“State the steps in negotiation process. Elaborate the differences and similarities of litigation and arbitration”

 The essay focuses on the various steps involved in the process of negotiation and it also discusses the similarities and difference in arbitration and litigation. Negotiation is where you or your solicitor tries to agree how to resolve the dispute with the other party. Negotiation involves two or more parties who need (or think they need) each others involvement achieving a desired outcome. There is a common interest that connects the parties. Although it is considered right to express oneself in a democratic country it is often seen that people are being suppressed and not allowed to express themselves in public.

 Further in the essay. We have discussed that there are certain similarities and difference of arbitration and litigation are discussed. Hopefully my research on the topics mentioned above would be satisfactory you and would meet up the desired information and research that were expected.

Table of Contents

 

Page

  1. 1.   Abbreviations

4

  1. 2.   Introduction: Negotiation

5

  1. 3.   Barriers to negotiations

7

  1. 4.   What is Litigation?

9

  1. 5.   What is Arbitration?

10

  1. 6.   Arbitration vs. Litigation (Tabular form)

13

  1. 7.   Conclusion

14

  1. 8.   Bibliography

15

Introduction: Negotiation

Bottom of Form

Negotiation is where you or your solicitor[1] tries to agree how to resolve the dispute with the other party. Most legal cases are resolved through negotiation, and it is generally beneficial to try this route before making a court claim. Negotiation is far less formal than court proceedings. The other parties decide the outcome of their disputes by themselves. Negotiation can be used before a court claim, or even after starting the claim and before the court makes its decision.

Negotiation may not be suitable if the time limit for making a claim is very close, or if a legal decision is needed because the law is unclear. Even so, there would be opportunities to negotiate up to the time the court makes its decision.

Characteristics of Negotiation:

  • Negotiation involves two or more parties who need (or think they need) each others involvement achieving a desired outcome. There is a common interest that connects the parties.
  • The parties start with different opinions or objectives. It is these differences that prevent agreement. The parties are willing to co-operate and communicate to meet their goals.
  • The parties can mutually benefit or avoid harm by influencing each other.
  •  The parties realize that any other procedure will not produce desired outcome.
    The parties think that negotiation is the best way to resolve their differences (or at leas, a possible way)
  • They also think that they may be able to persuade the party to modify their original position.
  • Even if they do not get their ideal outcome, both retain the hope of an acceptable outcome.
  • Each has some influence real or assumed over the others actions. If one party is completely powerless, negotiation will have little point for the other.
  • The negotiation process itself involves interaction between people. This interaction might be in person, by telephone, letter etc. or it might use a combination, because it is personal, emotions and attitudes will always be important.

Article Source: http://EzineArticles.com/1671981

The difference between negotiation and mediation

 

In negotiation, solicitors act for their clients to broker a solution, whereas in mediation a neutral mediator works with all parties (who may each have their own solicitors) to assist them to reach a solution. Mediation may be used where negotiation has reached deadlock.

The difference between negotiation and collaborative family law

 

Solicitors engaged to help in family cases usually try to negotiate a solution, but if that doesn’t work they may represent their clients in a court claim. In collaborative family law, the parties agree to try to reach a solution without going to court and, if they can’t, the specially trained solicitors they use are not allowed to help with a court claim.

It’s not essential to use a solicitor for negotiation, but it is common. Many people prefer to use a solicitor to negotiate on their behalf because solicitors are familiar with the technique, have legal training and are highly regulated. Solicitors usually try negotiation before advising you to go to court, and they can also advise on other methods of resolving disputes.

Even if you choose to do the negotiation yourself, you should seek legal advice so that you know your legal position, which may be complex. Remember that the other party may be using a solicitor. Solicitors must explain at the outset the likely cost of negotiation, and how it compares with going to court. They must also advise you about help with paying your legal costs through legal aid.

Barriers to negotiations

  • Die hard bargainers

It is at times difficult to deal with people who are not easily attainable. They tend to enforce their choice and wants over the second party which prolongs the negotiation process and creates unavoidable and indecisive circumstances.

