A negotiated settlement can be turned into a binding contract that is enforceable. Parties can engage each other using different types of negotiation, including distributive and integrative. Distributive, positional or hard-bargaining negotiation employs the zero-sum principle, which favors one party at the expense of the other. As a result, parties often adopt extreme positions fully aware that they are unacceptable. This type of negotiation usually involves parties that have not previously worked together.
With integrative negotiation, counter-parties employ tactics aimed at increasing the likelihood of a negotiated agreement. Also known as interest-based, principled or merit-based negotiation, it attempts to create value by ensuring the outcome divides spoils equally between the parties.
The approach is generally characterized by high levels of trust and the nurturing of a professional relationship. It is common for both sides to employ creative problem-solving techniques to attain a win-win outcome. They trade one favor for another (logrolling) at the expense of their arbitrary starting positions.
In some cases, one party may concede to the negotiation based on social motivations. However, quick concessions may mean that one of the sides opted not to explore all integrative solutions. Perspective-taking is known to allow parties to reach a mutually beneficial outcome.
Negotiation is defined by a number of key characteristics that include:
Non-adjudicative — the outcome of the negotiations typically does not entail recourse to a third-party neutral. Flexible — the parties can agree on the scope of the negotiations. They can adopt either an interest-based or positional-based bargaining approach. Confidential — the parties can keep the deliberations confidential or make them public.
Voluntary — participation is purely voluntary and the parties can reject or agree on the outcome. They also have the right to withdraw from the negotiation. In addition, they can be represented by a third party. Bilateral or multilateral — the number of participants can be limited to a few parties or more.
Arbitration provides a practical solution for resolving different types of disputes. The approach is typically used in the context of commercial disagreements. Many employment and consumer matters are resolved through arbitration. Participation can be voluntary or involuntary and the decisions taken by an impartial adjudicator can be binding or not.
Mandatory arbitration is established by a statute or contract that the counterparties signed voluntarily. On the other hand, non-binding arbitration shares similarities with mediation in that there is no imposition of decisions.
On another level, arbitration is regulated differently in various countries around the world. Some nations like England have a separate that covers arbitration. In many cases, provisions surrounding arbitration may be outlined multiple procedural laws.
Benefits of arbitration
– Faster when compared to litigation
– Unlike court verdicts, arbitration is generally easier to implement internationally due to the provisions of the New York Convention (1958)
– Parties select their own tribunal as opposed court cases that have a pre-selected judge
– Proceedings are confidential
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