Negotiation

 I. What is negotiation?
Negotiation has been defined as any form of direct or indirect communication
whereby parties who have opposing interests discuss the form of any joint action
which they might take to manage and ultimately resolve the dispute between
them Footnote1 . Negotiations may be used to resolve an already-existing problem or to
lay the groundwork for a future relationship between two or more parties.
Negotiation has also been characterized as the “preeminent mode of dispute
resolution” Footnote2 , which is hardly surprising given its presence in virtually all
aspects of everyday life, whether at the individual, institutional, national or global
levels. Each negotiation is unique, differing from one another in terms of subject
matter, the number of participants and the process used.
Given the presence of negotiation in daily life, it is not surprising to find that
negotiation can also be applied within the context of other dispute resolution
processes, such as mediation and litigation settlement conferences.

 II. Characteristics of a negotiation

Negotiation is:

o Voluntary: No party is forced to participate in a negotiation. The parties are

free to accept or reject the outcome of negotiations and can withdraw at any
point during the process. Parties may participate directly in the negotiations or
they may choose to be represented by someone else, such as a family member,
friend, a lawyer or other professional.
o Bilateral/Multilateral: Negotiations can involve two, three or dozens of
parties. They can range from two individuals seeking to agree on the sale of a
house to negotiations involving diplomats from dozens of States (e.g., World
Trade Organization (WTO)).
o Non-adjudicative: Negotiation involves only the parties. The outcome of a
negotiation is reached by the parties together without recourse to a third-party
neutral.
o Informal: There are no prescribed rules in negotiation. The parties are free to
adopt whatever rules they choose, if any. Generally they will agree on issues
such as the subject matter, timing and location of negotiations. Further matters
such as confidentiality, the number of negotiating sessions the parties commit
to, and which documents may be used, can also be addressed.
o Confidential: The parties have the option of negotiating publicly or privately.
In the government context, negotiations would be subject to the criteria
governing disclosure as specified in the Access to Information Actand
the Privacy Act (see confidentiality section). For general information on the
privileged nature of communications between solicitor and client during the
course of negotiations, please refer to the Department of Justice Civil
Litigation Deskbook.
 o Flexible: The scope of a negotiation depends on the choice of the parties. The
parties can determine not only the topic or the topics that will be the subject of
the negotiations, but also whether they will adopt a positional-based
bargaining approach or an interest-based approach.

 III. Advantages of negotiation

o In procedural terms, negotiation is probably the most flexible form of dispute
resolution as it involves only those parties with an interest in the matter and
their representatives, if any. The parties are free to shape the negotiations in
accordance with their own needs, for example, setting the agenda, selecting
the forum (public or private) and identifying the participants. By ensuring that
all those who have an interest in the dispute have been consulted regarding
their willingness to participate and that adequate safeguards exist to prevent
inequities in the bargaining process (i.e., an imbalance in power between the
parties), the chances of reaching an agreement satisfactory to all are enhanced.
o Like any method of dispute resolution, negotiation cannot guarantee that a
party will be successful. However, many commentators feel that negotiations
have a greater possibility of a successful outcome when the parties adopt an
interest-based approach as opposed to a positional-based approach. By
focusing on their mutual needs and interests and the use of mechanisms such
as objective standards, there is a greater chance of reaching an agreement that
meets the needs of the parties. This is sometimes referred to as a “win-win”
approach.
o Negotiation is a voluntary process. No one is required to participate in
negotiations should they not wish to do so.
o There is no need for recourse to a third-party neutral. This is important when
none of the parties wants to involve outside parties in the process, e.g., the
matter to be discussed or the dispute to be resolved may be highly sensitive in
nature.
o Unlike the outcomes of certain adjudicative processes, e.g., the courts, the
outcome of a negotiation only binds those parties who were involved in the
negotiation. The agreement must not, of course, be contrary to Canadian law
(e.g., an agreement to commit a crime would be illegal and thus void for
public policy reasons).
o Assuming that the parties are negotiating in good faith, negotiation will
provide the parties with the opportunity to design an agreement which reflects
their interests.
o Negotiations may preserve and in some cases even enhance the relationship
between the parties once an agreement has been reached between them.
o Opting for negotiation instead of litigation may be less expensive for the
parties and may reduce delays.

