiation" is from the
Latin expression, "negotiatus", past participle of negotiare which means "to carry on business".
"Negotium" means literally "not leisure". Negotiation is a process that has no fixed rules but
follows a predictable pattern. Negotiation is the simplest means for redressal of disputes. In this
mode the parties begin their talk without interference of any third person. The aim of negotiation
is the settlement of disputes by exchange of views and issues concerning the parties. There is an
ample opportunity for presentation of case in this mode of redressal. If there is understanding and
element of patience between the parties this mode of redressal of dispute is the simplest and most
economical. Negotiation is a dialogue intended to resolve disputes, to produce an agreement
upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to
satisfy various interests. It is the primary method of alternative dispute resolution. It is very
much like a sporting event of two contesting wills, complete with advance game plans, strategic
ploys, and bursts of brilliant open-field running. Unlike most contents, though, a negotiation
doesn’t have to end up with a winner and loser. At the end there may not even be a score to tally.
A well-conducted negotiation may allow both sides to win by expanding the total pot, making the
sum for both sides greater than either could possess alone. In the language of academics this is
called “synergy”. Basically the Advocate whenever participates by hearing the brief patiently and
negotiating with the client and required opponent parties, it reflects an impression in the mind of
client or party. In future, despite of the Advocate efforts if the case is in the favour of other party,
there are very less chances to Advocate the loser may not lose the Advocate. The reason is earlier
the concept of ‘Negotiation’. To become a successful negotiator, it needs a refining of several
decades of practical experience and presentations. The person who tastes the success always is a
successful negotiator. In the advocacy approach, a skilled negotiator usually serves as advocate
for one party to the negotiation and attempts to obtain the most favorable outcomes possible for
that party. In this process the negotiator attempts to determine the minimum outcome(s) the other
party is (or parties are) willing to accept, then adjusts their demands accordingly. A "successful"
negotiation in the advocacy approach is when the negotiator is able to obtain all or most of the
outcomes their party desires, but without driving the other party to permanently break off
negotiations, unless the best alternative to a negotiated agreement (BATNA) is acceptable.

Traditional negotiating is sometimes called win-lose because of the assumption of a fixed "pie",
that one person's gain results in another person's loss. This is only true, however, if only a single
issue needs to be resolved, such as a price in a simple sales negotiation. This is nearly always the
case, although often how they go about getting what they want is so delicate it isn’t readily
obvious. The negotiators were in different attitudes as follows:

1. one may be meticulously polite.

2. one may be dull and to the point.
3. one may seem to have been born negotiators.
4. one may be have had to learn to be comfortable in the tug-and-pull of a conflict resolution.

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The important capsule to be successful negotiator is to refuse to be intimidated. Even the odds
are most unlikely, few situations in life are rigidly fixed. Voicing a demand can’t insure success,
but failure to make a request guarantees it won’t be realized. The golden rule to keep in mind, the
mantra upon which to silently meditate as you enter into negotiation, is “Ask and you shall
receive”.

Whenever we need the cooperation of another person to do something, however small, we have
to engross in a negotiation. Almost everything we do-from deciding with a friend where to go to
lunch to buying a new car to interviewing for a job- involves negotiating. The media portray
negotiations as complicated, dramatic affairs involving powerful politicians or mighty business
leaders or high-priced lawyers. But often negotiations involve ordinary folks who, if they felt
less intimidated by the process, would find themselves considerably more empowered in their
lives.

CHAPTER 8 : - TRADE UNIONS AND NEGOTIATIONS

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Specially, in Indian Corporates fields the tussle between the management and trade unions are
considered to be a traditional problem. However this problem can be resolved by means of
negotiation and collective bargaining. Undoubtedly, right to strike or lockout may not taken
away as these are conditionally permitted under Labour/Industrial laws. It is well said that strike
on the part of industrial labour is a part of social weapons in the hands of trade unions. While the
management has equal power to declare lockout under the Industrial Dispute Act, 1947, the trade
unions and management are required to enter into negotiation across the table and resolve their
differences problem through dialogue.

In case of conflict between trade unions and management the process of negotiation should be
initiated and strength and scope of negotiation cannot be ignored. With positive determination
and commitment the trade unions like Hindustan Mazdoor Sabha, Bhartiye Mazdoor Sangh and
All India Trade Union Congress have played a major part in eastablishing industrial peace by
advancing the process of negotiation and collective bargaining.

CHAPTER 9 : - CONCLUSION

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Negotiation is not a the supernatural practice. Nor is it sky rocket science requiring a Ph.D. Rather, it is a
fundamental human act, the process that enables the trading of goods and services, favours and
obligations. Negotiation is the protocol of exchange. If negotiation is going on all the time, most often it
is practiced without conscious attention. Instead of encouraging us to pursue results we desire, our culture
regards the act of bargaining itself as somehow unseemly. It depicts the process as one in which two
people try to take advantage of each other. To identify our objectives and seek to obtain them strategically
is thought to be manipulative. Negotiation to be successful needs strategy and don’t leave leave our
negotiations to chance.

There are few social skills more useful than the ability to negotiate. To deny this is to deny one of the
most fundamental human activities. From the stone age to the 21st Century, history has moved forward
through exchanging, bartering, and buying and selling services and products.

During a negotiation, it would be wise not to take anything personally. If you leave personalities out of it,
you will be able to see opportunities more objectively. Either we're going to solve this by realistic
negotiation or there will be blood on the border. If you come to a negotiation table saying you have the
final truth, that you know nothing but the truth and that is final, you will get nothing. Let us move from
the era of confrontation to the era of negotiation. Negotiation in the classic diplomatic sense assumes
parties more anxious to agree than to disagree. The most difficult thing in any negotiation, almost, is
making sure that you strip it of the emotion and deal with the facts. And there was a considerable
challenge to that here and understandably so. There's no road map on how to raise a family: it's always an
enormous negotiation. Negotiation in the classic diplomatic sense assumes parties more anxious to agree
than to disagree. Let us never negotiate out of fear. But, let us never fear to negotiate. The most difficult
thing in any negotiation, almost, is making sure that you strip it of the emotion and deal with the facts.
And there was a considerable challenge to that here and understandably so. The single biggest danger in
negotiation is not failure but to be successful without knowing why you are successful. Flattery is the
infantry of negotiation. Effective negotiators have a style that those whom they are trying to influence,
relate to and admire. Negotiations are a euphemism for submission if the shadow of power is not cast
across the bargaining table. The ‘Negotiation’ can be invoked at any time, even if the matter is pending in
the Court of Law. Similarly it can be terminated at any time. Finally, the mode of ADR through
Negotiation provides flexible procedure, strict procedure of law is not applicable. It is the option of the
parties to decide their fate and Advocate can also negotiate with other parties for amicable settlement.
Here negotiation is nothing but discussion to arrive to a settlement. This mode can be availed by parties
themselves or on behalf of parties the Advocate can use the weapon of negotiation also.

BIBLIOGRAPHY

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BOOKS :

DR. S.C. TRIPTHI

WEBSITES:

http://www.legalservicesindia.com

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