/. %e$ti0i1!te2222222222222222222222222223 4. A15no-#edement2222222222222222222222226 3. Rese!$1" Met"odo#oy22222222222222222222227 6. Abst$!1t 222222222222222.....22222..........................8 7. Me!nin o0 Neoti!tion222222222222222222222...9 8. %"!$!1te$isti1s o0 Neoti!tion 22222222222222222.......* 9. Ad!nt!es o0 Neoti!tion22222222222222222222..; *. Dis!d!nt!es o0 Neoti!tion2222222222222222222.// ;. Ste
%ERTIFI%ATE his is to certif! that R!"u# S"!$m! o0 +III Sem o0 =B.A.LL.B> has prepared and submitted the project report enclosed with under m! direct and close supervision that this is a bonafide piece of
2
wor" done b! him. #t has not been submitted to an! other universit! or it has it been published at an! time earlier.
MS. ANIA DHAA
Sin!tu$e
A%NO?LEDGEMENT # ta"e this opportunit! to e$press our humble gratitude and personal regards to MS. ANIA DHAA for inspiring me and guiding me during the course of this project wor" and also for her
cooperation and guidance from time to time during the course of this project wor" on the topic. 3
JA#P%R
&Student sign'
()* +A, -)(
R!"u# S"!$m!
RESEAR%H METHODOLOG' Aims !nd Ob@e1ties:
he aim of the project is to present a detailed stud! 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.
4
Rese!$1" #!n
he researchers have followed Doctrinal method.
S1o
#n this project the researcher has tried to include different aspects pertaining to the concept of /egotiation is basis of all ADR methods special attention is also provided on Alternative Dispute Resolution0 basis of object of /egotiation is the basis of all ADR methods0 impact of judicial pronouncements on /egotiation is the basis of all ADR methods and lastl! conclusion. . Sou$1es o0 D!t!:
he following secondar! sources of data have been used in the project1 •
Case Stud!
•
2ebsites
•
Case Laws
•
3oo"s
Met"od o0 ?$itin !nd Mode o0 %it!tion:
he method of writing followed in the course of this research project is primaril! anal!tical. he researcher has followed %niform method of citation throughout the course of this research project.
ABSTRA%T
/egotiation has been defined as an! form of direct or indirect communication whereb! parties who have opposing interests discuss the form of an ! joint action which the! might ta"e to manage and ultimatel! resolve the dispute between them. /egotiations ma! be used to resolve an 5
alread!1e$isting problem or to la! the groundwor" for a future relationship between two or more parties. /egotiation has also been characteri4ed as the 5preeminent mode of dispute resolution60 which is hardl! surprising given its presence in virtuall! all aspects of ever!da! life0 whether at the individual0 institutional0 national or global levels. 7ach negotiation is uni8ue0 differing from one another in terms of subject matter0 the number of participants and the process used. 9iven the presence of negotiation in dail! life0 it is not surprising to find that negotiation can also be applied within the conte$t of other dispute resolution processes0 such as mediation and litigation settlement conferences. /egotiation doesn:t have an! statutor! recognition i.e. through wa! of legislation. /egotiation is self1counseling between the parties to resolve their dispute. he word ;negotiation; is from the Latin e$pression0 ;negotiatus;0 past participle of negotiate which means ;to carr! on business;. ;/egotium; means literall! ;not leisure;. /egotiation is a process that has no fi$ed rules but follows a predictable pattern. /egotiation is the simplest means for redressal of disputes. #n this mode the parties begin their tal" without interference of an! third person. he aim of negotiation is the settlement of disputes b! e$change of views and issues concerning the parties. here is an ample opportunit! for presentation of case in this mode of redressal. #f there is understanding and element of patience between the parties this mode of redressal of dispute is the simplest and most economical. /egotiation is a dialogue intended to resolve disputes0 to produce an agreement upon courses of action0 to bargain for individual or collective advantage0 or to craft ou tcomes to satisf! various interests. #t is the primar! method of alternative dispute resolution.
