PREPARING CLIENT FOR NEGOTIATIONS

Introduction
Negotiation is a key component of legal practice, enabling parties to resolve disputes without
resorting to costly and time-consuming litigation. Advocates play a vital role in preparing their
clients for these negotiations to ensure they achieve the best possible outcomes. Proper
preparation requires a combination of legal expertise, strategic thinking, and effective
communication.
Steps to Prepare a Client for Negotiations
Understanding the Client’s Goals and Interests
The first step is for the advocate to understand the client’s objectives thoroughly. This involves:
✓ Identifying Priorities: Determining the client’s primary goals and what they are willing
to compromise on.
✓ Clarifying Expectations: Ensuring the client has realistic expectations about potential
outcomes.
✓ Assessing Emotional Factors: Understanding any emotional stakes that might influence
the client’s decision-making.
Educating the Client About the Process
Clients often lack familiarity with negotiation processes. An advocate must:
✓ Explain the Stages of Negotiation: Outline what the client should expect during the
negotiation.
✓ Highlight the Role of Each Party: Define the roles of the client, the opposing party, and
the advocate.
✓ Address Possible Scenarios: Prepare the client for possible outcomes, such as offers,
counteroffers, or deadlocks.
Gathering Relevant Information
Thorough preparation requires collecting all necessary facts and documents, including:
✓ Legal Research: Analyzing case laws, statutes, and precedents that strengthen the
client’s position.
✓ Evidence: Gathering documentation or proof that supports the client’s claims.
✓ Opponent’s Position: Researching the opposing party’s likely interests, priorities, and
weaknesses.
Role-Playing and Simulations
Practicing negotiation scenarios helps clients build confidence. The advocate might:

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 ✓ Conduct Mock Negotiations: Simulate conversations to prepare for different responses.
✓ Provide Feedback: Offer constructive critiques on the client’s tone, demeanor, and
arguments.
✓ Coach on Communication Skills: Teach active listening, assertiveness, and clarity in
presenting positions.
Managing Client Expectations and Emotions
Negotiations can be stressful, so the advocate should:
Prepare for Emotional Reactions: Help the client anticipate and manage emotional triggers.
✓ Encourage Patience: Reinforce the importance of staying calm and focused.
✓ Provide Reassurance: Offer support and maintain a positive outlook throughout the
process.
✓ Reviewing Legal and Financial Implications
Before entering negotiations, the advocate must:
✓ Explain Legal Risks: Clarify potential consequences of agreeing to certain terms.
✓ Discuss Financial Impacts: Analyze costs, payments, or settlements and their long-term
implications.
Challenges Advocates May Face During Preparation
✓ Client Reluctance: Clients may resist certain strategies or be unwilling to compromise.
✓ Uncertainty of Opponent's Strategy: The unpredictability of the opposing party’s
approach.
✓ Time Constraints: Limited time to gather information and prepare effectively.
✓ Communication Barriers: Ensuring the client fully understands legal jargon or complex
strategies.
In India, the legal framework that governs negotiations and the role of advocates in such
processes is not explicitly codified under a single statute. However, several laws and guidelines
indirectly address the principles and responsibilities related to negotiations. These include:
LEGAL FRAMEWORKS REGARD NEGOTIATIONS
1. The Advocates Act, 1961
Role of Advocates: Section 7 outlines the functions of the Bar Council of India, including the
regulation of professional conduct. Advocates are expected to act in their client's best interests
during negotiations.
Professional Standards: The Bar Council of India Rules, framed under this Act, emphasize
the advocate's duty to advise clients honestly and ethically.

