HIMACHAL PRADESH NATIONAL LAW UNIVERSITY,
SHIMLA
16 MILE, SHIMLA-MANDI NATIONAL HIGHWAY, GHANDAL
DISTRICT SHIMLA, HIMACHAL PRADESH-171014
(NEGOTIATION AS AN ADR PROCESS: A BRIEF OVERVIEW)
[Alternative Dispute Resolution]
Course In-charge Submitted by
Dr. Pushpanjali Sood Suraj Kr. Pandey
Assistant Professor of Law B.A. LL.B. 9 th Semester,
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Enroll no. 1020192057
ACKNOWLEDGEMENT
I am using this opportunity to express my gratitude to everyone who supported me throughout
the completion of this project.
I would like to acknowledge the support of my subject teacher,Dr. Pushpanjali Sood, Assistant
Professor of Alternative Dispute Resolution, at HPNLU, for giving me the opportunity to work
on this topic and learn all along the process of its completion. I am thankful for your truthful and
illuminating views on a number of issues related to the project.
Also, I am grateful for the contribution of my ever-encouraging seniors who have helped me in
every step of the research.
Furthermore, I would like to thank the supportive staff at the Himachal Pradesh National Law
University, who gave me the permission and assistance in accessing the equipment required for
the successful completion of this project.
I am thankful for their aspiring guidance, constructive criticism, and friendly advice during the
project work. This assignment could never have been possible without each one’s help.
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DECLARATION
I, Suraj Kumar Pandey, hereby declare that this project work titled “Negotiation as an ADR
Process: A brief Overview” is the result of my original piece of research work conducted under
the supervision of Dr. Pushpanjali Sood, Assistant Professor of Alternative Dispute Resolution,
Himachal Pradesh National Law University, Shimla. In instances where references to other
works have been cited, full acknowledgement has been given. This work has never been
submitted in whole or in part in any institution for any award(s).
Name of the student:
Suraj Kumar Pandey
ABBREVIATIONS
1. AIR – All India Reporter
2. Anr. – Another
3. Dr. – Doctor
4. Hon’ble – Honourable
5. Ors. – Others
6. S.C. – Supreme Court
7. v. – Versus
8. ADR- Alternative Dispute Resolution
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TABLE OF CONTENT
ACKNOWLEDGEMENT..........................................................................................................................................
DECLARATION........................................................................................................................................................
ABBREVIATIONS....................................................................................................................................................
I. Introduction.............................................................................................................................................................
II. Problem Profile:.....................................................................................................................................................
III. Research Methodology:........................................................................................................................................
IV. Objectives:............................................................................................................................................................
V. Hypothesis:............................................................................................................................................................
VI. What is negotiation...............................................................................................................................................
VII. Characteristics of negotiation..............................................................................................................................
VIII. Advantages of negotiation.................................................................................................................................
IX. Disadvantages of negotiation...............................................................................................................................
X. Steps for negotiation..............................................................................................................................................
XI. TYPES OF NEGOTIATION:..............................................................................................................................
1. DISTRIBUTIVE NEGOTIATION..................................................................................................................
2. INTEGRATIVE NEGOTIATION...................................................................................................................
3. MULTIPARTY NEGOTIATION....................................................................................................................
4. TEAM NEGOTIATION...................................................................................................................................
XII. Conclusion..........................................................................................................................................................
XIII. BIBLIOGRAPHY..............................................................................................................................................
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I. Introduction
Alternative dispute resolution (ADR), also known as external dispute resolution (EDR), is
basically a method to resolve a dispute outside the court, i.e., without any interruption from the
court. At this point in time, when there are many cases pending before the court and there are not
sufficient judges and time to resolve them all in court, ADR gained widespread acceptance to
resolve disputes. There are many methods of ADR, like mediation, arbitration, conciliation and
many more.
Negotiation is also a prominent method of ADR. When two or more parties have different
interests and want to come to a mutually acceptable conclusion, they opt for negotiation as an
ADR method.
II. Problem Profile:
Negotiation, while widely utilized, presents complex challenges in practice. Issues such as power
imbalances, cultural nuances, and ethical considerations can influence the negotiation process.
Exploring the intricacies of negotiation is imperative to comprehend its potential and limitations,
providing insights into how it can be optimized for diverse legal scenarios.
III. Research Methodology:
The research methodology used in this project is entirely Doctrinal. The data collected and used
is secondary, i.e., inferences drawn from previous materials written by eminent writers, research
papers, journals, and other works in the same field of study. Full acknowledgment has been
given in instances where the material has been taken.