 IV. Disadvantages of negotiation

o A particular negotiation may have a successful outcome. However, parties
may be of unequal power and the weaker party(ies) may be placed at a
disadvantage. Where a party with an interest in the matter in dispute is
excluded or inadequately represented in the negotiations, the agreement's
 value is diminished, thereby making it subject to future challenge. In the
absence of safeguards in the negotiating process, the agreement could be
viewed by a participant or others outside the process as being inequitable,
even though the substance of the agreement may be beyond reproach.
o A successful negotiation requires each party to have a clear understanding of
its negotiating mandate. If uncertainty exists regarding the limits of a party's
negotiating authority, the party will not be able to participate effectively in the
bargaining process.
o The absence of a neutral third party can result in parties being unable to reach
agreement as they be may be incapable of defining the issues at stake, let
alone making any progress towards a solution.
o The absence of a neutral third party may encourage one party to attempt to
take advantage of the other.
o No party can be compelled to continue negotiating. Anyone who chooses to
terminate negotiations may do so at any time in the process, notwithstanding
the time, effort and money that may have been invested by the other party or
parties.
o Some issues or questions are simply not amenable to negotiation. There will
be virtually no chance of an agreement where the parties are divided by
opposing ideologies or beliefs which leave little or no room for mutual
concessions and there is no willingness to make any such concessions.
o The negotiation process cannot guarantee the good faith or trustworthiness of
any of the parties.
o Negotiation may be used as a stalling tactic to prevent another party from
asserting its rights (e.g., through litigation or arbitration).

 V. How to use negotiation

A. Objective of a Negotiation

Negotiations allow the parties to agree to an outcome which is mutually

satisfactory. The actual terms of the agreement must be concluded by the
parties and can be as broad or as specific as the parties desire. A negotiated
settlement can be recorded in the form of an agreement. Once signed, has the
force of a contract between the parties. If the settlement is negotiated in the
context of a litigious dispute, then the parties may wish to register the
settlement with the court in conformity with the applicable rules of practice.

B. Negotiating Styles

Generally speaking, although the labels may vary from one commentator to
the next, negotiating styles can be divided into two categories:

i. Competitive/Positional-Based Negotiation

In the competitive model, the parties try to maximize their returns at

the expense of one another, will use a variety of methods to do so and
view the interests of the opposing party or parties as not being relevant,
except insofar as they advance one's own goal of maximizing returns.
Competitive bargaining has been criticized for its focus on specific
 positions rather than attempting to discern the true interests of the
parties Footnote3 . Among the criticisms which have been levelled at the
competitive model are its tendency to promote brinkmanship and to
discourage the mutual trust which is necessary for joint gain Footnote4 .

ii. Cooperative/Interest-Based Negotiation

Cooperative or problem-solving negotiation starts from the premise

that the negotiations need not be seen as a “zero-sum” situation, i.e.,
the gains of one party in the negotiation are not necessarily at the
expense of the other party Footnote5 . Common interests and values are
stressed, as is the use of an objective approach, and the goal of the
negotiations is a solution that is fair and mutually agreeable Footnote6 .
In recent years, the form of cooperative negotiating style known as principled
bargaining has won widespread acceptance Footnote7 . The proponents of
principled bargaining believe that bargaining over fixed positions can lead to
situations where parties will either be stubborn (“hard bargaining”) or accept
unilateral losses (“soft bargaining”) in order to reach agreement Footnote8 .
Principled bargaining, which attempts to reconcile the interests underlying
these positions, helps the parties to reach agreement and circumvent the
problems of hard and soft bargaining. It is this form of negotiation which is
seeing increasing use. See Part G “Steps of a Negotiation” for further
discussion.

