The best negotiations happen when we sit down with the other side, have a discussion, make some concessions, and then reach a deal that both sides can live with. We like these kinds of negotiations. However, not all negotiations turn out this way. In fact, sometimes we run into trouble. We reach a sticking point in our discussions that we just don’t seem to have a way around. Both sides see the world differently and it’s not clear how we can reach an agreement. These types of disputes need to be resolved. As negotiators, we need to know what our options for resolving disputes are.
Dealing With Disputes
When it comes to trying to resolve a dispute, there are many choices available to negotiators. Understandably, negotiators can be confused about which process to apply to their situation. Suppose that parties and their lawyers have exhausted their attempts to negotiate a resolution. They’re ready for outside help in ending their dispute, yet they don’t know exactly where to turn. It turns out that there are the three basic types of dispute resolution to consider.
Negotiators need to understand that the goal of mediation is for a neutral third party to help both parties come to a consensus on their own. Rather than imposing a solution, a professional mediator will work with the conflicting sides to explore the interests underlying their positions. Mediation can be effective at allowing negotiators to vent their feelings and fully explore their grievances. Working with parties together and sometimes separately, mediators can try to help them hammer out a resolution that is voluntary, sustainable, and nonbinding.
In arbitration, a neutral third party serves as a judge who is responsible for resolving the dispute between the negotiators. The arbitrator listens as each side argues its case and presents relevant evidence, then renders a binding decision that both sides have agreed to abide by. The disputants can negotiate virtually any aspect of the arbitration process, including whether lawyers will be present at the time and which standards of evidence will be used. Arbitrators hand down decisions that are usually confidential and that cannot be appealed. Like mediation, arbitration tends to be much less expensive than litigation.
You knew that there had to be a third option. The most familiar type of dispute resolution, civil litigation typically involves a defendant facing off against a plaintiff before either a judge or a judge and jury. The judge or the jury is responsible for weighing the evidence and making a ruling. The information conveyed in hearings and trials usually enters, and stays on the public record. Lawyers typically dominate litigation, which often ends in a settlement agreement during the pretrial period of discovery and preparation.
What All Of This Means For You
As negotiators, we always want to find a way to reach a deal with the other side of the table. We’ll try and use all of our negotiating techniques to find a way to reach a deal that will appeal to both sides. However, try as we might, there will be those times where we just can’t find common ground. When we find ourselves in situations like this we are going to have use some form of dispute resolution. It turns out that we have three different options available to us.
Our first option is to bring in a mediator. The mediator will listen to both sides, allow everyone to vent their feelings, and then work with all involved parties to see if a common agreement can be found. Our next option is arbitration. When we take this route, we bring a neutral third party to act as a judge. Both sides present their case and then they agree to live with whatever decision the judge reaches. Our final option is litigation. This involves taking our dispute to court and asking a judge and jury to resolve our issue.
The good news is that just because we can’t reach an agreement with the other side, does not mean that we are going to have to walk away from this negotiation empty handed. Instead, it means that we may need to turn to one of our three different dispute resolution options in order to find a way to reach a deal with the other side. Consider your options carefully. Next time you encounter a dispute, choose the resolution method that you think will get you the best deal possible.
– Dr. Jim Anderson
Blue Elephant Consulting –
Your Source For Real World Negotiating Skills™
Question For You: When do you think that you should take th litigation route to resolve a dispute?
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What We’ll Be Talking About Next Time
Negotiators are always looking for ways to become better. We’ll read books, we’ll attend courses, and we’ll talk with the experts in order to develop new negotiation styles and negotiating techniques. Our ultimate goal is to find a way to make our next negotiation go quicker and more smoothly as we work our way towards getting the deal that will meet the needs of both sides. However, it turns out that one of most powerful skills that we need to have in order to get what we want from a negotiation may be right before us. Or, a better way to say this, it may be on the sides of our head: our ears.