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QLLM385-Topic 4-NATURE OF NEGOTIATION
Typology: Study Guides, Projects, Research
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Negotiation defined De Girolamo – negotiation is about joint decision making involving parties in conflict who strive to communicate with an opponent within a normative and psychological context about a resource they want or do not wish to give up. May involve two or more parties at the table with/without their representatives. Direct communication between parties. May have mixed motives, interests, wants and goals both conflicting and common. Mutual movement from initial position to joint/reciprocal action. Goal is to reach agreement but there’s no guarantee that one will be reached. More than one set of terms/outcomes possible. Why do we negotiate? To get what we want, to get something we cannot get ourselves, to do better than we can on our won (Fisher & Ury) and possible to preserve a relationship. Negotiation in the dispute resolution panorama First formal step along the panorama. Something parties do together to get an outcome they want. No TP involvement as direct negotiation occurs between parties. Process of negotiation: Gulliver’s stages Negotiation is comprised of an exchange of information which may or may not get to the bargaining stage. Could be as a result of misunderstandings being clarified and parties understanding each other’s motivation of their conduct. Gulliver’s models: (i) cyclical, (ii) developmental model. The Cyclical Model Info exchange + learning – occurs throughout negotiation Info exchange is critical. As info is exchanged, learning is enhanced about the other party’s positions. Strategies and tactical decision are dependent on the flow of information. As info is exchanged, issues become clear. The Developmental Model 8 stages: search for arena, composition of agenda and definition of issues, establishing maximal limits to issues in dispute, narrowing the difference, preliminaries to final bargaining, final bargaining, ritual affirmation, execution of the agreement. Stages reflect moving social interaction between the parties. They provide an insight into what goes on in a negotiation. The cyclical model informs the 8-stage process. Roberts & Palmer edited a few phases e.g. putting agenda is more difficult and so is defining the issues, so these should be separate. Add something between final bargaining and ritual affirmation. There also needs to be a recognition of what stage the agreement crystallises. Theirs is the ‘processual model’ which is exactly like the 8-stage process with the two edits.
De Girolamo Processual Arc 6-stage model. Unilateral articulation of positions – first session, discussion of rules and norms in legal ways, competitive with illusions of superiority and optimism. Information exchange – factual/evidentiary information exchange. Aim is to strengthen bargaining position and seek to influence others and protect against movement. Testing of positions – aim is to undermine other party’s confidence in order to lower their expectations. No potential outcomes considered. Shift in position – transition point to get parties to the next stage. Move to get parties to engage. Change in view of their assessment of their position. Bargaining – movement, appears to be cooperative but continues to be distributive. Parties start to engage in bargaining. Joint decision-making for final agreement – after bargaining an agreement only exists in principle but details need to be worked out. Cooperative bargaining and willingness to work together. Might have competition which brings parties back to negotiation. Objectives of stages appear to be undermining other party and persuading him of your strengths. Phases are not rigid and information exchange still occurs throughout. Negotiation is fluid and dependent on participants. Interactions occur within a normative/psychological context. 6 phases suggest a processual framework where negotiated order may be obtained. Strategy moves the negotiation forward. But social interaction is key, parties communicate to attain their objectives. Bargaining is just a phase in negotiation, not the whole process. Quotes Simon Roberts & Michael Palmer, Dispute Processes: ADR and the Primary Forms of Dispute Resolution (2005) Gulliver – the absence/presence of an authoritative TP produces a difference in the nature of a decision-making process. Intra-party negotiations have their own dynamics. Internal conflict can complicate negotiation where need is to present a united front. Moore – Gulliver 8-step model adopts some aspects of litigation. Assumes that negotiation will come to a successful conclusion. BUT Roberts & Palmer state that TP negotiation and adjudication is different. Bilateral negotiated agreements are founded on consent but in adjudication there’s an authoritatively imposed decision by the TP. Shah-Kazemi – gender and identity defining ethics shape setting where negotiation takes place which Gulliver has not explored. Debbie De Girolamo, The Fugitive Identity of Mediation: Negotiations, Shift Changes and Allusionary Action (2013) Stevens – negotiators are competitive in earlier stages and become cooperative in later stages. This is a strategy discussion and not a process of negotiation.