OUTLINE

NOTES

<aside> <img src="/icons/fish_gray.svg" alt="/icons/fish_gray.svg" width="40px" /> THEORIES

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• Involvement of neutral third parties in ADR

Negotiation

Overview

• The preeminent mode of dispute resolution
• Almost always attempted first to resolve a dispute → principle of parties’ autonomy
• Negotiation allows the parties to meet in order to settle a dispute
• Has been defined as any form of direct/indirect communication whereby parties who have opposing interests discuss the form of any joint action which they might take to manage & ultimately resolve the dispute between them

Characteristics

• Voluntary
• Non-adjudicative: no neutral third party involved → parties come to the decision by themselves
• Informal: no fixed procedures → freedom to customize the procedures
• Confidential: general characteristic of ADR, but the standard of confidentiality differs
• Flexible

Process of negotiation

1. Positional bargaining: 1 party stakes out a high (or low) opening position (demand or offer) & the other a correspondingly low (or high) one → bargain
2. Favors & Ledgers: agree to a one-sided outcome now in exchange for a reciprocal favor in the future
3. The ‘Chicken’ Approach: whose are better, & who has the upper hand → no bargaining, only 1 option