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Chapter

Cover A Practical Approach to Alternative Dispute Resolution

10. Overview of Negotiation and Mediation  

This chapter provides an overview of negotiation and mediation, both of which can take place at any stage in a case, whether or not proceedings have been issued. Neither has formal procedural rules save for those agreed by the parties. Both can only take place with the agreement of the parties, and both will only result in a settlement with the agreement of the clients. In very broad terms, it might be said that mediation is a facilitated and more structured form of negotiation. Despite the broad similarities, the role of a lawyer in these two processes can be very different. Negotiation is normally carried out by the lawyers acting for each party, often without clients being present. In mediation, the mediator may deal only with the parties, especially in a small case, or both parties and lawyers may attend with the lawyer providing advice to the client at all stages.

Chapter

Cover Legal Skills

20. Negotiation skills  

This chapter introduces the skills needed to prepare for and conduct an effective negotiation, including the research process and different negotiation styles. It also considers the problems that can arise during negotiation and outlines a range of strategies that can be used to overcome them. In essence, it is a step-by-step introduction for those with no previous negotiation experience as well as a source of advice for the more experienced negotiator. A range of examples is used to demonstrate the skills involved in negotiation.

Chapter

Cover Legal Skills

20. Negotiation skills  

This chapter provides an introduction to the skills needed to prepare for and conduct an effective negotiation, including the research process and different negotiation styles. It also considers the problems that can arise during negotiation and outlines a range of strategies that can be used to overcome them. In essence, it is a step-by-step introduction for those with no previous negotiation experience as well as a source of advice for the more experienced negotiator. A range of examples is used to demonstrate the skills involved in negotiation.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

11. Styles, Strategies, and Tactics in Negotiation  

This chapter describes the styles, strategies, and tactics that may be used in negotiation. A proper understanding and use of style, strategy, and tactics is a very important part of securing the best possible outcome for a client. As such, specific strategy and tactics should be planned in advance for each case so that they can be implemented to best effect. The main strategies are co-operative, competitive, collaborative, and pragmatic, each of which has strengths and weaknesses. A wide range of tactics can also be used, relating to information, offers, demands, structure, and presentation. Tactics can and should be used to support any strategy. In addition to using strategy and tactics effectively, lawyers should use their understanding to identify and address the strategy and tactics used by their opponent.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

12. Preparing for Negotiation  

This chapter details the process of preparing for negotiation. The purpose of a negotiation is to get the best possible outcome for the client, so planning should be based on a careful identification and prioritization of the client's objectives. Context is very important and relatest o the implications of the stage the case has reached. The lawyer should identify the issues that need to be negotiated, and analyse the facts, evidence, and law to put together persuasive arguments on each issue. They should evaluate their case carefully to plan potential concessions, demands, and offers, so that they are clear what they want to get on each issue, and what the possible fallback positions are. The chapter also considers the importance of planning a best alternative to a negotiated agreement (BATNA) and worst alternative to a negotiated agreement (WATNA) to provide a context for assessing offers and the possible overall outcome of the negotiation.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

17. Reaching a Settlement  

This chapter focuses on key aspects of the final stage of the negotiation or mediation process: reaching a settlement. An agreement reached through mediation or negotiation is essentially a contract. As such, contractual principles will apply, and oral or email exchanges may be binding. To avoid problems, it is important to be clear about process. It is also necessary to check the coverage and detail of a potential settlement fully. A potential agreement may be undermined by a failure to agree detail as the settlement process goes forward, or due to tactics in the final stages. Ultimately, it is very important to finalize the terms of an agreement at the end of the settlement process, perhaps building in terms to assist enforcement or implementation.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

22. Early Neutral Evaluation  

This chapter describes early neutral evaluation (ENE), which is a non-binding assessment and evaluation of the facts, evidence, and/or the legal merits of an issue in the case or of the case as a whole. It is usually undertaken by the parties jointly, although in some cases it can be undertaken at the request of one party only in relation to their own case. The parties will usually appoint a neutral third party to evaluate the facts, evidence, and law in relation to the issue or case and provide an opinion on the merits. This differs from mediation, which is essentially a facilitative process. ENE is an advisory and evaluative process. It can take place within the court system, in which case the evaluation is usually carried out by a judge. Ultimately, ENE assists the parties to negotiate a settlement by direct negotiations or in mediation.

