Your lawyer or if there is a conciliator can assist you to move through three stages by focusing on:
1. Opening up channels of communication;
2. Using the channels of communication to develop bridges of understanding between the parties of each other’s perceptions of the dispute and their respective strengths and weaknesses;
3. Structuring a negotiated resolution of the dispute.
The first two stages - communication and understanding - overlap to a greater or lesser extent.
Both are directed towards enabling the parties to discuss their dispute, to exchange views and thus more fully to understand their own and, very importantly, the other party’s points of view.
A party is free at any time to end a negotiation simply by announcing they are withdrawing.
This does not involve any adverse consequence such as having to pay costs or being prejudiced by anything that may have been said, or even tentatively agreed, in the course of the discussions.
If the negotiation succeeds the parties ordinarily sign a legally binding document setting out the terms of settlement of the dispute.
Oral settlement agreements should not be used as they can themselves give rise to disputes.
Rarely, the parties prefer not to enter into a legally binding settlement agreement, but to re-build their relationship having achieved a satisfactory understanding regarding the matters in dispute.
If the negotiation does not succeed neither party’s rights are not affected in any way.
In the significant majority of cases the parties reach a negotiated settlement. In the small number of negotiations that fail are some in which, even though no settlement has been reached, the discussions clarify and narrow the issues in dispute.
Ultimately it is for the parties to decide what settlement they can accept rather than pursuing whatever other courses that may be open to them.
Each party has to ask itself whether the available negotiated outcome, although disappointingly worse than it had hoped for, is nevertheless an outcome it can live with, rather than pursuing other courses open to it.
The often mentioned ‘win win’ ordinarily comes not from the terms of the settlement but rather from the fact that the settlement enables both parties to put the dispute behind them.
You will see that I do not mention anything about mutuality or happiness; rather what is more often achieved is a settlement that both parties will live with rather than are happy about.
Negotiation is about you and the other person expressing your views in an organized manner to attempt to achieve an agreed outcome.
Negotiation should be planned and thought through. You need to consider what is your best position, what is your worst position so that you can compare and put offers on the table bearing in mind three things:
What could I get?
What should I get?
What must I get?
In entering into any negotiation determining the could, should and must of your position is essential. Without knowing what these things are you are not in a position to compare offers on the table.
Steven Brown is Chairman of Etienne Lawyers. Visit www.etiennelaw.com