%HATER / : (
MEANING OF NEGOTIATION
/egotiation is a interpersonal communication between the parties. #n this method there is direct communication. here is no sa! of an! third p art!. #t is voluntar! method and its success depend 6
upon goodwill of parties mutual faith and goo dwill should be of highest level and parties should be determinant to settle the dispute peacefull!. Relation between the parties remains amicable if the methods succeed. /egotiation has also been characteri4ed as the 5preeminent mode of dispute resolution60 which is hardl! surprising given its presence in virtuall! all aspects of ever!da! life0 whether at the individual0 institutional0 national or global levels. 7ach negotiation is uni8ue0 differing from one another in terms of subject matter0 the number of participants and the process used. 9iven the presence of negotiation in dail! life0 it is not surprising to find that negotiation can also be applied within the conte$t of other dispute resolution processes0 such as mediation and litigation settlement conferences. /egotiation doesn:t have an! statutor! recognition i.e. through wa! of legislation. /egotiation is self1counseling between the parties to resolve their dispute. he word ;negotiation; is from the Latin e$pression0 ;negotiatus;0 past participle of negotiate which means ;to carr! on business;. ;/egotium; means literall! ;not leisure;. /egotiation is a process that has no fi$ed rules but follows a predictable pattern. /egotiation is the simplest means for redressal of disputes. #n this mode the parties begin their tal" without interference of an! third person. he aim of negotiation is the settlement of disputes b! e$change of views and issues concerning the parties. here is an ample opportunit! for presentation of case in this mode of redressal. #f there is understanding and element of patience between the parties this mode of redressal of dispute is the simplest and most economical. /egotiation is a dialogue intended to resolve disputes0 to produce an agreement upon courses of action0 to bargain for individual or collective advantage0 or to craft ou tcomes to satisf! various interests. #t is the primar! method of alternative dispute resolution.
%HATER 4 : (
%HARA%TERSTI%S OF NEGOTIATION
7
/egotiation is< •
+o#unt!$y: /o part! is forced to participate in a negotiation. he parties are free to
accept or reject the outcome of negotiations and can withdraw at an! point during the process. Parties ma! participate directl! in the negotiations or the! ma! choose to be represented b! someone else0 such as a famil! member0 friend0 a law!er or other professional. •
Bi#!te$!#Mu#ti#!te$!#: /egotiations can involve two0 three or do4ens of parties. he!
can range from two individuals see"ing to agree on the sale of a house to negotiations involving diplomats from do4ens of States &e.g.0 2orld rade =rgani4ation &2=''. •
Non(!d@udi1!tie: /egotiation involves onl! the parties. he outcome of a negotiation is
reached b! the parties together without recourse to a third1part! neutral. •
In0o$m!#: here are no prescribed rules in negotiation. he parties are free to adopt
whatever rules the! choose0 if an!. 9enerall! the! will agree on issues such as the subject matter0 timing and location of negotiations. >urther matters such as confidentialit!0 the number of negotiating sessions the parties commit to0 and which documents ma! be used0 can also be addressed. •
%on0identi!#: he parties have the option of negotiating publicl! or privatel!. #n the
government conte$t0 negotiations would be subject to the criteria governing disclosure as specified. •
F#eCib#e: he scope of a negotiation depends on the choice of the parties. he parties can
determine not onl! the topic or the topics that will be the subject of the negotiations0 but also whether the! will adopt a positional1based bargaining approach or an interest1based approach.
%HATER : ( 3
AD+ANTAGES OF NEGOTIATION 8
o
#n procedural terms0 negotiation is probabl! the most fle$ible form of dispute resolution as it involves onl! those parties with an interest in the matter and their representatives0 if an!. he parties are free to shape the negotiations in accordance with their own needs0 for e$ample0 setting the agenda0 selecting the forum &public or private' and identif!ing the participants. 3! ensuring that all those who have an interest in the dispute have been consulted regarding their willingness to participate and that ade8uate safeguards e$ist to prevent ine8uities in the bargaining process &i.e.0 an imbalance in power between the parties'0 the chances of reaching an agreement satisfactor! to all are enhanced.
o
Li"e an! method of dispute resolution0 negotiation cannot guarantee that a part! will be successful. *owever0 man! commentators feel that negotiations have a greater possibilit! of a successful outcome when the parties adopt an interest1 based approach as opposed to a positional1based approach. 3! focusing on their mutual needs and interests and the use of mechanisms such as objective standards0 there is a greater chance of reaching an agreement that meets the needs of the parties. his is sometimes referred to as a 5win1win6 approach.
o
/egotiation is a voluntar! process. /o one is re8uired to participate in negotiations should the! not wish to do so.
o
here is no need for recourse to a third1part! neutral. his is important when none of the parties wants to involve outside parties in the process0 e.g.0 the matter to be discussed or the dispute to be resolved ma! be highl! sensitive in nature.
o
%nli"e the outcomes of certain adjudicative processes0 e.g.0 the courts0 the outcome of a negotiation onl! binds those parties who were involved in the negotiation. Assuming that the parties are negotiating in good faith0 negotiation will provide the parties with the opportunit! to design an agreement which reflects their interests.
o
/egotiations ma! preserve and in some cases even enhance the relationship
o
between the parties once an agreement has been reached between them. =pting for negotiation instead of litigation ma! be less e$pen sive for the parties and ma! reduce dela!s. 9
%HATER 6 :(
DISAD+ANTAGES OF NEGOTIATION
10
(. F!i#u$e o0 1ommuni1!tion: ( here ma! be failure of communication and a negotiator needed to restore the bro"en communication. -. L!15 o0 neoti!tin s5i##s: ( Sometimes a negotiator himself ma! is lac"ing nego tiating s"ills as to gesture0 "nowledge and temperament etc. ?. L!15 o0 #e!# !-!$eness: ( he parties ma! not differ on outcome but lac" of "nowledge ma! cause failure of negotiation if its violates law of the land. @. Im<$o
%HATER 7 : (
STES OF NEGOTIATION
11
(. $e
?. B!$!inin: ( Settlement terms should be made and wee" points should not be stressed. 3oth the parties should prepare to give and ta"e. @. %#osin : ( he terms are finall! agreed between the parties then it the stage of negotiation. 3efore closing ever! part! should eva luate 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 anal!sed.