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2. The Indian Contract Act, 1872
Foundation of Negotiation: Negotiations often lead to the formation of contracts. The Act
governs agreements, offers, acceptance, consideration, and the enforceability of contracts
resulting from successful negotiations.
3. The Arbitration and Conciliation Act, 1996
Alternative Dispute Resolution (ADR): This Act facilitates negotiations during conciliation
proceedings. Section 62-81 outlines the process of conciliation, where parties negotiate with
the help of a conciliator to resolve disputes.
4. The Code of Civil Procedure, 1908 (CPC)
Court-Annexed Mediation: Section 89 of the CPC encourages alternative dispute resolution
methods, including negotiation, mediation, and arbitration, as mechanisms for resolving
disputes outside court.
5. Specific Legislations for Commercial Disputes
The Commercial Courts Act, 2015: This Act mandates pre-litigation mediation for certain
commercial disputes. Negotiation is a key component of these mediation proceedings.
6. Companies Act, 2013
Corporate Negotiations: This Act governs corporate dispute resolutions and includes
provisions for negotiation in matters such as mergers, acquisitions, and shareholder
agreements.
7. Common Law Principles
Indian courts often rely on common law principles to guide negotiations, emphasizing good
faith, fairness, and reasonableness in negotiation processes.
IMPACT OF ADR IN INDIA
Alternative Dispute Resolution (ADR) mechanisms, including arbitration, mediation,
negotiation, conciliation, and Lok Adalats (people’s courts), have had a significant impact on
the Indian legal and socio-economic landscape. The following points summarize the influence
of ADR on India:
1. Reduced Burden on Judiciary
✓ India’s judicial system faces an immense backlog, with millions of cases pending across
courts. ADR provides an effective method to resolve disputes quickly and efficiently,
thereby reducing the judiciary's burden.
✓ For instance, commercial disputes and family matters often find quicker resolutions
through ADR compared to the lengthy court procedures.
2. Cost-Effectiveness
✓ ADR is generally more cost-effective than traditional litigation. The simplified
procedures and shorter timelines reduce the financial burden on the parties involved.

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3. Enhanced Access to Justice
✓ ADR methods, especially Lok Adalats and mediation, make justice more accessible to
marginalized and underprivileged groups. They provide platforms for resolving
disputes in a non-intimidating and affordable manner.
4. Improved Efficiency in Business Disputes
✓ Arbitration, especially in the realm of international and domestic commerce, has helped
expedite the resolution of business conflicts. This fosters a more conducive
environment for foreign investment and economic growth.
✓ Institutions like the Indian Council of Arbitration (ICA) and amendments to the
Arbitration and Conciliation Act, 1996, align India’s arbitration practices with global
standards.

5. Cultural Acceptance
✓ Mediation and conciliation resonate with traditional Indian practices of community-
driven conflict resolution. These methods ensure harmony and are particularly effective
in family, property, and community disputes.
6. Support for Specialized Dispute Resolution
✓ ADR mechanisms are tailored for sectors like real estate (RERA), intellectual property,
and consumer disputes. The establishment of bodies like NCLT (National Company
Law Tribunal) shows ADR's role in specialized areas.
7. Challenges
✓ Enforcement Issues: While ADR decisions are binding, challenges in enforcement and
delays can occur.
✓ Lack of Awareness: Many people, especially in rural areas, are unaware of ADR’s
benefits.
✓ Quality Concerns: The expertise and impartiality of arbitrators or mediators sometimes
come under scrutiny.

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 ✓ Institutional Growth: The need for robust ADR institutions and frameworks is still
evolving.
8. Legal and Policy Reforms
✓ The Indian government has introduced initiatives to promote ADR, such as the
Commercial Courts Act, 2015, mandating pre-litigation mediation.
✓ Supreme Court rulings and judicial support for ADR mechanisms have strengthened its
role in the legal ecosystem.
9. Future Outlook
✓ As India integrates more closely with global markets, the demand for efficient and
effective dispute resolution will grow. ADR mechanisms, with their flexibility and
speed, are likely to become indispensable.
✓ Further investment in awareness campaigns, training arbitrators and mediators, and
improving institutional frameworks will enhance ADR's efficacy.
In summary, ADR is transforming India's dispute resolution framework, fostering a more
efficient and harmonious society while supporting economic growth. However, continued
reform and widespread adoption are necessary to maximize its potential.
Landmark Caselaws
Salem Advocate Bar Association v. Union of India (2005)
In this case, the Supreme Court directed the implementation of Section 89 of the Code of Civil
Procedure (CPC), 1908, which mandates courts to refer cases to ADR methods, including
negotiations, when feasible.
Made negotiation and other ADR techniques an integral part of the Indian legal process to
resolve disputes efficiently.
Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. (2011)
The Supreme Court distinguished between arbitrable and non-arbitrable disputes. While the
case focused on arbitration, it highlighted the need to resolve private disputes through
negotiated settlements wherever possible before resorting to litigation.
Impact: Reinforced the idea that negotiation and other ADR mechanisms should precede court
action when appropriate.
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. (2010) 8 SCC 24
The Supreme Court laid out guidelines for referring cases to ADR, including negotiations,
mediation, and conciliation. The judgment emphasized that disputes involving parties'
relationships (e.g., matrimonial or contractual disputes) should be referred to ADR for
resolution.
Impact: This case underscored the significance of non-litigious methods of resolving disputes
and encouraged negotiation as a viable first step in dispute resolution.

