This article has been written by Tanisha Kohli, by pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.
For law students, an important extracurricular activity is a participation in competitions that simulate and recreate real-world scenarios such as courtrooms and negotiation meetings. Competitions that replicate a courtroom are known as moot court competitions. Most law colleges have a society that takes responsibility for training students to participate in moot courts and facilitating the selection of students who will participate in the competitions organised by law colleges across the world.
Courtrooms are however not the only mode to resolve a dispute. There are various other methods that are clubbed under the category of Alternate Dispute Resolution (ADR). These alternate methods include negotiation, mediation, client counselling among others. Competitions that recreate a negotiation meeting, or a mediation session, or a scenario of client counselling are known as ADR competitions. Colleges may have a separate ADR society that trains students and facilitates their participation, or the moot court society itself may take the responsibility for ADR competitions.
What is negotiation?
It is a method to resolve a dispute which has arisen between parties. Instead of approaching the court, the parties choose to meet and try to resolve the dispute amicably, in a manner that is beneficial to both sides.
The parties to negotiation in a competition can take different combinations such as client and counsel negotiating with the other side’s client and counsel. There may also be two counsels from each side, who come to the negotiation table. The roles of ‘client’ and ‘counsel’ may be fixed for the entire competition, or it may be necessary for both participants to adopt both roles.
Negotiation vs. Mediation
The main difference between the two methods of dispute resolution is that in mediation, a mediator is also present, in addition to the parties of negotiation. A mediator is a neutral person who listens to the parties and moves the discussion forward.
The negotiation problem
The facts that govern the negotiation are given to the parties through two modes.
- General information – This information is made available to both the negotiating teams. It may contain a brief introduction about who the parties are, what is the dispute between them, and the stand of each party. Generally, for the preliminary rounds, this information is made available a few days before the competition.
- Confidential information – Both negotiating teams get separate confidential information. This information is not known to the other team. This information may be made available a few hours before the round begins.
Demarcating the roles
The teams must decide who will play which role. It is important that the roles be defined between the participants. This is important so that the participants do not speak over each other, and interrupt their own teammate, or that one teammate does not do all the talking. Coordination between the team is of utmost importance.
The client – The client is there to present her side of the story i.e the facts. For instance, in a dispute about child custody between a separated couple, the client is in the best position to speak about the parents’ relationships with the child, their work schedules, etc. If a settlement is reached between the parties, then the final approval of the same should rest with the client. It is important that the client refrains from pointing out any legal aspects of the dispute.
Counsel – The counsel is there to ensure that the interests of the client are protected. Generally, the counsel will propose the agenda for the meeting and will take the discussion forward, ensuring that the meeting does not keep going in circles. Any relevant points of law will be brought up by the counsel. However, the counsel must remember that the negotiation room is not a courtroom and thus prevent the meeting from turning into a legal battle.
Preparing your opening statement – Once the negotiation starts, each participant will begin with their opening statement. The length of this statement will vary depending on factors such as the total time of the negotiation. Generally, it is around 4-5 minutes.
Components of the opening statement
- The participants will first exchange pleasantries and introduce themselves i.e. their names, their roles (client/counsel). For instance, Good afternoon, I am Mr. X, and I am the CEO of ABC company.
- The participants may then thank the other negotiating team for requesting or responding to the request of negotiation as opposed to choosing litigation to resolve the dispute.
- They may also underscore their intention of arriving at a solution that is mutually beneficial.
- For the main substance of the opening statements, the client focuses on talking about the facts of the dispute. The counsel highlights the most important interests of the client in the negotiation. For example, in an employment law dispute, one of the interests of the client may be ‘the ability to work in a fair environment.’
After the opening statements, the counsel for either side generally proposes an agenda for the negotiation meeting. The other party’s counsel may accept the agenda as it is or suggest modifications. Setting the agenda in the correct chronology is extremely important. For instance, in a negotiation to discuss payment of maintenance and child custody between a separated couple, it is important that child custody be discussed first, as it may affect the quantum of maintenance.
- Offers and counter-offers: The parties then proceed to communicate to each other their viewpoint on the first item on the agenda, and present offers and counteroffers. It is important to listen to the other party, and accommodate their thoughts to the extent possible. The aim is not to dominate the other party, but to arrive at a mutually beneficial solution.
- Questions: During the negotiation, the parties may also ask questions to each other. Asking questions with a view to understanding the confidential information of the other party can be useful. Understanding the reason behind a particular position or offer that the other party is making can help to arrive at a conclusion. It is beneficial to already prepare the questions you wish to ask.
- Agreement: It is not necessary that for a successful negotiation, the parties have to agree on all the items on the agenda. An agreement is highly unlikely to be reached in short periods of negotiation. Thus, the parties should not quickly agree on something only for the sake of agreeing. Keeping the interests of the client protected is of paramount importance. Thinking deeply about the problem and preparing some possible solutions beforehand is crucial. Try to keep both parties’ interests in mind and be creative with the solutions you offer.
In the last few minutes of the negotiation, each participant says a few concluding lines. The parties may thank each other for their time and cooperation. If the negotiation has resulted in a settlement, one of the parties may propose that they shall draft an agreement and share it with the other party for their approval and signature. If there was no settlement, the parties may acknowledge that although there is no agreement, the parties have come a long way in understanding each other, and can schedule further meetings to arrive at a conclusion.
Importance of practicing
It is important to practice with your teammate, to ensure that there is good coordination and understanding between each other. Getting friends to play the other team is ideal, however, you may also practice against each other to get the negotiation juices flowing. Some interesting negotiation problems may be found here:
- https://abaforlawstudents.com/events/law-student-competitions/practical-skills-competitions/negotiation-competition/recordings-and-problems/, and
Familiarising yourself with negotiation terminology
There are certain terms that are unique to a negotiation, which is useful for preparing, and may be used by the Judges in the post-negotiation analysis. Some competitions have a post-negotiation round which consists of interaction with the judges where they may ask questions etc.
Some common terms are:
- BATNA – This stands for Best Alternative to a Negotiated Agreement. To identify BATNA, one needs to ask, if the negotiation fails, what is the best option that would be available to the client?
- ZOPA – This stands for Zone of Possible Agreement. It is an estimate as to what both parties might agree upon. In other words, a settlement that is beneficial to both parties and both get their desired outcomes.
In addition to the actual negotiation, some competitions require that the parties also submit a negotiation plan, prior to the actual negotiation. It is essentially a document outlining the objectives and goals of the negotiation, interests of the client, the negotiation strategy, the BATNA, the WATNA, the points that are in favour of, and against the client, etc. The exact requirements of the plan may be specified in the rules of the competition concerned. A sample plan can be accessed here:
Negotiation is an aspect of everyday life. Negotiation competitions are certainly a very enriching experience that all law students must consider participating in. There are several videos of such competitions on YouTube, which offer insight into the format and are useful resources.
The author has relied upon her own experience in law school.
Students of LawSikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.