Negotiation

Question 1

What is negotiation and when are they used? (2)

Answer 1

• Any form of direct or indirect communication whereby opposing parties can discuss and resolve disputes
• May be used to resolve an already existing problem or to lay the groundwork for a future relationship between two or more parties

Question 2

Voluntary aspect of negotiation (2)

Answer 2

• No party is forced to participate; they are free to accept or reject the outcome of negotiations and can withdraw at an point
• Parties may participate directly or choose a representative

Question 3

Bilateral/multilateral aspect of negotiation

Answer 3

Can involve unlimited amount of parties

Question 4

Non-adjudicative aspect of negotiation

Answer 4

Negotiation involves only the parties (no neutral third party)

Question 5

Informal aspect of negotiation (2)

Answer 5

• No prescribed rules, parties are free to agree on their own terms
• Usually subject matter, timing, and location will be agreed on by the parties (Number of sessions, documents, and etc, can be addressed as well), but nothing is required

Question 6

Confidential aspect of negotiation (2)

Answer 6

• Option of negotiating privately or publicly
• In government context, would be subject to Access to Information Act and Privacy Act

Question 7

Flexible aspect of negotiation

Answer 7

The scope of negotiation depends on the choice of the parties, they can determine the topics discussed, as well as wether they will adopt a positional-based bargaining approach or an interest-based approach

Question 8

Advantages of negotiation (6)

Answer 8

1. Flexible
2. Greater possibility of success with an interest based approach
3. Voluntary
4. No third-party neutral
5. Only binds parties involved in the negotiation
6. Less expensive

Question 9

Disadvantages of negotiation (5)

Answer 9

1. Parties of unequal power are at a disadvantage
2. Doesn’t guarantee a defined agreement at the end
3. Parties may take advantage of one another
4. No party is compelled to continue negotiating
5. May be used as a stalling tactic to prevent another party form asserting its rights

Question 10

Role of justice counsel in a negotiation (2)

Answer 10

• Varies depending on circumstances
• Some factors: whether or not legal issues or issues of mixed fact and law are at stake, as well as whether the client department needs or simply wants justice counsel to participate actively in the negotiation