LLB103 Lecture Notes - Lecture 3: Ipad 2, Zopa, Lychee
LLB103 DISPUTE RESOLUTION LECTURE 3
NEGOTIATION
●Lawyers are involved in negotiations daily.
●Lawyers negotiate on behalf of their clients, they negotiate with colleagues and they negotiate
with all the different elements of the legal system.
●Negotiation is a part of virtually every process on the spectrum of dispute resolution.
READINGS
●Chapter 2: Spencer
●Alexander and Howieson (QUT Readings) Chapter 4
A BASIC CONCEPT OF NEGOTIATION
●‘A verbal interactive process involving two or more parties who are seeking to reach agreement
over a problem or a conflict of interest between them and in which they seek as far as possible
to preserve their interests, but adjust their views and positions in the joint effort to reach
agreement’ (Anstey, 1991, p. 91).
○A position is what the party is seeking to achieve and an interest is why they want
what it is that they're asking for. Hence, the interest basically underlies the position.
○ When looking at the definition with a critical eye, one may question, is
negotiation only a verbal process? The answer is no. You can
negotiate in many different ways → this arises problems with this
definition.
○The definition also suggests that for negotiation to occur in must involve two or more
parties. That's interesting because I also think just from the common sense, two
people negotiate with themselves all the time around what it is they’re wanting from a
particular person. That definition could be reworded to capture that as well.
●‘Negotiation involves people with perceived conflicting interests, working towards an
understanding of how best to resolve their differences or reach a deal’
(Alexander, Howieson & Fox, 2015, p. 2).
●In Spencer Chapter 2, he makes the point that negotiation itself is about compromise it's not
about being right or wrong, winning or losing which is an interesting way to think about
negotiation because often when we are in a dispute with somebody else, we are trying to get
what we want and that involves leaving somebody else without something. You get everything
you want and the other party capitulates.
WHO IS INVOLVED IN A NEGOTIATION?
●Direct negotiation: the process where the parties themselves negotiate directly with each
other without any people representing them and without an independent third party or
facilitator.
●Indirect negotiation: the process where the parties themselves negotiate with each other
except have representatives or proxies to negotiate on their behalf with each other (i.e legal
practitioners).
●Assisted or facilitated negotiation: it is negotiation by the presence of an independent third
party neutral. The goal is to facilitate conversation between the two parties in the hope and
settlement is achieved.
Negotiation can be simple depending on what it is that the parties want. If you were
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negotiating with a sibling for example over the last orange in the fruit bowl at home,
that negotiation is fairly straightforward and there are different ways that you can go
about negotiating who acquires that orange. Negotiation is often about money and
again, money can be simple to negotiate. Just like the orange, negotiating of
something that's a fixed resource, the solution is just to split into 50/50, that way they
can walk away with something that they can live with → it is about making wise
judgements (things that aren’t easily split in half such as 1 Kings 3: 16-28).
IN A LEGAL CONTEXT …
●Clients might negotiate together before they approach lawyers or during a legal process.
○ Often that negotiation has gone poorly; something has gone wrong →
This is direct negotiation.
● Lawyers negotiate on behalf of their clients in the client’s absence → This is
indirect negotiation.
●Lawyers and clients negotiate together towards settlement in other dispute resolution
processes. For example:
○Mediation: If the clients do have legal representatives, a client with the lawyer is
working together with the client from the other lawyer on the other side in order to
reach settlement.
○Conciliation:
○Door of the court: When parties file a matter through the court system, they often
have to wait long periods of time for their matter to be processed. In saying that, when
their time comes, they often feel nervous as both parties lose the power for settlement
and instead, the power lays in the hands of an independent third party, the judge. As
a result, both parties tend to back out last minute and this is what this phrase refers
to.
WHY IS LEARNING ABOUT NEGOTIATION IMPORTANT?
●Negotiation knowledge and skills can have a big impact on our clients and mean the difference
between:
○Reaching agreement or not reaching agreement
○Obtaining a fair outcome or an unfair outcome
○ Our client feeling that procedural justice has been served → the client
feels that their case has been presented fairly, accurately (to another
side) and the result has been achieved.
ADVANTAGES OF NEGOTIATION
●Negotiation as a process has a lot to recommended compared to other to dispute resolution
processes. Particularly, the determinative dispute resolution processes which involves an
independent third party making a decision on behalf of the parties.
●A major advantage of negotiation is that the parties themselves are in the best position to
assess proposed solutions. So rather the third party saying this is the result of this case,
perhaps without a full understanding as to how that would impact in the future, when you
negotiate nobody crafts the decision for you. You reach a decision based upon your own
consensus.
●Parties in negotiation process own the process and outcome. Negotiation as a process is
completely flexible and therefore, the parties can choose what that process looks like. They
own the outcome; nobody else is telling them what they should decide and they’re not limited
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as to what to decide in terms of an outcome. An example with the decision that a charge for an
arbitrator might hand out; there are limitations of what it is that they can sensibly say or do. It
may be that one party seeking to a negotiation process is to secure an apology and if that is
achieved, in their mind the case is over. However, a judge does not have the power to
apologise to the other.
●Compromise often offers parties to at least some of what they want rather than being (in some
outcomes) one party winning and the other losing. (NOTE: Court may not give them any of
what they want).
●Parties might not resolve all issues but may narrow them. This may mean that you go into a
more formal dispute resolution process be at mediation or something towards the
determinative end of the spectrum, less time and resources need to be spent on articulating
exactly what is the point of contention between the two parties.
●(Spener, 2016, p. 29-30).
DISADVANTAGES OF NEGOTIATION
There are disadvantages of negotiation as a process:
●The first one is if there is a power imbalance between the two parties which can lead to unfair
or unjust outcomes. Power is the capacity to get things done; it is the power to influence other
people. One party will have more money or more resources at their disposal and have the
ability to punish the other party (or reward if they wish). There is nothing the weaker party can
do about it.
○In processes that are a lot more structured like arbitration, power differentials between
the parties don't matter quite as much. Process protections built in those processes
can stop that from happening but in negotiation one of the downsides of a pretty
flexible open ended process is that power imbalances can manifest and lead to a
substantively unjust outcomes.
●Inept practice or representation, or failure to prepare adequately, can result in a party agreeing
to a settlement outcome below what a court may order.
○A further disadvantage of negotiation arises where the party themselves or the person
representing the party is not a good negotiator. Parties settle upon outcomes that are
significantly lower than what they may have been able to achieve in another forum
like litigation.
FOUR MODELS OF NEGOTIATION
●Adversarial
●Integrative
●Distributive
●Principled
●(Spencer, 2016, p. 36-58)
●Constructive (Alexander & Howieson, ___, 20__).
ADVERSARIAL NEGOTIATION
●Parties seek to maximise victory.
● One party wins the negotiation if the desired outcome is achieved → usually
to the detriment of the other party which is important. One of the assumptions
that underpins adversarial negotiation is that the parties are
negotiating/arguing over a fixed resource.
● A zero-sum game (what one party gains, the other party loses) → (Spencer,
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