IV. Objectives:
1. To analyze the principles and theories that underpin negotiation as an ADR mechanism.
2. To evaluate the role of negotiation in achieving fair and equitable settlements in legal disputes.
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3. To explore the ethical considerations in negotiation and their impact on the resolution process.
V. Hypothesis:
Negotiation, when guided by ethical considerations and a nuanced understanding of power
dynamics, can serve as an effective and equitable ADR mechanism across various legal domains.
VI. What is negotiation
Negotiation is derived from the Latin word ‘negotiari’ which means ‘to carry on business, do
business’. Negotiation is very prominent among Indians; we get to see it from the street while
negotiating the price of anything with the big multinational companies while negotiating deals
with them. Negotiation is defined as self-counseling between the parties to resolve the dispute. In
negotiation, parties, with their own will, by discussing politely and patiently, try to come up with
a solution that is acceptable to both parties regarding the issue.1
Negotiation is a process of discussion and communication between two or more parties with the
aim of reaching an agreement or resolving a dispute. It involves identifying common interests,
exploring potential solutions, and finding compromises that satisfy all parties involved.2
One of the key reasons why negotiation is important is its ability to preserve relationships.
Unlike litigation, which often results in winners and losers, negotiation allows people to work
together towards a resolution that meets everyone’s needs. This collaborative approach fosters
understanding, builds trust, and maintains positive connections for future interactions.
Moreover, negotiation provides a cost-effective alternative to legal proceedings. Litigation can
be time-consuming, expensive, and emotionally draining for all parties involved. By engaging in
negotiations instead, individuals can save valuable time and resources while still achieving their
desired outcomes.
1 https://shodhganga.inflibnet.ac.in/bitstream/10603/41488/11/11_chapter%204.pdf [11] V.G.Ranganath
2Non-Adjudicatory Modes of ADR: Conciliation, Mediation and Negotiation, Shodhganga
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Additionally, negotiation promotes creative problem-solving. It encourages participants to think
outside the box and explore innovative solutions that may not have been considered initially.
This flexibility allows for unique agreements tailored specifically to the needs of those involved 3.
Negotiation empowers individuals by giving them control over the outcome of their disputes.
Rather than relying on judges or arbitrators to make decisions on their behalf, negotiators have
the opportunity to actively shape the terms of their agreements4.
VII. Characteristics of negotiation
Voluntary: This is one of the important characteristics of negotiation, i.e., it should be
completely voluntary, and no party can be forced to negotiate with the other party. Whichever
party wants to negotiate will send a letter to the other party, asking to negotiate. If the other party
agrees to negotiate without any force or threat, only then can both parties take further steps to
negotiate.
Bilateral/multilateral: Negotiation can be conducted between two or more parties, as many as
may be required.
Non adjudicative: Negotiation is a process that includes only parties to the issue to get a
solution amicably and no third neutral party takes part in the negotiation process.
Informal: unlike other alternative dispute resolutions, negotiation is an informal method. There
are no rules defined for negotiation; parties to the issue make their own rules with mutual
discussion and acceptance.
Flexible: Negotiation totally depends on the choice of parties, i.e., where it will take place, when
it will take place, what will be the topic of negotiation, which approach they will take, etc.
3 Alternative Dispute Resolution: Negotiation, LawShelf
4 Saroj Murmu, Negotiation: Meaning, Scope, Advantage & Disadvantage, Legal Bites (December 09, 2023)
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VIII. Advantages of negotiation
● Negotiation is a flexible process, i.e., it depends on the discretion of the parties as to
whether they want to opt for negotiation to resolve the issue or not; if yes, where it should
be conducted; in how many meetings the negotiation should be done; and there are no
specified rules for negotiation; parties can conduct it in their own way.5
● Unlike other issue resolving processes (e.g., litigation, arbitration, etc.), it is more likely
to come to a conclusion that can be favorable for both parties.
● It is a voluntary process and can only be opted for with the consent of each party. It is the
discretion of the parties whether they want to negotiate or not and the decision of any
party shouldn’t be forced or manipulated by the other party.
● Negotiation involves only parties to the issue and there is no interference from any third
party for dispute resolution, which is a great advantage for the parties who don’t want to
involve any outsiders in the issue.
