ADR - Negotiation Flashcards
What are the positives for negotiation?
Completely private
Quick resolution
Maintains relationships
Informal
What are the negatives for negotiation?
Can be costly if lawyers are used
Often agreements made right before court
Inequality of bargaining power
Seen as half way house
Completely private - why is it a positive - P-DEV-E
Negotiation in its most basic form only needs to take place between the two parties involved, and therefore can be kept completely private. Even when lawyers are used, there is no obligation to make discussions public. This can help to preserve reputation.
However, there is no requirement of confidentiality, so there is nothing from stopping parties making details public – such as going to the press after a settlement with a company.
Quick resolution - why is it a positive - P-DEV-E
Negotiation allows for solutions to be made very quickly, if parties can reach an agreement. Some negotiations are so quick that parties do not even realise they are in negotiation, because they are able to easily compromise.
However, this is not always the case, and complicated negotiation deals can sometimes continue up until the door to the courtroom on the day of trial, which makes the process pointless.
Maintains relationships - why is it a positives - P-DEV-E
Whilst parties are negotiating with one another, they will have to compromise on certain matters and see points from their opponents point of view – this can help them to reach common ground and therefore maintain positive relationships for the future.
However there is a danger of the parties feeling short changed as a result of the negotiation proceedings – especially if there is an imbalance of power – and this can cause animosity to continue after the negotiations.
Informal - why is it a positive - P-DEV-E
Negotiation can take many different forms and there is no set process that needs to be followed, giving the parties freedom to be able to choose the best way to communicate – electronically, verbally, or through the use of lawyers.
However there is a danger that this lack of formality means parties do not take the process seriously, and instead simply use negotiation as something to fill the time before eventually going to court anyway.
Can be costly if lawyers are used - why is it a negative - P-DEV-E
If parties wish for their negotiations to be a little more formal, they may both hire lawyers who help them with the process – however if this is done, the cost of hourly legal fees can sometimes end up exceeding the cost of going to court, especially if negotiations are difficult.
The problem though is that this is often when negotiation is most effective, and therefore this negates the positives of using ADR in the first place.
Often agreements made before court - why is it a negative - P-DEV-E
One of the reasons why ADR is useful is that it reduces the amount of cases clogging up the civil courts system – however when parties use negotiation and fail to reach an agreement until right before the court date, it defeats the point of this.
However, even a last minute settlement does actually keep the case out of the courts, so there is still a reduction in pressure on the courts system.
Inequality of bargaining power - why is it a negative - P-DEV-E
Stronger and better resourced parties may exploit weaker parties, for example if a business with access to experienced lawyers uses them against a customer without legal representation, it is unlikely that any deal with come up with will be truly fair.
However, the lack of legal aid means that these inequalities are still likely to exist in the court room, where businesses will still be able to use their qualified lawyers to help them win.
Seen as half way house - why is it a negative - P-DEV-E
This refers to the point that parties will feel when they agreement to a settlement made in negotiation, they are not receiving as much as they could have done had they taken the case to court and won, as court compensation is usually much higher. This seems unfair.
However, for many parties, the stress of the court case is not worth it for the additional money, and if they are happy with the settlement amount, there is no need to pursue the case further.
