Negotiation and Conflict Resolution

Most disputes directly to litigation or actual litigation could be resolved much earlier and at lower cost, if the negotiation and conflict management were addressed in a disciplined manner. Many commercial negotiations could proceed even more efficiently and effectively if the negotiations have been addressed in a systematic way. In both situations, the relationships that would otherwise be destroyed or significantly damaged could be stored, maintained or even improved.
As a commercial lawyer with over 20 years of experience, I found that once a dispute arises, the majority of clients and their lawyers will take a decent location and focus on how to force their position on the side. Then they try, or threaten to seek the assistance of state power, ie, a court or other tribunal, to make some decisions in favor of their position. However, given the uncertainty and expense of litigation, often both parties are not satisfied with the results. In addition, an appeal or imminent threat exacerbates the difficulties.

Generally, lawyers are trained to advise customers not to disclose any information to the other side unless they are specifically requested to do so by specific legislation or Court order of the court. Extensive rules and legal principles have been developed that crackles just opened the steel doors that each side has built to prevent the leaking of information to the other side. Parties tend to err less disseminate information rather than more. This course has a "deterrent effect" on open communication between the parties at any stage of a dispute.

Of course, the disclosure of many types of information must be resisted in any matter, whether a dispute or negotiation of a disputed transaction. However, the tendency to minimize disclosure of information has resulted in a truncation of what would be a profitable exchange. Valuable opportunities to understand the interests, options and alternatives in the context of legitimate standards are significantly delayed and reduced, if not altogether lost.

Mediation has somehow helped to improve some of the shortcomings of litigation "fight". However, the traditional model of mediation, in which the parties meet, exchange opening statements and engage in face-to-face bargaining position, did not lead to a more efficient way previous dispute resolution. Often, intent parties of hard bargaining have used the process of mediation as a pretext to explore the weaknesses of the other party. This further lowers the effectiveness of traditional mediation.

In most litigation, settlements are reached or close to trial after the parties have engaged in costly interim proceedings, documentary discovery, depositions, examinations and cross-examinations. These processes are essential to the litigation process so that all parties and, finally, the Court or the court can be properly armed with all the relevant facts and documents that underpin the position of each team. Once this process is completed, the case is ready for trial.

Because the majority of cases resolve after this process large and expensive? One reason is that the parties have exchanged relevant meaningful information for the first time and now have a clearer vision and perspective of every other case. A better understanding of the real trial comes when it is too late for both sides given the enormous investment of time and money they put in every case. At that point, whatever the productive relationship the parties may have had is irreparably damaged. This is not only an efficient way to resolve anything.

A negotiation method developed and taught by Harvard Law School, Project negotiation attempts to sever the traditional processes. The method has two levels of efficiency depending on the cooperation and the opening of the opposite side. However, whatever the level of cooperation and openness of the other party, the method often moves the parties to a resolution faster and more efficiently. Furthermore, the method does not affect the rights, property or confidential information in any way. I used this method in my practice with great success over the last few years.

The method requires preparation by both the client and the lawyer in a way that may seem somewhat unconventional. No one can ensure that the use of the method will result in a favorable solution. However, if a resolution is not obtained after using the method, in the worst case, the method we were made to achieve a level of creative preparation to face the other side that can not be achieved in another way.

The method is based largely on the work and teachings of Professor Roger Fisher, Bruce Patton, William Ury and Scott Brown of the Harvard Project negotiation at Harvard Law School, Cambridge, Massachusetts and employs many of the ideas and methods as described to YES: Negotiating agreement without giving in, Second Edition, by Roger Fisher, William Ury and Bruce Patton (Penguin, 1991) and Come Together: Building Relationships As We Negotiate by Roger Fisher and Scott Brown (Penguin, 1988).

By Martin Z. Rosenbaum, B.Com., B.C.L., LL.B. ..