%HATER 8 : (
AROA%HES OF NEGOTIATIONS
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(. %on1ession!#: ( #t is a soft approach adopted b! negotiator who is not rigid person in nature and have the belief that b! following concessional method the solution of problem would come out ver! ne$t step. 4. $ob#em se$in: ( #n this approach the negotiator focused on tools capable of solving the problem at the threshold.
?. Dist$ibutie: ( #t is method in which the negotiator ma"es sure that deadloc" or crisis is distributed according to the respective position of parties. +ore or less it ensures involvement of parties. @. Aoid!n1e: ( #t is regarded as a negative approach on the part of negotiator and this approach is adopted b! the negotiator who is not prepared to underta"e ris". As a result in this approach issues are not at all addressed. . osition : ( his approach is also called positional bargaining: in this process the parties ma"e e$treme claim rather coerce another0 so that he gets more benefit than his opponent at the outcome of negotiation.
%HATER 9 : (
NEGOTIATION IN INDIA
13
/egotiation doesn:t have an! statutor! recognition i.e through wa! of legislation. /egotiation is self1counseling between the parties to resolve their dispute. he word ;negotiation; is from the Latin e$pression0 ;negotiatus;0 past participle of negotiare which means ;to carr! on business;. ;/egotium; means literall! ;not leisure;. /egotiation is a process that has no fi$ed rules but follows a predictable pattern. /egotiation is the simplest means for redressal of disputes. #n this mode the parties begin their tal" without interference of an! third person. he aim of negotiation is the settlement of disputes b! e$change of views and issues concerning the parties. here is an ample opportunit! for presentation of case in this mode of redressal. #f there is understanding and element of patience between the parties this mode of redressal of dispute is the simplest and most economical. /egotiation is a dialogue intended to resolve disputes0 to produce an agreement upon courses of action0 to bargain for individual or collective advantage0 or to craft ou tcomes to satisf! various interests. #t is the primar! method of alternative dispute resolution. #t is ver! much li"e a sporting event of two contesting wills0 complete with advance game p lans0 strategic plo!s0 and bursts of brilliant open1field running. %nli"e most contents0 though0 a negotiation doesn:t have to end up with a winner and loser. At the end there ma! not even be a score to tall!. A well1conducted negotiation ma! allow both sides to win b! e$panding the total pot0 ma"ing the sum for both sides greater than either could p ossess alone. #n the language of academics this is called 5s!nerg!6. 3asicall! the Advocate whenever participates b! hearing the brief patientl! and negotiating with the client and re8uired opponent parties0 it reflects an impression in the mind of client or part!. #n future0 despite of the Advocate efforts if the case is in the favour of other part!0 there are ver! less chances to Advocate the loser ma! not lose the Advocate. he reason is earlier the concept of /egotiation:. o become a successful negotiator0 it needs a refining of several decades of practical e$perience and presentations. he person who tastes the success alwa!s is a successful negotiator. #n the advocac! approach0 a s"illed negotiator usuall! serves as adv ocate for one part! to the negotiation and attempts to obtain the most favorable outcomes possible for that part!. #n this process the negotiator attempts to determine the minimum outcome&s' the other part! is &or parties are' willing to accept0 then adjusts their demands accordingl!. A ;successful; negotiation in the advocac! approach is when the negotiator is able to obtain all or most of the outcomes their part! desires0 but without driving the other pa rt! to permanentl! brea" off negotiations0 unless the best alternative to a negotiated agreement &3A/A' is acceptable. raditional negotiating is sometimes called win1lose because of the assumption of a fi$ed ;pie;0 that one personEs gain results in another personEs loss. his is onl! true0 howeve r0 if onl! a single issue needs to be resolved0 such as a price in a simple sales negotiation. his is nearl! alwa!s the case0 although often how the! go about getting what the! want is so delicate it isn:t readil! obvious. he negotiators were in different attitudes as follows< (. one ma! be meticulousl! polite. -. one ma! be dull and to the point. ?. one ma! seem to have been born negotiators. @. one ma! be have had to learn to be comfortable in the tug1and1pull of a conflict resolution. 14
he important capsule to be successful negotiator is to refuse to be intimidated. 7ven the odds are most unli"el!0 few situations in life are rigidl! fi$ed. Foicing a demand can:t insure success0 but failure to ma"e a re8uest guarantees it won:t be reali4ed. he golden rule to "eep in mind0 the mantra upon which to silentl! meditate as !ou enter into negotiation0 is 5As" and !ou shall receive6. 2henever we need the cooperation of another person to do something0 however small0 we have to engross in a negotiation. Almost ever!thing we do1from deciding with a friend where to go to lunch to bu!ing a new car to interviewing for a job1 involves neg otiating. he media portra! negotiations as complicated0 dramatic affairs involving powerful politicians or might! business leaders or high1priced law!er s. 3ut often negotiations involve ordinar! fol"s who0 if the ! felt less intimidated b! the process0 would find themselves considerabl! more empowered in their lives.
