Negotiation

Negotiation can take many forms and can be used in varying processes.

Negotiation can take place in the following situations:

  • Between the parties themselves around the “kitchen table”.  The parties can openly discuss and resolve issues in relation to their children, financial issues, property settlements and so forth by discussing these matters together.  It is recommended that prior to entering into such negotiations the parties obtain legal advice and become empowered with knowledge to assist them in reaching a desired outcome.
  • Negotiations take place in collaborative practice meetings with the assistance of two experienced and trained collaborative practitioners.  (Refer to the article on collaboration in the website or in our booklet the A to Z of Family Law).
  • Mediation – negotiation takes place between the parties and/or legal representatives before a mediator to endeavour to reach a resolution on varying issues.  (Again refer to the article on mediation on the website or in our booklet the A to Z of the Family Law).
  • Negotiation can take place between lawyers in litigation matters that are proceeding through the Family Court.  These negotiations take the form of letter writing and direct negotiations before a Court hearing to try and resolve the matters without resorting to a decision being made by a Judge.

The persuasive and competent negotiators exhibit the following features:[1]

  • A sustained reputation for the features which follow!
  • Attentive listening and summarising skills
  • Detailed preparation and intra-team training
  • Gracious hosts
  • Articulated awareness and flexibility about procedural options during negotiation
  • Self-deprecating humour (eg “I became a lawyer because I cannot add”,  “I forgot to take my pills again this morning”)
  • A balance of focus on big goals (the forest) and fine detail (the trees)
  • Stunning memories for detail and instant ability to produce copies of key documents
  • Polite creation of doubt by words, diagrams or raised eyebrows
  • Patience and persistence
  • Well timed and worded questions
  • A range of pity and memorable analogies, stories and expression
  • Scrupulous “honesty” (though not necessarily “full” disclosure)
  • Articulated awareness of the fallibility of human decision-making (“Am I missing something…”?)
  • Repetitive and frank re-evaluation of fallback options

[1]Persuasion In Negotiation And Mediation, John Wade Professor, Faculty of Law Bond University, September paper 2007.

negotiation

The parties involved in negotiation have at the basis of their negotiations a preferred settlement option.  Each party works towards obtaining a resolution having that preferred settlement option as their desired outcome.

Negotiations by way of correspondence can be lengthy and costly.  The parties each have a preferred settlement option and it is difficult to reach a resolution by negotiations taking place by this process.

It is preferable for the parties, if they do have legal representation, to arrange, if possible, a ‘without prejudice‘ negotiation to take place at the office of a solicitor of one of the parties.  By that means the reasoning behind each party’s desired outcome can be fully investigated and discussed.  Any information provided in these ‘without prejudice’ negotiations cannot be used in any other venue or Court.  The negotiations must be based and clearly understood to be on a ‘without prejudice’ basis.

It is a preferred option if negotiations take place by correspondence, to arrange a ‘without prejudice’ conference very early in the piece before the parties become entrenched.  ‘Without prejudice’ negotiations with the assistance of lawyers is the preferred method of negotiation if negotiation is the process that the parties desire.  ‘Without prejudice’ negotiations at a solicitor’s office is rarely used but is a method to try and resolve issues if the parties have limited financial means.  It is preferable for such negotiations to take place in the framework of collaborative practice meetings.