C. What is the Role of Justice Counsel in a Negotiation?

Simply put, a negotiator is supposed to advance the interests of the party that
he or she represents in order to obtain an optimal outcome. Beyond this
general statement, the functions to be performed by a negotiator will vary,
depending on the mandate conferred on her or him by the party.
In the most elementary form of negotiation, two or more parties work to
achieve an agreement between themselves. However, the parties can delegate
representatives to act on their behalf. These representatives include the
following:

a. members or employees who have been designated by the party in question;

b. third parties (e.g., dispute resolution professionals, lawyers, labour
negotiators, etc.) whose services have been retained by the parties
because of the negotiating skills of these individuals rather than any
involvement on the part of the latter in the dispute or discussion in
question.

The role of Justice counsel in a negotiation will vary with the circumstances
and the mandate of the negotiating team. The extent to which Justice counsel
will participate in the negotiations will depend on a variety of factors,
including 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. For example, counsel with
 Legal Services Units work with their clients and on their behalf and help
represent their views in a variety of situations, e.g., formulating contractual
terms concerning the development of a project. In some cases, Justice counsel
will have carriage of files such as ongoing litigation and may be directly
involved in negotiations, e.g., settlement conferences in litigation files.
When negotiating on behalf of the client, counsel must ensure that there is no
divergence between his or her negotiating stance and the mandate of the client.
This is best done through following the client's instructions and providing
frequent updates to the client. At other times, client departments may ask the
Justice counsel to participate as a member of the negotiating team. Should the
client be present at the negotiations, counsel must determine in advance
whether the client will actually participate in the negotiations. It is crucial for
the success of the negotiations that no divergences, real or apparent, emerge
between the positions advanced by Justice counsel and those proposed by the
client. To avoid any such disclosures, counsel and the client should clarify
their respective mandates and formulate a common negotiating strategy.
The choice of negotiating style will also be an important consideration, as a
competitive negotiator will view the bargaining exclusively in terms of
advancing his or her interests and will conduct the negotiations accordingly.
The cooperative negotiator, however, will view the issues in a fundamentally
different light and will attempt to seek common ground with his or her
counterpart.
While the role of counsel will depend on the circumstances surrounding the
negotiations, she or he is always bound by the principles of professional
ethics. For example, the Code of Professional Conduct of the Canadian Bar
Association states that when acting as an advocate, the lawyer must treat the
tribunal with courtesy and respect and must represent the client resolutely,
honourably and within the limits of the law. Although no two negotiations are
identical, counsel must apply these principles of professional responsibility in
each situation Footnote9 . Counsel for the Department of Justice are bound as well
by the provisions of the Department of Justice Act, and relevant directives and
policies which outline the appropriate role for Justice counsel. Of note is
the Treasury Board Contracting Policy, which specifies negotiations as one
means of resolving contractual disputes. Section 12.8.3 reads:
Efforts should be made to resolve disputes as they arise, first by negotiating
with the contractor. This can be through discussion between representatives of
the contractor and the contracting authority or by a more formal review
established by the department or agency. Contracting authorities should
develop systems that ensure:

c. prompt attention is given to disputes;

d. unresolved disputes are brought forward quickly to a designated senior
level in the department or agency for decision;
e. the decision is quickly communicated to the contractor so that the
contractor may take further action if so desired.
 Counsel should also be aware of all other legislative and government policy
requirements including, for example, the Access to Information Act,
the Privacy Act and the Official Languages Act.

D. Dealing With Differences

Underlying any successful relationship is the principle of mutual respect. This

is particularly true during negotiations, where cultural and/or linguistic
differences between the parties may occasionally result in misunderstandings
between them. Such differences will influence the perceptions and
assumptions of individuals and how they bargain Footnote10 . Differences in
gender may also play a role in the negotiating process, whether the parties are
of the same or different cultural backgrounds Footnote11 . Reliance on
stereotypes, whether they be based on gender, cultural, physical or racial
differences or physical disability, will cause and reinforce misunderstandings
between the parties.
The ability to deal with others who are not of the same gender or cultural
origin or who differ in some way from one's self varies with each individual
and the degree to which she or he has been exposed to and is willing to accept
diversity. Whatever one's background, clearly demonstrating respect for and
an open-minded attitude towards others is always an appropriate course of
action. When there are cultural or other differences among parties to a
negotiation, it is important to be aware of and sensitive to these differences. In
such a situation, it is essential to communicate clearly and effectively with the
other party or parties in a negotiation. Doing so will enhance the relationship
between the parties as well as minimize the chances of a misinterpretation of
the underlying message Footnote12 .