  • Lack of trust

Another barrier to negotiation is the lack of trust of one party over the other. Since negotiation is not a complete formal/ legal activity, it is often seen that a party is not interested in dealing with another due to lack of trust or confidence over the other party.

  • Informational vacuums and the negotiator’s dilemma.

There are certain stages where negotiators have doubts in their mind about certain aspects of a deal and are not expressive about it. In such situation the entire process is delayed resulting in confusion and misunderstanding.

  • Structural impediments.

Sometimes the structural factors of a nation or area or background play a huge role in negotiation. Parties thus find it difficult to accept or deal with certain formalities or rituals to negotiate wisely.

  • Cultural and gender differences.

Cultural believes and norms often create discrepancy between parties. It is natural that a group of different that believe in different religion, social norms, culture or race have difficulties in understanding ones believes and thoughts which are more important socially than global acceptance.

  • Communication problems.

Difference in language creates communication problems too. Sometime the claims or warnings are misinterpreted which raises few more problems.

What is Litigation?

Litigation[2] covers the process of bringing and pursuing a lawsuit, and encompasses the entire procedure. A lawsuit is a case or controversy authorized by law, to be decided in a court of justice, brought by one person or entity against another person or entity for the purpose of enforcing a right or redressing a grievance. The participants in these proceedings (plaintiff, defendant, applicant, petitioner or respondent) are called litigants while the trial or case is ongoing. Attorneys[3] who represent the litigants in court are referred to as litigators[4]. Although in some instances an attorney is required to litigate; in most matters, parties are allowed to represent themselves should they chose to do so.

However, litigation involves many complex legal issues which require expertise and knowledge of the law that governs the dispute, as well as the laws governing the procedures to be followed while litigating a case. Litigation is one way that people and corporate entities resolve disputes. The parties rely on a judge or jury to determine a legal question or matter. The term litigation is sometimes used to be distinguishable from alternative dispute resolution (ADR) methods, such as mediation or arbitration

 

What is Arbitration?

 

Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal“), by whose decision (the “award“) they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.[5] Other forms of ADR include mediation[6] (a form of settlement negotiation facilitated by a neutral third party) and non-binding resolution by experts. Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. The use of arbitration is also frequently employed in consumer and employment matters, where arbitration may be mandated by the terms of employment or commercial contracts.

Arbitration can be either voluntary or mandatory and can be either binding or non-binding. Non-binding arbitration is, on the surface, similar to mediation. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable.

 

Differences between Arbitration & Litigation Process

You may have encountered an arbitration clause in a contract and wondered what it is and whether you should be happy or upset about this clause. Or a colleague may have suggested to you that you include an arbitration clause in a contract, and you are wondering why this would benefit you. Arbitration as a process is very different from the process of litigation (trying cases in court), for business disputes. Here is a listing of the differences

  1. Public/Private, Formality
    The arbitration process is private, between the two parties and informal, while litigation is a formal process conducted in a public courtroom.

  1. Speed of Process
    The arbitration process is fairly quick. Once an arbitrator is selected, the case can be heard immediately. In a civil litigation, on the other hand, a case must wait until the court has time to hear it; this can mean many months, even years, before the case is heard.

  1. Cost of the Process
    The costs for the arbitration process are limited to the fee of the arbitrator(depending on the size of the claim, expertise of the arbitrator, and expenses), and attorney fees. Costs for litigation include attorney fees and court costs, which can be very high.

  1. Selection of Arbitrator/Judge
    Parties in the arbitration process decide jointly on the arbitrator; in a litigation, the judge is appointed and the parties have little or no say in the selection. The parties may have some say in whether a case is heard by a judge or a jury.

  1. Use of Attorneys
    Attorneys may represent the parties in arbitration, but their role is limited; in civil litigation, attorneys spend much time gathering evidence, making motions, and presenting their cases; attorney costs in litigation can be very high.

  1. Evidence allowed
    Arbitration process has a limited evidence process, and the arbitrator controls what evidence is allowed, while litigation requires full disclosure of evidence to both parties. The rules of evidence do not apply in arbitration, so there are no subpoenas, no interrogatories, no discovery process.

