Negotiation skills as viable ADR process, by Wahab Shittu, SAN

Disputes are an inevitable aspect of human interaction, occurring in workplaces, businesses, legal contexts, and personal relationships. Every society requires effective mechanisms for dispute resolution to prevent these disagreements from escalating into full-blown conflicts and to maintain peace. These mechanisms are essential for maintaining order and ensuring social harmony.

While litigation has traditionally been the primary method for resolving disputes, it can be costly, time-consuming, and adversarial, often damaging relationships. In response, Alternative Dispute Resolution (ADR) methods have become increasingly popular, such as arbitration, negotiation, mediation, conciliation, and hybrid processes. When a dispute arises, the parties involved have the flexibility to choose the resolution method that best suits their needs. The goal is to reach a mutually acceptable agreement or a legally binding decision. This article focuses on negotiation as a core ADR mechanism, discussing its principles, strategies, legal framework, and significance.

Understanding Disputes and Alternative Dispute Resolution (ADR)

What is a Dispute?

A dispute is a conflict or disagreement involving two or more parties, usually arising from differing interests, viewpoints, contractual commitments, or perceived entitlements. It can encompass individuals, businesses, labour unions, government bodies, or international organizations. A dispute typically involves a question of law, fact, or both.

 Types of Disputes

1. Legal Disputes: arise from contractual breaches, regulatory violations, or conflicting interpretations of the law.
2. Labour Disputes: This is common in employment settings, involving issues such as wages, working conditions, and job security.
3. Commercial Disputes: Occur in business transactions, partnerships, and trade agreements.
4. Personal Disputes: Involve interpersonal conflicts and family matters.

Alternative Dispute Resolution (ADR) as a Dispute Resolution Mechanism

The Black’s Law Dictionary[1] Defines ADR as a procedure for settling disputes by means other than litigation, such as arbitration and mediation. This implies that ADR covers a wide range of procedures that do not fall under the umbrella of litigation. Alternative Dispute Resolution (ADR) offers solutions that serve as alternatives to conventional courtroom litigation, typically providing expedient, cost-efficient, and adaptable approaches.

Characteristics of ADR

1.  Flexibility: unlike litigation, most ADR mechanisms offer parties flexibility. It implies the absence of technicalities in the procedure.
2. Cost Effective: ADR gives the parties a means to dispute resolution which does not require them to break the bank. It is cheaper than litigation a sit removes the necessity of paying for filing fees among others which are the highlights of litigation.
3. Speed: with ADR, parties are assured of timely resolution to their disputes as there is no timeframe for filing processes and waiting for replies from the other party which is what we have with litigation.
4. Preserves Relationship: this means of dispute resolution often opts for a win-win scenario, where both parties reach a mutually beneficial resolution without the need to have a clear winner to the dispute which is common in litigation cases.

Modes of Alternative Dispute Resolution

The underlying tenet of all Alternative Dispute Resolution mechanisms is the resolving of disputes without the necessity of going to court. There are several ADR mechanisms and we will briefly discuss what each entails.

1. Arbitration: this is the only known adjudicatory process in the sense that in arbitration, evidence is taken from the parties to the dispute, and an award is made or a judgment entered in favour of one party whose claim is sustained by admissible evidence. Parties who intend to have their dispute arbitrated must ensure an arbitration agreement is made to that effect. The decision from an arbitration is referred to as an arbitral award. This award is legally binding on the parties to an arbitration and on application to the court shall be enforced by the court provided due process is followed.[2] It is important to note that not all matters are arbitrable, such as matters involving crime, winding up, bankruptcy, and dissolution of marriage though they may be employed to determine ancillary matters like maintenance and child custody. [3]
2. Mediation: this is a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.[4] Any settlement agreement that is made as a result of the mediation is binding on the parties and is enforceable in court either as a contract, a consent judgment, or a consent award.[5]
3. Conciliation: this is a process in which a neutral third party meets with the parties to a dispute and explores how the dispute may be resolved

Definition of Negotiation

Negotiation is a process where two or more parties voluntarily engage in discussions to resolve their differences and reach a mutually satisfying agreement. It is essential in various human interactions, from everyday business transactions to complex international treaties.