E. Dealing With Difficult or Deceptive Conduct

At any point during negotiations, one party may decide to use a variety of
tactics in order to obtain an advantage over another party. This behaviour can
range from pressure tactics (attempting to force a party to accept specific
terms), intimidation (implicit or explicit), deliberate ambiguity regarding the
scope of the negotiating mandate to blatantly unethical behaviour (providing
misleading or false information, lies, etc.) Footnote13 .
Advance preparation is essential in order to respond effectively to these
tactics, whenever they may arise. In devising strategies to counter such
behaviour, each situation must be viewed as unique. Previous experience of
others can provide useful guidelines in formulating a suitable
response Footnote14 . Awareness of basic communication techniques and
strategies on how to communicate with difficult or deceptive individuals may
also be extremely helpful. Ultimately, the choice of tactic(s) to be used to
rebut difficult or unethical conduct is a question of personal judgment, as what
may be an appropriate response in one situation may be excessive or too
conciliatory in other circumstances.
F. Preparing for a Negotiation
.Initial Assessment

The negotiation process begins with a communication or signal from

one party to the other indicating a willingness to bargain. Since
negotiation is a voluntary process, the first and fundamental step to be
taken is to confirm whether or not the other party or parties are
interested in negotiations. In making such an assessment, it is
important to take into account the following factors:

 the desire to resolve the dispute;

 whether a negotiated solution is in the interests of any or all of
the parties in question;
 the credibility of the other party(ies);
 the willingness of the parties to establish or preserve a
relationship;
 whether or not there is a disparity between the parties to the
extent that it would be impossible to bargain equally, i.e., there
is a marked contrast between the parties in terms of the level of
education or the resources of the parties;
 the desirability of using another form of alternative dispute
resolution, such as mediation or arbitration; and
 proper authority to enter into negotiations and to reach an
agreement or settlement.
i. Contacting the Other Party

Once it has been decided that negotiations are an appropriate course of

action, arrangements that must be made with the other parties include:

 outlining the agenda and the scope of the negotiations;

 fixing the timetable, i.e., whether or not there will be a fixed
period for the talks as well as the frequency and the duration of
the negotiations;
 determining the identity of the participants, ensuring that all
interested parties have been consulted;
 choosing the locale for the negotiations (preferably a neutral
location) and arranging necessary support services;
 specifying the official language(s) to be used for the purposes
of the negotiations, as well as the need for translation and
interpretation services (please refer to the discussion of
the Official Languages Act).
 deciding whether or not the negotiations and any resulting
agreement will be confidential (please see the discussion of
the Access to Information and Privacy Acts).

Consistency in these matters will not only assist in ensuring the

negotiations are as effective as possible, they will also reinforce one's
credibility and can thus contribute to establishing mutual confidence
and trust Footnote15 .
ii.Preparation of a Strategy and Interest Assessment

A crucial factor in achieving one's goals in negotiation is thorough

preparation. Therefore, it is suggested that the following steps should
be taken prior to any bargaining session:

 Study the dispute in question before the negotiations. This

means not only obtaining the facts surrounding the dispute, but
also attempting to find out as much as possible about the other
party or parties, their background and their negotiating
interests.
 Harmonize and reconcile the varying and sometimes competing
interests within one's negotiating side before negotiating with
the other side Footnote16 . Failure to do so can undermine one's
negotiating stance by making the other party aware of internal
disagreements and thus raising doubts as to one's ability to
implement any future agreement.
 When assessing one's interests as well as those of other parties,
the Best Alternative To a Negotiated Agreement (BATNA)
must be taken into account Footnote17 . The BATNA is “the
standard against which any proposed agreement should be
measured” Footnote18 . It is, in essence, the best of all the possible
alternatives to negotiation should the latter fail. Assessing one's
BATNA is indispensable and should be done carefully and well
in advance of any bargaining session so as to avoid unpleasant
surprises from the opposing party during the negotiations.
Attempting to estimate the BATNA of the other party will also
be worthwhile when planning one's negotiation strategy.
 Creativity is necessary when attempting to devise solutions
when at first glance the dispute appears to be insoluble. An
impasse will often result when the negotiating parties advance
specific positions and refuse to change them. Each party should
then canvass the various members of the negotiating team in
order to obtain their views regarding possible solutions, i.e.,
determining the parties' underlying interests and how they may
be satisfied. This should be done in an environment which
encourages the team members to express their ideas freely and
without fear of criticism, e.g., a brainstorming session.
 Thought must be given as to how the negotiations will be
handled. For example, it must be decided in advance whether
there will be one spokesperson or whether each member of the
negotiating team will be responsible for one or more particular
areas or topics. Another consideration is fixing in advance
when and how to call a private team caucus that will interrupt
the negotiations. Resorting to a caucus of team members is
helpful when a new issue emerges at the table or an issue on the
table requires clarification or further analysis. Finally, all
members of the negotiating team should be aware of the need
to resolve any internal disputes away from the negotiating table
 and to avoid revealing any such disputes or doubts to the other
parties, e.g., through the use of inappropriate body language.
G. Steps of a Negotiation Footnote19

Each negotiation has its own unique characteristics. There is thus no uniform
and exclusive manner governing the organization of a bargaining session. For
example, the timing of an offer and the question of which party is to make the
first offer fall within the discretion of the negotiator and are determined by the
overall dynamic of a particular negotiation.

.Negotiation Session

During any negotiation, the following considerations should be kept in

mind:

 Concentrate on interests, not positions. Try to focus on the

underlying interests of all the parties, i.e., their needs, desires,
concerns and fears, and how they might be acknowledged and
reconciled.
 Separate the people from the problem. Avoid blaming the other
side for the problem(s) one has encountered and discuss the
perceptions held by each side. Ensure that there is effective
communication between all parties.
 Listen carefully and actively to what the other side is saying
and acknowledge what is being said. This can be done through
methods such as asking questions and by making frequent
summaries Footnote20 .
 Try to make the negotiations a “win-win” outcome by creating
options for mutual benefit.
a. There is no need to wait until negotiations have begun,
however, in order to develop these options. They can
and should form part of the development of the
negotiating strategy, although they are subject to
modification in the course of the negotiation.
b. Creating these options implies a willingness to look
beyond the limits of the issue(s) in question. Doing this
can be achieved through means such as brainstorming
sessions with one's negotiating team. Brainstorming can
also be a joint exercise involving all the parties. These
sessions should be structured so as to allow all
participants the opportunity to voice ideas in a non-
adversarial and non-critical environment.
 Use objective standards. Citing objective standards such as
legislation or government policies enables parties to view the
issues in rational rather than emotional terms and facilitates the
conclusion of an agreement. There is likely a variety of
alternative objective criteria that could be cited by the parties
and, if possible, they should be identified by each negotiating
team prior to entering into the negotiating session.
  Evaluate proposals of the other party and the progress of the
negotiations in light of the BATNA (Best Alternative To a
Negotiated Agreement). It may become necessary to break off
the negotiations if there appears to be no way of achieving an
outcome which is superior to the BATNA. This can occur when
it becomes apparent that the underlying interests between the
parties are irreconcilable or that the other side does not really
want an agreement.
 When necessary, feel free to stop the negotiations if there is a
need for the members of the negotiating team to confer on a
new development. To avoid revealing the content of these
discussions, the caucus should be held in a private location
which is preferably not visible to the other side.
 Stay within the limits of one's negotiating mandate. Ensure that
there is constant communication with the client when acting on
the latter's behalf. The same principle applies when bargaining
in the governmental context; before committing the
government to a position Justice counsel must be clear as to the
extent of her or his bargaining authority. More specifically,
counsel must be certain that they have received specific
instructions as to whether or not to conclude an agreement as
well as the limits of the mandate, e.g., the limits governing any
offer to the other party as well as the degree to which other
options can be offered. As well, any agreement that is reached
must respect existing laws and government policies.
 Prepare for the possibility of being confronted with
provocative, intimidating, unfair or deceptive behaviour of a
party to the negotiations Footnote21 . At worst, it may become
necessary to end the negotiations, having carefully examined
one's BATNA and having concluded that termination is the
preferable course of action.
i. Statutory/Policy Considerations