%HATER * : (
TRADE &NIONS AND NEGOTIATIONS
15
Speciall!0 in #ndian Corporates fields the tussle between the management and trade unions are considered to be a traditional problem. *owever this problem can be resolved b! means of negotiation and collective bargaining. %ndoubtedl!0 right to stri"e or loc"out ma! not ta"en awa! as these are conditionall! permitted under LabourG#ndustrial laws. #t is well said that stri"e on the part of industrial labour is a part of social weapons in the hands of trade unions. 2hile the management has e8ual power to declare loc"out under the #ndustrial Dispute Act0 (H@B0 the trade unions and management are re8uired to enter into negotiation across the table and resolve their differences problem through dialogue. #n case of conflict between trade unions and management the process of negotiation should be initiated and strength and scope of negotiation cannot be ignored. 2ith positive determination and commitment the trade unions li"e *industan +a4door Sabha0 3harti!e +a4door Sangh and All #ndia rade %nion Congress have pla!ed a major part in eastablishing industrial peace b! advancing the process of negotiation and collective bargaining.
%HATER ; : (
%ON%L&SION 16
/egotiation is not a the supernatural practice. /or is it s"! roc"et science re8uiring a Ph.D. Rather0 it is a fundamental human act0 the process that enables the trading of goods and services0 favours and obligations. /egotiation is the protocol of e$change. #f negotiation is going on all the time0 most often it is practiced without conscious attention. #nstead of encouraging us to pursue results we desire0 our culture regards the act of bargaining itself as somehow unseeml!. #t depicts the process as one in which two people tr! to ta"e advantage of each other. o identif! our objectives and see" to obtain them strategicall! is thought to be manipulative. /egotiation to be successful needs strateg! and don:t leave leave our negotiations to chance. here are few social s"ills more useful than the abilit! to negotiate. o den! this is to den! one of the most fundamental human activities. >rom the stone age to the -(st Centur!0 histor! has moved forward through e$changing0 bartering0 and bu!ing and selling services and products. During a negotiation0 it would be wise not to ta"e an!thing personall!. #f !ou leave personalities out of it0 !ou will be able to see opportunities more objectivel!. 7ither weEre going to solve this b! realistic negotiation or there will be blood on the border. #f !ou come to a negotiation table sa!ing !ou have the final truth0 that !ou "now nothing but the truth and that is final0 !ou will get nothing. Let us move from the era of confrontation to the era of negotiation. /egotiation in the classic diplomatic sense assumes parties more an$ious to agree than to disagree. he most difficult thing in an! negotiation0 almost0 is ma"ing sure that !ou strip it of the emotion and deal with the facts. And there was a considerable challenge to that here and understandabl! so. hereEs no road map on how to raise a famil!< itEs alwa!s an enormous negotiation. /egotiation in the classic diplomatic sense assumes parties more an$ious to agree than to disagree. Let us never negotiate out of fear. 3ut0 let us never fear to negotiate. he most difficult thing in an! negotiation0 almost0 is ma"ing sure that !ou strip it of the emotion and deal with the f acts. And there was a considerable challenge to that here and understandabl! so. he single biggest danger in negotiation is not failure but to be successful without "nowing wh! !ou are successful. >latter! is the infantr! of negotiation. 7ffective negotiators have a st!le that those whom the! are tr!ing to influence0 relate to and admire. /egotiations are a euphemism for submission if the shadow of power is not cast across the bargaining table. he /egotiation: can be invo"ed at an! time0 even if the matter is pending in the Court of Law. Similarl! it can be terminated at an ! time. >inall!0 the mode of ADR through /egotiation provides fle$ible procedure0 strict procedure of law is not applicable. #t is the option of the parties to decide their fate and Advocate can also negotiate with other parties for amicable settlement. *ere negotiation is nothing but discussion to arrive to a settlement. his mode can be availed b! parties themselves or on behalf of parties the Advocate can use the weapon of negotiation also.