Negotiation is emerging as the most widely used and effective approach. It facilitates structured discussions that help parties reconcile differences, identify common ground, and achieve mutually beneficial agreements. Unlike litigation, negotiation is flexible, cost-effective, and better at preserving relationships.

The decision reached at a negotiation is not binding on the parties unless they agree to be bound by it.[6] This highlights the need for the parties to come to the negotiating table voluntarily.

Principles of Negotiation

1. Voluntariness: as with all ADR methods, all parties must enter the negotiation process willingly. If both parties do not voluntarily agree to resolve the matter, then negotiation cannot be used.
2. Communication: open and effective dialogue is essential for understanding each party’s position and enabling parties to negotiate better when they understand the position of their counterpart.
3. Flexibility: negotiation is a flexible means of dispute resolution. It allows parties to adjust their expectations and strategies based on evolving discussions.
4. Mutually Beneficial: negotiation often involves making compromises and concessions to arrive at a mutually beneficial outcome that accommodates the interests of all parties.

Modes of Negotiation

Negotiation can be conducted through various means, including; face-to-face communication between parties, remote negotiation with the aid of technological advancement when physical meetings are not feasible, and written communication through formal exchange of proposals and counterproposals.

Relevant Skills Needed in Negotiation

1. Analytical Skills: The ability to critically evaluate information, identify legal issues, and develop logical arguments.
2. Communication Skills: Effective written and oral communication, including the ability to read verbal and non-verbal cues which can help you avoid miscommunication.
3. Bargaining Skills: The ability to engage in constructive negotiations to resolve disputes and reach agreements that are in the best interests of clients.
4. Persuasive Skills: The ability to influence others is an important negotiation skill which helps the other party see your position.
5. Active listening Skills: This ability is key for grasping someone else’s point of view during negotiations. Active listening means engaging fully with the speaker so that you can recall specific details later without needing reminders.

Stages of Negotiation

Negotiation typically follows a structured process:

1. Preparation Stage: before embarking on a negotiation, parties must take the time to adequately prepare for the negotiation by gathering relevant information and developing strategies. It is at this stage that the negotiator prepares the Best Alternative to a Negotiated Agreement (BATNA). The BATNA is the walkaway strategy of the party, it is the party’s best option which he will resort to in case the negotiation fails. The BATNA should be capable of implementation.
2. Ice-Breaking Stage: this is the first meeting of the parties. This meeting helps establish a rapport and set a positive tone for discussions between the parties.
3. Agenda Setting Stage: this is the stage at which parties identify key issues and prioritize discussion points.
4. Bargaining Stage: parties engage in discussions employing different negotiating tactics to achieve the goals they set, making offers, and seeking compromises.
5. Conclusion Stage: parties have reached the end of negotiations and have finalized the agreements reached in the course of negotiating.
6.  Execution Stage: parties implement the agreed terms and draft a formal agreement incorporating the terms of the agreement reached.

Strategies for Effective Negotiation

A well-planned negotiation strategy plays a major role in the likelihood of parties reaching a favourable outcome. A common strategy deployed in negotiation is the ´tit for tat´ method which involves responding either competitively or cooperatively by matching the opponent’s previous moves.

The strategy has five (5) broad rules. They are as follows:

Rule 1: Being Cooperative – this is simply the negotiator signalling a willingness to work together while remaining cautious to avoid exploitation.

Rule 2: Retaliate When Necessary – this is simply responding appropriately to competitive behaviour from the other side to avoid being exploited.

