Negotiation
| Author | Jeffrey Wilson |
| Pages | 555-559 |
Page 555
Negotiations consist of written and oral communications undertaken for the purpose of reaching agreement. When undertaken in good faith, negotiations include a process of give-and-take, whereby each party to the negotiations presents its position, critiques opposing positions, explores points of common ground, highlights divisive issues, proposes compromises and resolutions, and determines whether a mutually acceptable arrangement can be agreed upon to resolve the matters in dispute. When undertaken in bad faith, negotiations often are reduced to rancorous posturing aimed at assigning blame rather than reaching an amicable settlement.
Lawyers are constantly negotiating in civil litigation. Yet negotiation is not always used often enough, or extensively enough, to avoid litigation. Legal observers have suggested that a factor contributing to the high cost of litigation is the fear that the first side to propose settlement weakens its negotiating position. Since appearing eager to settle is taken as demonstrating a lack of confidence in one's case, both sides concentrate on discovery and preparing for trial so as to strengthen their hands for future negotiation while legal fees continue to mount.
The same fear does not ordinarily impede alternative dispute resolution proceedings, where a negotiated settlement is typically the goal for both parties. Alternative dispute resolution refers to an array of practices, procedures, and techniques that are used to resolve legal disputes by means other than formal civil litigation. Known more commonly as ADR, alternative dispute resolution is usually less costly and more time-efficient than civil litigation. ADR can also be more confidential than civil litigation. Court proceedings, records, and transcripts are generally open to public scrutiny and inspection in most civil litigation and cannot be sealed from the public absent an extraordinary justification. By contrast, parties to ADR proceedings can agree to insulate their dispute and its resolution from the public.
Early Puritan, Quaker, and Dutch settlers were among the first in North America to employ alternative means in resolving legal disputes. These tightly knit communities of settlers preferred even-tempered negotiations to adversarial litigation and treated litigation as a last resort to try only when procedures such as mediation and arbitration (discussed in detail below) failed to produce an acceptable and effective settlement. However, the term "alternative dispute resolution" was not coined in the United States until sometime during the 1970s, when it drew diverse support from influential members of society, including Chief Justice Warren Berger and consumer rights advocate Ralph Nader. Both
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Berger and Nader emphasized the perspective of the average citizen, who they said has neither the time nor the money to spend getting bogged down in drawn out court battles. Instead, Berger and Nader argued that average citizens find out-of-court negotiation alternatives to be a more palatable course, at least when done evenhandedly.
Congress helped fuel the ADR movement in the 1980s and 1990s by passing a series of legislative acts. In 1980 it passed the Dispute Resolution Act, which provides financial incentives for state governments and private entities to explore innovative approaches to negotiation and dispute resolution. 28 U.S.C. app. section 1 et seq; Pub. L. No. 96-190, 94 Stat. 17 (1980). In 1990 Congress passed the Administrative Dispute Resolution Act, which encourages federal agencies to use mediation and arbitration for prompt and informal resolution of disputes. 5 U.S.C.A. sections 571 et seq; Pub.L. 101-552, Nov. 15, 1990, 104 Stat. 2738, and renumbered and amended Pub.L. 102-354, Aug. 26, 1992, 106 Stat. 944, 946. Eight years later Congress passed the Alternative Dispute Resolution Act of 1998, which requires all federal district courts to establish an ADR program, making at least one form of ADR available to all federal civil litigants. 28 U.S.C.A. sections 651 et seq; Pub.L. 100-702, Title IX, Nov. 19, 1988, 102 Stat. 4659. By 2001 approximately ninety to ninety-five percent of all legal disputes were being resolved outside of trial by using negotiation through some form of ADR.
A wide variety of processes, practices, and techniques fall within the definition of "alternative dispute resolution." Arbitration and mediation are the best known and most frequently used types of ADR, but not the only ones. Minitrials, early neutral evaluations, and summary jury trials are less well-known forms of ADR. Many of these ADR techniques have little in common except that negotiation plays a prominent role in each. Parties to ADR procedures generally agree that a negotiated settlement is worth pursuing before investing time and money in full blown civil litigation.
Arbitration is the process of referring a dispute to an impartial intermediary chosen by the parties who agree in advance to abide by the arbitrator's award that is issued after a hearing at which all parties have the opportunity to be heard. Arbitration resembles...
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