Author : VS Warrier
“A legal adjudication may be flawless but heartless but a negotiated settlement will be satisfying, even if it departs from the strict law” – JUSTICE KRISHNA IYER.
These profound words of Krishna Iyer signify the importance of Alternative Dispute Resolution (ADR) in general and negotiation in particular. The foremost and the most helpful and purposeful method to resolve a dispute is by mutual obligation. The best justification for negotiated settlement is that is that it is based on bipartite agreements and as such is superior to any arrangement involving third party intervention in matters, which essentially concern the parties. Nothing is more satisfying and more soothing than a cordially negotiated amicable settlement. It is supreme. It is sublime. It protects and preserves personal and business secrets, relationships and reputations. It heals the wounds and cures the pains. It avoids unnecessary anguish and expense.
Negotiation is defined as non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with the object of arriving at a negotiated settlement.
Gerard Nieranbarg has tried to define negotiation as follows: “ Negotiation depends on communication… negotiation can be considered an element of human behavior…dealt with by both the traditional and the new behavioral sciences, from history, jurisprudence, economics, sociology and psychology to cybernetics, general semantics, game and decision making theory, ……….the full scope, of negotiation is to broad to broad to be confined to one or even a group existing behavioral sciences”
Thus, Negotiation is a non-binding procedure in which discussions between the parties are initiated without the intervention of a third party with the object of arriving at a negotiated settlement of the dispute. In this procedure one party directly approaches the other with the offer of a negotiated settlement based on an objective assessment of each position. Objectivity and willingness to arrive at a negotiated settlement on that part of both the parties are essential characteristics of negotiation.
Negotiation is thus a compromise. Negotiation contemplates direct interaction between disputing parties. Negotiation is taught as one of the important legal methods of resolving conflicts at any level. There are five rules of negotiation, as analyzed by the Pepperdine University institute for Dispute resolution. They are
Beginning with prompt and polite manners, sending a co-operative message without jeopardizing main issues.
Retaliate in a case the other side is competitive
Forgetting and forgiving
Clarity and consistency in approach predictability
Though the principles are associated with international commercial negotiation, they form the core of fundamental principles of any negotiation.
Negotiation can be culminated into an amicable settlement only if the parties have a genuine desire and will, followed by earnest honest efforts and co-operation, to settle the dispute. Negotiation has little prospect of success, unless the parties are capable of a certain degree of rectitude, detachment and objectivity. Discordant notes do not a melody make; they produce noise instead of music.
Negotiation is highly complicated process and could also be achieved through mediation, which is a form of negotiation and could be more effective. It is a duty of every one in the legal fraternity to encourage negotiation and try to facilitate negotiation wherever it is feasible. Hence, a facilitator of negotiation is required to have following skills:
He should be diplomatic and should have argumentative skills to convince the parties.
He should be flexible enough to take stands and suggest remedies to the parties
He should always put his points before others very calmly, coolly and clearly.
He should patiently hear the arguments of other without interruption.
After hearing the parties, he should provide them legal positions/stands clearly so that they could understand legal implications of their acts and could thereby be able to arrive at a settlement.
He should facilitate settlement of dispute balancing the interests of both parties.
Counselling means giving advice or opinions or suggestions to clients when they consult him about their issues or problems. Dealing with clients plays important role in the success of a lawyer. Soft, decent and fair dealings with the clients make a lawyer popular among the client. In dealing with their clients the lawyers must be fair and honest. He should make honest and fair appraisal of the chances of success of a case and advise the client accordingly. If as a result of the examination, an advocate finds that the clients case is hopeless it is far better that he makes him understand this at once without allowing him to be fed with delusive hope for a while, at last to be taxed with fees and costs which he cannot but feel heavy, oppressive and unjust, particularly when he loses the matter in controversy. Thus, a fair and honest appraisal of the case is the quintessence of the counselling.
When an aggrieved person comes to the advocate, he is just like a patient who comes to the Doctor for treatment. The advocate should be patient enough to listen to him and should elicit everything that is material to comprehend/understand the problem and then to apply the law to decide upon the further course of action. Thus, art of listening and skill of eliciting material information play a vital role in the advocacy. Thus, a counsel must be a good and patient listener.
Counselling also demands a profound knowledge of law and also experience of having dealt with the similar matters. A counsel has to give good understanding of the laws and has to keep updating himself as to the recent amendments, precedents of standing of the Supreme Court and High Courts. It is only then that he could make accurate appraisal of a case before him.
Loosing the faith of the clients will prove injurious to his practice as a lawyer. In dealings with their clients the lawyers must be fair and honest. If the lawyer takes advantages of ignorance and literacy of his client, it will not pay him in the future. Dr. B. Malik in his work ‘Art of Advocacy’ summarizes the essentials of counseling as follows:
“Let me refer to your conduct towards a client who come to you for help. Receive him with kindness and listen with sympathy to all that he has to say. He may repeat himself, but do not snub him. Allow him to have his say in full. It may be declamation, it may be inactive and abuse of the other side. He may speak, not as if he were addressing a jury on whom he desires to impress the strength and truth of his case. But it is well that you should hear the whole tale; for it is desirable that you should not miss even one relevant fact, though you may have to get it by a process of sifting many irrelevant ones. It is less inconvenient to listen to superfluous facts than to stand the chance of missing what may be essential. Do not interrupt your client in his narration, but reserve your question to the end when he makes a pause”.
From the above observation following essentials of counsellings can be elucidated:
Receive the client with courteously.
Listen with sympathy to all that he has to say.
Allow him to say whatever he fells and don’t disturb him with unpleasant questions.
Not interrupt the client in his narration and ask question at the end to solicit additional information.
Not to do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.
Make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to effect his clients judgment in either engaging him or continuing the engagement.
Explain to his client all the weak and strong points of his case and the possible result.
Not lose the faith of the client
Nor lose the faith of the client.
Be fair and honest in dealing with clients and ill-treat his client.
Make honest and fair appraisal of the chances of success of a case and advise the client accordingly.
Negotiation and counseling are part and parcel of the Legal profession. The experience of negotiating a dispute as a student has been a learning experience to understand the nature of the process of negotiation and counseling, the skills required to be a good negotiator and the intricacies and complexities involved in the process.
It is a moral obligation on the part of the advocate and everyone in the legal fraternity and also a necessity in the present scenario of the Indian Justice, administrative system, to encourage negotiation and amicable settlement wherever possible so that the burden of the judiciary could be reduced and the parties could also have a satisfying settlement and could maintain amicable relations.