  1. Availability of Appeal
    In binding arbitration, the parties usually have no appeal option, unless an appeal has been included in an arbitration clause. Some arbitration decisions may be reviewed by a judge and may be vacated (removed), if you can prove that the arbitrator was biased. Litigation allows multiple appeals at various levels.

Arbitration vs. Litigation (Tabular form)

 

Arbitration

Litigation

Private/Public

Private – between the two parties

Public – in a courtroom

Type of Proceeding

Civil – private

Civil and criminal

Evidence allowed

Limited evidentiary process

Rules of evidence allowed

How arbitrator/judge selected

Parties select arbitrator

Court appoints judge – parties have limited input

Formality

Informal

Formal

Appeal available

Usually binding; no appeal possible

Appeal possible

Use of attorneys

At discretion of parties; limited

Extensive use of attorneys

Waiting time for case to be heard

As soon as arbitrator selected; short

Must wait for case to be scheduled; long

Costs

Fee for arbitrator, attorneys

Court costs, attorney fees; costly

Use of attorneys

At discretion of parties; limited

Extensive use of attorneys

Waiting time for case to be heard

As soon as arbitrator selected; short

Must wait for case to be scheduled; long

Costs

Fee for arbitrator, attorneys

Court costs, attorney fees; costly

Conclusion

We would like to conclude by saying the process of negotiation  involves conversation and interaction between people which could be in person, by telephone, letter etc. or it might use a combination, because it is personal, emotions and attitudes will always be important. Thus it is important the during negotiation the problems or barriers that arise should be taken carefully and dealt with care; particularly problems such as language, cultural and religious factors are the ones which are sensitive issues. Other issues in litigation involve complex legal issues which require expertise and knowledge of the law that governs the dispute, as well as the laws governing the procedures to be followed while litigating a case.

Litigation is one way that people and corporate entities resolve disputes thus it also requires special authority and regulated measures to carry out the procedures. In arbitration the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable. Thus these various forms for dealing with people are highly essential and important forms of legal activities in Bangladesh.

Bibliography

Christian Buhring-Uhle and Gabriele Lars Kirchhof. Arbitration and Mediation in International Business, 2nd Edition (2006)

Dionne, Georges (1992). Foundations of Insurance Economics: Readings in Economics and Finance. Springer. ISBN 0792392043.

 

Gary Born. International Commercial Arbitration (2009 Kluwer)

 

Mahbub Nazmi ,Effective Method of Negotiation, http://EzineArticles.com/1671981

Roger Fisher, William Ury, and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving In (New York: Penguin, 1991)

Shell, R.G. (2006). Bargaining for advantage. New York, NY: Penguin Books.

Sullivan, arthur; Steven M. Sheffrin (2003). [http://www.pearsonschool.com/index.cfm? locator=PSZ3R9&PMDbSiteId=2781&PMDbSolutionId=6724&PMDbCategoryId=&PMDbProgramId=12881&level=4 Economics: Principles in action]. Upper Saddle River, New Jersey 07458: Pearson Prentice Hall. pp. 324. ISBN 0-13-063085-3.

Wikipedia, the free encyclopedia, en.wikipedia.org/


align=”left” size=”1″ />

[1] http://en.wikipedia.org/wiki/Solicitor

[2] http://www.hg.org/litigation-law.html

[3] http://en.wikipedia.org/wiki/Attorney

[4] http://legalcareers.about.com/od/glossary/g/Litigators.htm

[5] Sullivan, arthur; Steven M. Sheffrin (2003). [http://www.pearsonschool.com/index.cfm? locator=PSZ3R9&PMDbSiteId=2781&PMDbSolutionId=6724&PMDbCategoryId=&PMDbProgramId=12881&level=4 Economics: Principles in action]. Upper Saddle River, New Jersey 07458: Pearson Prentice Hall. pp. 324. ISBN 0-13-063085-3.

[6] http://www.wikimediation.org/