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State of Jammu and Kashmir v. Dev Dutt Pandit (1999) 7 SCC 339
The court acknowledged the importance of negotiations in resolving employer-employee
disputes and reducing the adversarial nature of litigation.
Impact: Encouraged the use of negotiated settlements to resolve conflicts amicably and
maintain ongoing relationships.
Merits of Negotiation
1. Time Efficiency
✓ Indian courts are notorious for their backlog of cases, with disputes often taking
decades to resolve. Negotiation provides a faster alternative by allowing parties
to engage directly without the procedural delays inherent in litigation.
✓ For example, family disputes, commercial conflicts, and property matters can
often be resolved in weeks or months through negotiation, compared to years in
court.
2. Cost-Effective
✓ Litigation in India can be expensive, involving court fees, lawyer fees, and other
ancillary costs. Negotiation eliminates many of these expenses by cutting down
on legal representation and procedural formalities.
✓ This affordability makes negotiation accessible to a broader segment of society,
particularly for individuals and small businesses.

3. Flexibility
✓ Negotiation allows parties to set their own terms and structure the process
according to their convenience. Unlike litigation, which is bound by rigid legal
frameworks, negotiation is informal and adaptable.
✓ This flexibility enables solutions tailored to the specific needs and interests of
the parties, which are often more sustainable and satisfactory.

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 4. Preservation of Relationships
✓ Litigation tends to be adversarial, often damaging relationships between the
parties involved. In contrast, negotiation emphasizes mutual understanding and
collaboration, making it particularly useful in cases where maintaining a
relationship is important, such as family or business disputes.
5. Confidentiality
✓ Court proceedings are generally public, which can expose sensitive matters to
unnecessary scrutiny. Negotiation, however, is private and confidential, offering
parties a secure environment to discuss and resolve issues.
✓ This confidentiality is especially valuable in high-profile cases or disputes
involving sensitive information.
6. Empowerment and Control
✓ Negotiation gives the disputing parties more control over the outcome. Unlike
court decisions imposed by judges, negotiated settlements are mutually agreed
upon, fostering a sense of empowerment and fairness.
7. Cultural Resonance
✓ Negotiation aligns with traditional Indian conflict-resolution practices, such as
community mediation and panchayat systems. These culturally familiar
methods often resonate with rural and semi-urban populations, making
negotiation a more accepted and effective approach in such areas.
8. Reduction in Judicial Burden
✓ By resolving disputes outside the courtroom, negotiation significantly reduces
the workload of Indian courts. This helps streamline the judiciary's functioning,
allowing it to focus on more complex and serious cases.
9. International Acceptance
✓ Negotiation is a globally recognized ADR method. In commercial disputes,
particularly in the context of foreign investments and international trade,
negotiation helps India align with global dispute resolution standards, boosting
investor confidence.
Demerits of Negotiation
1. Power Imbalances
✓ One of the major drawbacks of negotiation is the potential for power imbalances
between the parties. In cases involving unequal bargaining power, such as
disputes between large corporations and individuals, the weaker party may feel
coerced into accepting unfavorable terms.
2. Lack of Enforcement

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 ✓ While negotiated settlements are binding when documented in agreements,
enforcing them can sometimes be problematic. A party may back out of the
settlement, necessitating court intervention, which defeats the purpose of
negotiation.
3. No Precedent Value
✓ Unlike court judgments, negotiated settlements do not create legal precedents.
This can be a disadvantage in cases involving legal principles that could benefit
from a judicial ruling for future reference.
4. Dependence on Good Faith
✓ Negotiation relies heavily on the willingness of parties to participate in good
faith. If one party acts dishonestly or refuses to cooperate, the process becomes
ineffective.
5. Limited Applicability
✓ Negotiation is not suitable for all types of disputes. Criminal cases,
constitutional matters, and issues requiring strict legal interpretation cannot be
resolved through negotiation. This limits its applicability within the Indian legal
system.
6. Lack of Formality
✓ The informal nature of negotiation, while an advantage in some respects, can
also be a drawback. Without formal guidelines, the process can become
disorganized, leading to ineffective outcomes or prolonged discussions.
7. Potential for Exploitation
✓ In the absence of a neutral third party, there is a risk of exploitation, especially
when one party has more resources or legal knowledge. This can result in unfair
settlements, undermining the principles of justice.
8. Cultural and Social Barriers
✓ In India, cultural norms and societal hierarchies can sometimes hinder the
effectiveness of negotiation. For instance, in patriarchal communities, women
may face challenges in asserting their rights during negotiations.
9. Limited Expertise
✓ Successful negotiation often requires skilled negotiators or legal advisors. In
India, particularly in rural areas, there is a lack of trained professionals to
facilitate effective negotiation, reducing its success rate.
10. Risk of Non-Resolution
✓ Unlike litigation, which guarantees a verdict, negotiation may not always lead
to a resolution. If parties fail to reach an agreement, the time and effort spent on
negotiation may go to waste.

