Negotiation of some kind or another is often the first tool or strategy used to try and resolve a dispute. Those involved in the dispute may attempt to negotiate to try and stop the dispute from escalating and to achiever early resolution. If they fail they may engage lawyers, and the lawyers may engage in negotiation as first step before considering anything further, like sending off a formal demand as a precursor to filing court proceedings.
“Tactics” is not the same as “Strategy”.
An expert in ADR (alternative dispute resolution) will be mainly focused on developing an appropriate strategy for the dispute. The chief elements of the strategy will usually be -
- Contain the dispute and stop its further escalation;
- Create better forms of communication between the parties to the dispute;
- Isolate the core issues in the dispute;
- Understand the different perspectives concerning the origin of the dispute and the main issues;
- Find out what each party really wants to be able to exist the dispute;
- Seek out any common ground and mutual reasons to end the dispute;
- Develop a process for managing and resolving the dispute that each party is willing to commit to as a better alternative to taking the dispute to court;
- Manage that process skilfully to keep the parties engaged and committed to reaching an out of court resolution or settlement of their dispute;
- Safeguard and restore important pre-existing relationships wherever possible.
“Tactics” are usually employed before the parties choose to embrace ADR, when they or their lawyers are still aligned with the adversarial approach to the dispute. Different tactics are employed to gain the upper hand and score points or gain an advantage over your “opponent”. They can variously involve -
- intimidation and stand over tactics;
- bending the truth tactics;
- up the ante tactics to scare your opponent;
- faked rejection of offers, with intent to walk away and file proceedings tactics;
- pretend outrage/outbursts tactics
and so on. This is all part of what is called “positional negotiations” (that aim to make one party look stronger and the other weaker) rather than “interest based” methods of negotiations.
ADR practitioners tend to align with principled and interest based negotiation and try to steer the parties away from the adversarial style and tactics. The chief aim of the ADR specialist is to improve the conversation and communication between the parties in principled and ethical ways to influence an outcome that the parties will prefer to resorting to the courts and the adversarial process. It is not about who wins or loses, but about joint problem solving to come up with a solution that both sides can say “I can live with this”, and I would rather this than take my chances with an all out fight with the final decision left up to a third party (judge or tribunal).
Those who try to use tactics after agreeing to opt in to or participate in an ADR have either fundamentally misunderstood what ADR is about or have some other agenda. Whatever the case, the use of adversarial type tactics has the potential to derail the ADR effort.
Christopher Whitelaw
Barrister and Mediator
Commercial Disputes Management Centre, Lane Cove, Sydney
