When negotiating any transaction, dispute or potential problem, the Pre Negotiation Stage is important. Do you know your BATNA? But the other two stages ( the Negotiation Stage and Post Negotiation Stage) are of course important as well and can be seen as extensions of the Pre Negotiation Stage. A little bit about them below.
The Negotiation Stage
The negotiation stage or middle stage of the negotiation process involves numerous decisions too. Once parties have finalized the pre-negotiation stage, decisions still have to be made involving such issues as when, where, and how negotiations will take place.
For instance, parties may start negotiations via e-mail to negotiate minor items before concluding negotiations over the phone. Or they may start negotiations over the phone and wrap up with face-to-face negotiations. Or they may start with using email to negotiate minor items, phone conferences to settle some other items and then meet face to face to conclude the most important items and issues. Therefore, decisions have to be made on how to negotiate to one’s own advantage.
During the negotiation stage, internal and/or external parties and stakeholders may play a part in the outcome. Decisions must be made whether to include them or not. If third parties are involved in negotiations, one or both of the main parties may try to develop coalitions. Third parties may, in fact, add more problems and issues to negotiations or at least bring an added dimension to the discussions.
Parties must also decide upon a venue for negotiations. Many parties prefer a neutral site. However, those negotiators in a strong position may prefer negotiations to be held in their own office. It is all about tactics and to a certain degree perception of the other party’s position.
An equally important stage is the last stage of negotiations or the post-negotiation stage. This stage results in an agreement or resolution. Hopefully an enforceable one at that.
Parties must also decide whether to reduce an agreement to writing or leave it verbal—or a little bit of both. There are several sub- processes in this stage, such as concluding an agreement, drafting it in writing, and having the parties review it and approve it. Of course, each party may need its home office or upper management to approve the agreement as well.
Parties may want their respective Law Departments or outside lawyers to review the negotiated agreements. Agreements need to be reviewed to determine if they indeed resolve the dispute, and if the agreements are enforceable. A non-enforceable agreement usually does not solve the matter in dispute.
There are a number of miscellaneous issues that parties need to consider when using negotiations as a legal risk management or LRM tool. As negotiations are in fact voluntary, they require the informed consent or assent of the parties. This leads to a number of questions that must be asked.
- Do you resolve the dispute now or wait until a later date? Is now the right time to resolve the dispute?
- Do you use this as an on-going process or see it as an onetime event?
- How many people will participate in the negotiations? Will there be several teams?
- What do you really hope or want to achieve?
- Does the other side want to come to the table?
- What does the other side really want or hope to achieve?
- What is the other side’s BATNA? Can you find it out? Can you guess it ?
So both parties must decide if they want to negotiate, and if so, when, where, and how. Maybe delays will benefit one or the other party or maybe not.
It is obvious that negotiation is an important LRM tool. However, to be adequately used as a method to decrease risk of litigation, the parties on both sides (of the negotiation) must be adequately trained in negotiation techniques and must have a proper negotiation mind-set. If the parties come to the table properly prepared, ready to negotiate and seek an amicable outcome, negotiation can be a powerful resolution process and risk mitigation tool. If not, it may lead to a lost opportunity and an unfavorable result.