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Negotiation, Mediation and Arbitration
NEGOTIATION SKILLS
Most of us deal with some or other negotiation every day of our lives. The paralegal will constantly be involved in negotiating on behalf of clients.
WHAT IS NEGOTIATION?
Negotiation takes place when two or more people or groups who have a conflict come together to agree on how best to resolve this conflict. This might mean that one side must compromise.
Usually it means that both sides compromise so that they can reach a settlement. This is called a ‘win-win’ situation.
HOW DO YOU NEGOTIATE?
The main purpose of being a negotiator is to get the best settlement possible for yourself or for the person or group that you are representing. To do this, a negotiator needs certain skills, such as:
- Finding out facts and information about the other side before you start negotiating
- Knowing what questions to ask
- How to create the right atmosphere for successful negotiation – if you are too aggressive too early in the negotiation, this will create a very tense atmosphere.
- Knowing how much to tell the other person or group – for example, you should not give too many details too early in the negotiation as this gives the other person or group an advantage over you.
- Knowing when to put your proposals to the other person or group
- Controlling your attitude towards the other side – all kinds of different emotions, prejudices, different values and cultures can affect your attitude towards the other side. This can make it harder for you to communicate properly with them.
Example
A union official negotiates with the manager of a farm about the right of employees to join the union. The union official is very emotional because the manager is threatening to dismiss the employees. The union official also believes that the manager is not concerned about the employees and that he is cruel and immoral. The manager is also very emotional. He believes that the union official is trying to take over the farm. He is worried about financial losses and believes that as soon as employees join a union, they will go on strike. He believes that all employees are lazy and only want money to spend on alcohol. In this example, there are many conflicting emotions, prejudices, and values between the two sides. This will affect negotiations between the two parties.
PREPARING FOR NEGOTIATIONS
The following points are a guide to planning and preparing for a negotiation.
| STEPS IN PLANNING AND PREPARING BEFORE NEGOTIATION | |
| IDENTIFY THE ISSUE | Background and context – Analyse the background and context of the issue. Each issue has its own particular background and history that is important to know and acknowledge in a negotiation. Power and positions of the parties – Look at the power and positions that the different parties will have in the negotiation you are preparing for. For example, a municipality wants to build a road through a town. To do this it needs to move people living there. The people are not prepared to move until the municipality finds them acceptable alternative land. The municipality has the power of its official position, and it has the power of the law behind it (under the Constitution, property can be expropriated in certain circumstances). The community also has the power of the law (they cannot be arbitrarily evicted from the land or be evicted without a court order). The community also has the power of large numbers. |
| DEFINE YOUR OBJECTIVES | Work out your key points and what you want to achieve in the negotiation. |
| BE CLEAR ABOUT YOUR MANDATE | As a paralegal, you will be representing either a person or a group in negotiations. You must know what your mandate is from that person or group. In other words, you must know exactly what they want and how much they are prepared to compromise. |
| SELECT A TEAM | Select a negotiation team. It is usually better to have more than one person in a negotiating team. |
| GET TO KNOW THE OTHER SIDE | You need to have as much information as possible about the people in the party you are negotiating against. For example, you need to know what their interests and needs are in the issue, their strengths, weaknesses, problems and pressures. |
| PLAN YOUR PRESENTATION | Organise all the information you have gathered in a logical format so that it can be used in the negotiation. |
| STEPS IN THE PROCESS OF NEGOTIATION | |
| PARTIES MEET | The parties meet, and they acknowledge a problem exists. Each party states the reason (as they see it) for the negotiation. |
| EXPLORING THE ISSUES | The negotiation moves into the issues, and parties say what their needs and interests are. This is the exploration phase, where the parties ask lots of questions and acknowledge the common points. |
| BARGAINING PHASE | Parties move into the bargaining phase, where they start to look for possible solutions or options for solving the problem. During this phase, the parties may even start moving closer together and there may be a feeling of working together to solve a common problem. Negotiation does not always mean that parties have to be aggressive towards each other. For a negotiation to end in an agreement, one side must show that it is ready to ‘move’ or compromise. |
| REACHING AGREEMENT | The parties reach an agreement. At this point you may need to take the agreement back to the person or group on whose behalf you are negotiating. If the agreement falls within the mandate you were given, then you can make a final agreement. |
| REPORT BACK TO THE GROUP | You will always need to report back to the person or group you were representing to tell them what the outcome of the negotiation was. |
| PUTTING THE SETTLEMENT INTO PRACTICE | Once you agree to something with the other side, then you must make sure that the agreement is put into practice. |
Example of the stages of the negotiation process
NEGOTIATING TO GET AN EMPLOYEE’S JOB BACK
You are representing an employee who has been dismissed. You have to negotiate with the manager of the company where she was working.