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Negotiation in the Indian Legal Framework
The Indian legal system recognizes negotiation as an integral part of ADR, as codified under
Section 89 of the Code of Civil Procedure (CPC), 1908. The provision encourages courts to
refer disputing parties to ADR methods, including negotiation, if they believe it could result in
an amicable settlement. Furthermore, initiatives like pre-litigation mediation under the
Commercial Courts Act, 2015, and the establishment of Lok Adalats promote negotiation and
similar mechanisms.
Notable case laws have also strengthened the role of negotiation. For instance, in Salem
Advocate Bar Association v. Union of India (2005), the Supreme Court emphasized the
importance of ADR and directed its implementation. Similarly, in K. Srinivas Rao v. D.A.
Deepa (2013), the court highlighted negotiation's role in resolving matrimonial disputes.
Future of Negotiation in India
With growing awareness and institutional support, negotiation is poised to play an even greater
role in the Indian legal system. To maximize its potential, certain steps are necessary:
1. Training and Awareness
✓ Training programs for lawyers, judges, and mediators should focus on negotiation
skills. Public awareness campaigns can educate people about its benefits.
2. Standardization
✓ Establishing guidelines and frameworks for negotiation can improve its efficiency and
reliability.
3. Technology Integration
✓ Online Dispute Resolution (ODR) platforms can facilitate negotiations, especially in
the wake of the COVID-19 pandemic, which highlighted the importance of digital
solutions.
Role of Negotiation in Civil Trials
Negotiation plays a critical role in civil trials, offering an alternative to prolonged litigation by
fostering amicable settlements. It is a key component of the pre-trial and trial process, and its
importance has grown as courts and litigants increasingly seek efficient, cost-effective, and
mutually beneficial dispute resolution methods. Here’s an overview of the role negotiation
plays in civil trials:
1. Early Resolution of Disputes
✓ Negotiation often occurs before the formal trial begins, either as part of pre-litigation
discussions or during the case management phase.
✓ Many civil cases settle through negotiation, avoiding the need for a full trial, which
saves time and resources for both parties and the judiciary.

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2. Encouragement by Courts
✓ Courts actively encourage parties to negotiate during civil trials. Under Section 89 of
the Code of Civil Procedure (CPC), 1908, Indian courts can refer disputes to
Alternative Dispute Resolution (ADR) mechanisms, including negotiation, if an
amicable settlement seems possible.
✓ Judicial guidelines, such as those established in Salem Advocate Bar Association v.
Union of India (2005), mandate efforts to resolve disputes outside the courtroom
whenever feasible.

Conclusion : Preparing a Client for Negotiations

Effective preparation is the cornerstone of successful negotiations. When a client is thoroughly

prepared, they are more likely to approach the process with confidence, clarity, and a strong
understanding of their objectives. Preparing a client involves not only educating them about
the negotiation process but also helping them define realistic goals, anticipate challenges, and
strategize effectively.

A well-prepared client understands the importance of flexibility, active listening, and

maintaining composure, all of which are critical to reaching a mutually beneficial resolution.
Additionally, equipping the client with insights into the opposing party's interests and potential
leverage points can significantly enhance their position.

Ultimately, thorough preparation fosters collaboration, reduces misunderstandings, and

increases the likelihood of a favourable outcome. In the context of the Indian legal system,
where negotiation is often a preferred alternative to litigation, preparing clients adequately is a
vital step toward resolving disputes efficiently and harmoniously.

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