A negotiator's authority is limited not only by the mandate given by his

or her principal or client, but also by factors that may not be explicitly
mentioned in her or his mandate, such as existing statutes, regulations
or government policies.
Justice counsel have a particular duty to ensure that any agreement
reached does not breach the terms of any law or policy directive. For
example, the Minister of Justice has responsibility for a number of
federal statutes, including the Access to Information Act, the Canadian
Human Rights Act, the Canadian Bill of Rights, the Commercial
Arbitration Act, the Crown Liability and Proceedings Act, the Federal
Real Property and Federal Immovables Act, the Official Languages
Act, the Privacy Act, and the United Nations Foreign Arbitral Awards
Convention. These statutes are cited here only as examples and are not
intended to provide a definitive list of federal statutes to be consulted
by Justice counsel. Counsel should examine the relevant federal,
 provincial or territorial laws which may be applicable to the particular
fact situation or client department.
Any agreement reached between the parties cannot override the terms
of the Access to Information Act, the Privacy Act or the Official
Languages Act as these laws are of general application. Please refer to
sections ins “Confidentiality: Access to Information Act and Privacy
Act” and “Official Languages Act: Considerations”contained in this
Reference Guide for further discussion.

Appendix A: Checklist for negotiation

1. Initial assessment:
a. Authority/Mandate to negotiate and reach an agreement or settlement
b. Willingness to negotiate
c. Credibility of other party(ies)
d. Ability to negotiate (equality?)
e. Alternatives to negotiation
2. Contact with the other party to arrange/confirm:
a. Agenda
b. Location (neutral)
c. Timetable
d. Participating parties
e. Public/Confidential nature (See statutory requirements, below)
f. Official Languages
g. Support services (word processing, etc.)
3. Preparation of a strategy and interest assessment:
a. Study the issues
b. Harmonize/reconcile competing interests within the team
c. Assess the BATNA (Best Alternative to a Negotiated Agreement) for all
parties
d. Assign roles for team members (spokesperson(s), etc.)
e. Create options for mutual gain (“win-win”)
f. Consult relevant statutes (including the Access to Information Act,
the Department of Justice Act, the Official Languages Act, the Privacy Act)
and relevant policy directives
4. Pointers for a negotiation:
a. Concentrate on interests, not positions
b. Separate the people from the problem
c. Listen carefully and actively
d. Respect the other party (e.g., any cultural, linguistic or other differences)
e. Create and propose options for mutual benefit (“win-win”)
f. Use objective standards
g. Assess progress in light of one's BATNA
h. Caucus if necessary
i. Anticipate and avoid responding to provocative tactics
j. Communicate frequently with the client
k. Remain within the limits of the negotiating mandate
Footnotes
Footnote 1
The Law Society of Upper Canada “Short Glossary of Dispute Resolution
Terms” (Toronto: 1992) at 6.
Return to footnote1referrer
Footnote 2
S.G. Goldberg; E.A. Frank; N.H. Rogers; Dispute Resolution: Negotiation,
Mediation, and Other Processes, (2nd ed.) (Boston: Little, Brown and
Company, 1992) at 3.
Return to footnote2referrer
Footnote 3
Fisher, Patton & Ury, Getting to Yes, 3-11.
Return to footnote3referrer
Footnote 4
Murray, at 184-185.
Fisher, Patton & Ury, at 5-7.
Return to footnote4referrer
Footnote 5
Murray, at 180-181.