GETTING A MANDATE
The employee wants her job back and asks you to represent her. You have to stay in touch with this person throughout and get a new mandate if there are changes.
PREPARING AND PLANNING FOR THE NEGOTIATION
Find out all the details about the dismissal of the employee. Find out how many warnings she received in the past, her length of service, what her job was, whether she was a member of a union, why she thinks she was dismissed, etc.
Find out about the company, the name of the manager, whether the company has a reputation for treating its employees badly, and so on. Plan what you are going to say to the manager when you telephone.
MEETING OR CONTACTING THE OTHER SIDE
You telephone the manager. You explain who you are representing, and the reasons for your telephone call. You ask for the manager’s side of the story. You explain that the employee wants her job back. The manager refuses but makes you another offer – for example, that she will be paid out for the notice period plus leave due and will be given a positive reference. This is called a counter-offer.
You do not have a mandate to accept this. You tell the manager that you must go back to the employee.
GOING BACK TO THE PERSON OR GROUP YOU ARE REPRESENTING
You go back to the employee and explain what the manager has offered. (If you think it is a good settlement, you can try to encourage the employee to accept it.) If the employee accepts the offer, you telephone the manager again and say that you agree to the company’s offer.
PUTTING THE SETTLEMENT INTO PRACTICE
You immediately write a letter to the company confirming your agreement.If the company does not keep to its side of the agreement, you must meet again with the employee and decide together what you are going to do.
MEDIATION
Where two conflicting parties cannot reach an agreement on the issue causing the conflict, they can agree to ask a third party (a mediator) to help them reach a solution. A mediator is a person who acts as a facilitator between the parties but does not make a decision about who is right or wrong. So, a mediator is not a judge.
The mediator goes on to assist both sides until the parties themselves come to an agreement. If it is clear that the parties are not going to reach an agreement, the mediator might have to withdraw from the process. The parties will then have to find another way to resolve their conflict, for example, by using arbitration or going to court. (See: Settling disputes outside of court)
The main job of a mediator is to keep the parties in the negotiation communicating with each other. To do this the mediator must get the trust and confidence of both parties and keep this trust by always being objective. The mediator must try to find out exactly what the problem or conflict is about. When the two sides meet together, the mediator must encourage both sides to be realistic about what they want from the other side and what they are prepared to give.
If you are representing a person or group at a mediation you need to prepare for the mediation in the same way as for a negotiation.
Examples of issues where you can use mediation
CONSUMER COMPLAINTS
You can use mediation or arbitration to solve consumer complaints. For example, a second-hand TV which you bought breaks down completely after a month. The company that you bought it from refuses to fix it. It is too expensive to go to court, so you could ask the company to agree to call in a third party to act as a mediator between you and the company. This is a cheaper and much quicker way of solving the problem.
DISPUTES IN THE COMMUNITY
Community or neighbourhood disputes such as those between different political groups or landlords and tenants.
THE CRIMINAL COURTS
In some cases, mediation could be used to bring the person who committed the crime together with the victim of the crime to see whether they can reach any agreement as an alternative to laying a criminal charge.
EDUCATION
Disputes between students and teachers, students and administrators, parents and administrators, and so on.
ENVIRONMENT
Disputes between communities and authorities, for example, about dams, waste disposal, land development and so on.
FAMILY OR DIVORCE MATTERS
Family and divorce disputes.
PLANNING A MEDIATION SESSION
You should be flexible when you plan a mediation session. For example, a more informal mediation between two neighbours needs a different approach compared to a mediation between a consumer and a company. On the next page is an example of a mediation session. This example is for a formal mediation session around a conflict between two organisations, parties or groups. You need to allow time for translation, for each side to caucus (speak among themselves), or to give the mediator time to meet both sides separately. (See: Checklist: Mediation code of conduct; See: Checklist: Tips for mediators)
ARBITRATION
In an arbitration, a third party, acceptable to both parties, is called in to help the parties resolve the conflict. The difference between an arbitration and a mediation is that in an arbitration, the arbitrator is called on to make a decision about who is right or wrong. In other words, the arbitrator acts like a judge. The arbitrator chairs the hearing at which both parties are present, listens carefully to both sides of the story, listens to any witness, and looks at any documents which might be produced as evidence. They then go through all the evidence and decide who wins the arbitration. The arbitrator writes down the reasons for their decision in a judgement and gives this to the parties.
Before the arbitration takes place, the parties should agree in writing on the parameters of the arbitrator’s powers. For example, will the arbitrator’s decision be final, or will there be a right of appeal? Usually the parties agree that the decision of the arbitrator is final. This means the parties must obey this decision, and the losing party cannot appeal against the decision. An arbitrator should use proper legal principles to interpret the evidence, but the arbitration process is not as formal as in a court. (See: Arbitration by the CCMA or Bargaining Council)