● Negotiation is the process that only binds the parties to an issue, unlike other processes
(e.g., litigation). For example, in litigation, if a decision is passed by the court, then it will
be taken into consideration or, as a in further similar cases, but in negotiation, there’s
nothing like that; if somebody gets into a similar dispute with someone else, then it is not
necessary to take their decision into consideration i.eThey can come to a different
conclusion.6
● since in negotiations, disputes are resolved amicably, which enhances the relationship
between the parties for future interactions.
● As negotiation is a voluntary process, there will be no court fees or other expenses, which
makes it a less expensive dispute resolution process compared to others.
● Evidently, negotiation is a faster process to resolve any dispute, as there is no interruption
by the court or any other third party to keep giving dates for the hearings to resolve the
issue.
● Negotiation is always a good option for any sensitive issue because this is a very private
resolution process that only includes the parties to the dispute.
5 Alternative Dispute Resolution: Negotiation, LawShelf (March 31, 2020)
6 http://www.legalservicesindia.com/article/245/Negotiation-Mode-Of-Alternative-Dispute-Resolution.html
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IX. Disadvantages of negotiation
● If the negotiation is conducted between the unequal parties, then there are huge
chances that the stronger party will get more benefits as compared to the weaker
party, which is morally wrong.
● Where there are benefits to the absence of the third party, there are also drawbacks.
Due to the absence of third party, there are chances in negotiation that the parties will
not come to any agreement and all the time and money incurred by the parties will be
a waste.
● If one of the parties doesn’t know about their rights, then due to the absence of this
neutral party, there are huge chances that the other party can take advantage of that
party.7
● If any party changes its mind, backs off after initiating negotiation, and withdraws
itself from the proceedings of negotiation, then the amount of time and money
invested in the negotiation will become a waste.
X. Steps for negotiation
● Preparation: Before becoming a part of the negotiation process, parties need to
prepare themselves for what can be the Best Alternative to a Negotiated Agreement
(BATNA) and what can be the Worst Alternative to a Negotiated Agreement
(WATNA). They also need to decide whether the other party is willing to resolve the
dispute or not.8
● Discussion: Before conducting negotiation, setting ground rules for the negotiation is
crucial: what will be the venue of the negotiation, timings, what will be the approach
they want to go with etc.
● Clarification of goals: Parties to the negotiation should have to clarify their goals and
viewpoints and resolve any misunderstandings.
7 See Kraut, Domestic Relations Advocacy-Is There a Better Alternatve?, 29 VILL. L. REV. 1379 (1984) (outlining
the special role of the mediator in family dispute proceedings in Chester County, Pa.)
8 Non-Adjudicatory Modes of ADR: Conciliation, Mediation and Negotiation, Shodhganga (March 31, 2020)
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● Bargaining and problem solving: this is the most important part of the negotiation
process. Parties to the negotiation share their points of view, adjust according to the
situation and come to a conclusion that is acceptable to all parties.
● Agreement: after coming to a conclusion, an agreement is made according to the
decided solution of the dispute and then signed by the parties to the negotiations.
● Implementation: After signing the agreement, parties need to implement and operate
according to the agreement.
● Prepare alternatives: It’s important to consider alternative options if an agreement
cannot be reached through traditional negotiations. Brainstorm potential alternatives
before entering into negotiations so that you have backup plans ready if needed.
XI. TYPES OF NEGOTIATION:
Negotiation is an important skill for the modern professional. Sometimes, negotiation also
involves meeting each other halfway as a compromise when both sides are on opposite sides of
the spectrum. There are various types of negotiation:
1. DISTRIBUTIVE NEGOTIATION
Distributive negotiation is when two parties bargain over a single product or issue, such as price.
For example, negotiating with a dealer over the price of a second-hand vehicle or bargaining
with a street vendor. Here, one party wins and the other has to take a step back and suffers a loss.
Your success eventually depends on your distributive negotiation skills.9
2. INTEGRATIVE NEGOTIATION
Do you know what happens when representatives of an employees’ union meet the management
with their demands? They discuss, argue, present, oppose, convince, and so on. Then, they strike
a deal on salaries and other benefits. This is called integrative negotiation. It is one of the types
of negotiation where there is more than one issue that has to be put through the negotiation
9 R.B. PORTER, PRESIDENTIAL DECISION MAKING: THE ECONOMIC POLICY BOARD 123-56 (1980). It
appears that the Soviets were looking at other grain markets, and some Russian officials did not like the publicity
that the purchases would generate. Id. at 125 & n.3.
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process. Both parties gain something from the negotiation. An integrative negotiation process
ensures a win-win situation.10
3. MULTIPARTY NEGOTIATION
The multiparty negotiation process involves three or more parties undertaking various
negotiation strategies to drive home their points. When six friends are deciding the venue of the
party and discussing its pros and cons, the type of negotiation can be said to be multiparty.