Boskey, supra, note 2 at 10.
Return to footnote5referrer
Footnote 6
Ibid.
Return to footnote6referrer
Footnote 7
Fisher, Patton & Ury, supra, note 1 at xviii-xix.
Goldberg, Frank & Rogers, supra, note 6 at 37.
Return to footnote7referrer
Footnote 8
Fisher, Patton & Ury, Ibid.
Return to footnote8referrer
Footnote 9
Janos Nyerges, “Ten Commandments for a Negotiator”, (1987) 3
Negotiation Journal 21.
Roger Fisher, a noted authority in negotiation states:
It is no doubt possible that in a given case a lawyer may obtain a short-term
gain for a client by bluffing, threatening, actively misrepresenting the extent
of the lawyer's authority, what the client is willing to do, or other facts, or by
engaging in browbeating or other psychological pressure tactics. Yet many
lawyers and academic experts believe that a practice of trying to settle
differences by such tactics is risky for clients, bad for lawyers and bad for
society.
 I believe that it is not a sound practice to negotiate in a way that rewards
deception, stubbornness, dirty tricks, and taking risks. I think it wiser for our
clients, ourselves and our society to deal with differences in a way that
optimizes the chance of reaching a fair outcome efficiently and amicably;
that rewards those who are better prepared, more skilful and efficient, and
who have the better case as measured by objective standards of fairness; and
that makes each successive negotiation likely to be even better. (This does
not mean that a negotiator should disclose everything or make unjustified
concessions.)
Roger Fisher, “A Code of Negotiation Practices for Lawyers” (1985) 1
Negotiation Journal 105 at 106.
Return to footnote9referrer
Footnote 10
I. William Zartman & Maureen Berman, The Practical Negotiator (New
Haven: Yale University Press, 1982) at 132, 226.
Return to footnote10referrer
Footnote 11
See for example Eve Hill, “Alternative Dispute Resolution in a Feminist
Voice” (1990) 5 Ohio State Journal on Dispute Resolution 337 at 370. Ms.
Hill describes negotiation as a method of ADR that allows feminists to
inject a female perspective into the process of dispute resolution.
Return to footnote11referrer
Footnote 12
Jeffrey Z. Rubin and Frank E.A. Sander, “Culture, Negotiation and the Eye
of the Beholder” (1991) 7 Negotiation Journal 249 at 253.
Zartman and Berman, supra, note 20 at 229.
Return to footnote12referrer
Footnote 13
Fisher, Patton & Ury, supra, note 1 at 131-140.
Thomas R. Colosi, On and Off the Record: Colosi on Negotiation
(Dubuque: Kendall/Hunt Publishing Co., 1993) at 54.
Return to footnote13referrer
Footnote 14
Colosi, ibid. at 54-56.
Fisher, Patton & Ury, ibid. at 129-143.
William Ury, Getting Past No (New York: Bantam Books, 1991) esp. at 94-
104.
Return to footnote14referrer
Footnote 15
Thomas R. Colosi, On and Off the Record: Colosi on Negotiation
(Dubuque: Kendall/Hunt Publishing Co., 1993) at 9-11.
Return to footnote15referrer
Footnote 16
Colosi at 40-44.
 Return to footnote16referrer
Footnote 17
Fisher, Patton & Ury, supra, note 5 at 100.
Return to footnote17referrer
Footnote 18
Ibid.
Return to footnote18referrer
Footnote 19
The ideas found in this text have been derived from the works of a number
of authors. However, the basic steps enumerated in this part are taken
largely from Getting to Yes by Fisher, Patton and Ury.
Return to footnote19referrer
Footnote 20
Colosi, note 23 at 52-53.
Return to footnote20referrer
Footnote 21
A discussion of these tactics and how to deal with them can be found in Part
E of this text “Dealing with Difficult or Deceptive Conduct” at page 10.