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Jun 12, 2017

By Deepak Malhotra

Whenever a dispute flares up, the parties involved must ask themselves which course of action will yield the best outcome. Should they negotiate, litigate, or simply walk away and accept the status quo?

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In fact, litigation and negotiation are not mutually exclusive. Both can—and often should—be pursued simultaneously.

Speaking with regard to the Middle East conflict (and paraphrasing David Ben-Gurion’s famous quotation), former Israeli Prime Minister Yitzhak Rabin often remarked that he would fight terror as if there were no peace process and make peace as if there were no terror. In other words, he would give up neither negotiation nor the use of military force.

Although clearly controversial in the realm of global politics, Rabin’s two-pronged strategy illustrates the fact that dispute resolution sometimes requires both a power-based and an interest-based approach, such as the simultaneous pursuit of litigation (the use of legal power) and negotiation (attempts to reconcile each party’s interests).

Here are some strategies that can help disputants keep interest-based negotiation alive even after legal action has been initiated:

Keep communication lines open. If you and the other party have a preexisting relationship (as business partners, family members, or friends), it’s important to communicate regularly regarding alternative ways to resolve your dispute. As legal bills accumulate, disputants often begin to soften their positions, and new openings for agreement can emerge. In addition, if the dispute was due in part to miscommunication or misinformation, keep working to clarify your perspective and understand the other side’s point of view. Just because legal action was pursued prematurely doesn’t mean it must be seen through to the bitter end. While it’s not easy to negotiate in the midst of legal maneuvers, you should at least leave open the possibility.

  1. Ask other parties to mediate. When communication with the opposing side is strained or difficult, consider bringing in a mutually trusted third party to serve as a go-between. Mediators can facilitate information exchange, vouch for good-faith efforts, and propose ways to resolve the dispute. Third parties can also help provide a reality check by reminding disputants of the costs and likely repercussions of litigation.
  2. Don’t lose sight of your underlying interests. Far too many people view negotiation as a battle in which the goal is to win, a misperception that’s accentuated by litigation. When you think you’re in the right, both morally and legally, the desire to win can distract you from pursuing your true underlying interests.
  3. Revisit the following questions often during your dispute: What are my true underlying interests? How can I best achieve them? How much am I willing to pay just to be able to say that I won? It’s important to recognize that when you lose sight of your interests, you lose the possibility of negotiation.
  4. Understand your lawyer’s role and perspective. Your lawyer’s job is to educate you and advocate for you. He or she is not—and should not be—the primary decision maker on your behalf. As the disputant, you must understand not only your rights but also your options—especially your non-litigation options. The best lawyers will help you comprehend all of those alternatives. But the fact remains that lawyers make their living by giving legal advice and pursuing litigation. As a result, your incentives will never be completely aligned with those of your lawyer.

Furthermore, your lawyer’s expertise is probably restricted to the domain of law. It’s incumbent on the disputants to educate themselves about other ways of resolving their differences, such as through mediation or negotiation. One way to do this is by getting second opinions from legal experts who have no financial stake in the case.

The decision to litigate should not be taken lightly, and the power of negotiation should not be underestimated. You should pursue litigation only as a last resort, staying focused on the pursuit of negotiation, underlying interests, and the goal of preserving and strengthening relationships.

Source: Special Report on Negotiation (Harvard Law School)

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ADR Daily is a specialized news portal with a focus on providing authentic news, information and research analysis on Appropriate Dispute Resolution (ADR), Human Resource Management (HRM) and Industrial Relations Management (IRM) in Ghana and beyond. This platform serves as an information resource base for the progress of the ADR, HRM and IRM industries, and seeks to promote professionalism in ADR practice by supporting a network of ADR professionals within and across nations and continents. ADR Daily keenly encourages the mass adoption of ADR mechanisms, particularly negotiation, mediation and arbitration for the resolution of disputes in all spheres, through the publication of industry news and information, as well as by deploying innovative awareness creation engagements.