Rule 3: Forgive When Cooperation is Offered – where the other party abandons its competitive stance and embraces a cooperative stance that encourages constructive dialogue, the next move is to forgive the other side and proceed with the olive branch on offer.

Rule 4: Be Clear and Consistent – a negotiator should be consistent in his approach as it helps to establish trust in the negotiator and his willingness to resolve the dispute.

Rule 5: Stay Flexible – flexibility is one of the factors that usually determines the success or otherwise of a negotiation process. Common Negotiation Styles

Negotiating tactics/styles

Parties employ several tactics or styles in the negotiating process. They include but are not limited to the following;

1. Compete (I Win- You lose): Here, the negotiator takes a tough and aggressive stance, without considering whether the other party gains anything at all. The negotiator’s goal is to win the negotiation at all costs, which ruins any goodwill that may have existed between the parties and does not promote relationship restoration after the negotiation.
2. Leapfrogging: This entails making quick moves between points during talks. It can be used to conceal a party’s shortcomings or to draw the other party’s attention away from them.
3. Compromise (Win-win): Win-win strategies encourage negotiators to make concessions, consider the requirements and interests of the other party, and try to reach a solution that accommodates the other party.
4. Package deal: The package deal strategy allows one party to signal their unwillingness to agree until all points of contention are resolved. This method is effective when one party holds greater negotiating power and is distinctly different from the nibbling strategy.
5. Nibble/Piecemeal: with this strategy, the negotiator chooses to address the contentious issues individually. The topics are not all addressed at once; instead, after reaching a consensus on one, the parties go on to the next until all issues have been resolved.

Legal Framework of Negotiation and ADR in Nigeria

1. Arbitration and Mediation Act 2023: this Act repeals the Arbitration and Conciliation Act, Cap A18, laws of the Federation of Nigeria, 2004, and enacts the Arbitration and Mediation Act, 2023 to provide a unified legal framework for the fair and efficient settlement of commercial disputes by arbitration and mediation, and make applicable, the convention on the recognition and enforcement of foreign arbitral awards (New York Convention) to any award made in Nigeria or any contracting states arising out of international commercial arbitration.[7]
2. Regional Centre for International Commercial Arbitration Act 1999: The Act creates a regional centre for international commercial arbitration in Nigeria and gives the centre legal status to create a framework for fair and efficient settlement of commercial disputes arising in the region through arbitration and conciliation.[8]
3. United Nations Commission on International Trade Law Arbitration Rules[9]: it provides a comprehensive set of procedural rules upon which parties may agree for the conduct of arbitral proceedings arising out of their commercial relationship.
4. National Industrial Court Rules: encourages the use of ADR in resolving labour disputes.[10] The constitution also empowers the National Industrial Court with the power to establish an Alternative Dispute Resolution Centre in respect of matters within its jurisdiction.[11]

These legal provisions highlight the legitimacy and growing acceptance of ADR in Nigeria’s legal landscape.

Conclusion

Negotiation remains a cornerstone of effective dispute resolution, offering a balanced approach that prioritizes dialogue, cooperation, parties’ interests, and mutual benefit. By embracing ADR principles and legal frameworks, institutions and individuals can resolve conflicts amicably, ensuring a more harmonious and productive environment.

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[1] Black’s Law Dictionary 11th Edition

[2] Section 57(1) Arbitration and Mediation Act, 2023.

[3] United World Limited Inc v Mobile Telecommunication Services [1998] 10 NWLR (PT. 586) 106

[4] Black’s Law Dictionary 11th Edition

[5] Section 82(1) Arbitration and Mediation Act 2023

[6] Ekwueme v. Zakari (1972) ECSLR 631.

[7] Arbitration and Mediation Act 2023

[8] Section 3(a) Regional Centre for International Commercial Arbitration Act 1999

[9] 2013

[10] Order 24 National Industrial Court (Civil Procedure) Rules 2017

[11] Section 254C (3) Constitution of the Federal Republic of Nigeria 1999