4. TEAM NEGOTIATION
This type of negotiation process takes place between the two teams. For example, negotiation
strategies between the teams of two companies that are looking to merge are called team
negotiations. While putting together a negotiation team, a company looks for members with
excellent negotiation skills and highly-developed strategic thinking capacities. Being a master
negotiator is not rocket science. Neither is it an overnight miracle. It is a five- stage framework
that can be learned, practiced, and applied. 11
XII. Conclusion
Alternative dispute resolution (ADR) includes many methods to resolve disputes; one of them is
negotiation. When parties to a dispute want to resolve it amicably, they opt for negotiation. In
negotiation, there are high chances to reach a conclusion that is good for both parties and get
satisfaction with the solution. But sometimes, due to the absence of the third neutral party, there
are chances that either party to the negotiation may not get a solution or one party will wrongly
use its position or any party can back off at any time. Therefore, negotiation is a great method to
resolve disputes.
Negotiation is not a supernatural practice. Nor is it rocket science requiring a Ph.D. Rather, it is a
fundamental human act, the process that enables the trading of goods and services, favors and
obligations. Negotiation is the protocol of exchange. If negotiation is going on all the time, most
10 See J.T. DUNLOP & J. HEALY, COLLECTIVE BARGAINING: PRINCIPLES AND CASEs 53-68 (1953).
11 Dunlop & Higgens, "Bargaining Power" and Market Structures, J. POL. ECON., Feb. 1942, at 1-26
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often it is practiced without conscious attention. Instead of encouraging us to pursue results we
desire, our culture regards the act of bargaining itself as somehow unseemly. It depicts the
process as one in which two people try to take advantage of each other. To identify our
objectives and seek to obtain them strategically is thought to be manipulative. Negotiation to be
successful needs strategy and don't leave our negotiations to chance.
There are few social skills more useful than the ability to negotiate. To deny this is to deny one
of the most fundamental human activities. From the stone age to the 21st Century, history has
moved forward through exchanging, bartering, and buying and selling services and products.
During a negotiation, it would be wise not to take anything personally. If you leave personalities
out of it, you will be able to see opportunities more objectively. Either we're going to solve this
by realistic negotiation or there will be blood on the border. If you come to a negotiation table
saying you have the final truth, that you know nothing but the truth and that is final, you will get
nothing. Let us move from the era of confrontation to the era of negotiation. Negotiation in the
classic diplomatic sense assumes parties are more anxious to agree than to disagree. The most
difficult thing in any negotiation, almost, is making sure that you strip it of the emotion and deal
with the facts. And there was a considerable challenge to that here and understandably so.
There's no road map on how to raise a family: it's always an enormous negotiation
Negotiation in the classic diplomatic sense assumes parties are more anxious to agree than to
disagree. Let us never negotiate out of fear. But, let us never fear to negotiate. The most difficult
thing in any negotiation, almost, is making sure that you strip it of the emotion and deal with the
facts. And there was a considerable challenge to that here and understandably so. The single
biggest danger in negotiation is not failure but to be successful without knowing why you are
successful. Flattery is the infantry of negotiation. Effective negotiators have a style that those
whom they are trying to influence, relate to and admire. Negotiations are a euphemism for
submission if the shadow of power is not cast across the bargaining table. The ‘Negotiation’ can
be invoked at any time, even if the matter is pending in the Court of Law. Similarly it can be
terminated at any time
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Finally, the mode of ADR through Negotiation provides flexible procedure, strict procedure of
law is not applicable. It is the option of the parties to decide their fate and Advocate can also
negotiate with other parties for amicable settlement. Here negotiation is nothing but discussion
to arrive at a settlement.
XIII. BIBLIOGRAPHY
● https://www.indeed.com/career-advice/career-development/types-of-negotiation
● https://www.pon.harvard.edu/tag/types-of-negotiation/
● https://harappa.education/harappa-diaries/negotiation-skills-process-types-and-
strategies/
● https://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/03.html
● https://www.legalserviceindia.com/legal/article-5049-basics-of-negotiation-and-it-s-
process.html
● https://www.legalservicesindia.com/article/245/Negotiation-Mode-Of-Alternative-
Dispute-Resolution.htm
● Dunlop & Higgens, "Bargaining Power" and Market Structures, J. POL. ECON., Feb.
1942, at 1-26
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