Chapter

Cover Legal Ethics

11. Alternative dispute resolution  

This chapter examines the ethical issues raised by alternative dispute resolution (ADR). It first looks at the process of negotiation, which is the way in which lawyers resolve most disputes. It then considers other forms of ADR, including mediation and, briefly, arbitration. The chapter highlights the advantages and disadvantages of these processes. There are particular concerns where one party is in a stronger bargaining position, for example in a family case which has involved domestic abuse. There is also much debate over the role a mediator should play, andin particular over whether a mediator should take a neutral role or persuade the parties to reach what they regard as a fair settlement. It also considers what attracts clients to use these forms of dispute resolution.

Chapter

Cover Legal Ethics

10. Alternative dispute resolution  

This chapter examines the ethical issues raised by alternative dispute resolution (ADR). It first looks at the process of negotiation, which is the way in which lawyers resolve most disputes. It then considers other forms of ADR, including mediation and, briefly, arbitration. The chapter highlights the advantages and disadvantages of these processes. It also considers what attracts clients to use these forms of dispute resolution.

Chapter

Cover Legal Systems & Skills

12. Negotiation and mediation  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter provides guidance as to how to conduct a negotiation and a mediation, and explains the difference between the two. It covers how, why, and when a law student might require these skills, and how to further develop the skills for professional practice. Advice is given about how to prepare effectively for a negotiation by drafting a negotiation plan. There is consideration of the different approaches to conflict and uncertainty and how they impact negotiation style. The BATNA is defined and discussed. For mediation, a flowchart is provided to guide students through the mediation process. The growing trend towards online dispute resolution is covered.

Chapter

Cover Legal Systems & Skills

12. Negotiation and mediation  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter provides guidance as to how to conduct a negotiation and a mediation, and explains the difference between the two. It explains how, why, and when a law student might require these skills, and how to further develop the skills for professional practice. Advice is given about how to prepare a negotiation plan.

Chapter

Cover International Law Concentrate

10. Peaceful settlement of disputes  

This chapter examines the means and methods relating to the peaceful settlement of international disputes. The UN Charter obliges States to resolve their disputes peacefully and suggests certain means for such settlement: on the one hand, diplomatic means, like negotiation, mediation, conciliation, or the ‘good offices’ of the UN Secretary General and, on the other, legal methods, such as arbitration and recourse to the International Court of Justice (ICJ), which are binding. The ICJ exercises its jurisdiction over contentious cases only upon the consent of the parties to the dispute, which may be expressed through various forms (eg compromis or optional clause declaration). The ICJ may also render advisory opinions to questions of international law posed by the UN General Assembly, the Security Council, or other competent organs and organizations. The chapter also explains dispute settlement in the context of international investor–State arbitration and in the World Trade Organization.

Book

Cover A Practical Approach to Alternative Dispute Resolution

Susan Blake, Julie Browne, and Stuart Sime

A Practical Approach to Alternative Dispute Resolution provides a commentary on all of the major areas of out-of-court dispute resolution. The text is made up of six parts. Part I looks at the history and range of alternative dispute resolution (ADR) methods. The second part moves on to the interplay between ADR, civil procedural rules (CPR), and litigation. The third part focuses on negotiation and mediation. It looks at styles, strategies, and tactics; preparation for mediation; and the mediation process as a whole. It also touches on international mediation. Part IV is about evaluation, conciliation, and Ombudsmen. The fifth part examines recording settlement. The sixth and final part is about adjudicative ADR. It contains chapters on expert or neutral determination, construction industry adjudication, arbitration, arbitration tribunals, commercial arbitration, international arbitration, awards and orders, High Court jurisdiction in arbitration claims, and, finally, enforcement of settlement and awards.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

13. The Negotiation Process  

This chapter explores the negotiation process. Good communication skills are very important for effective negotiation. Each negotiator should make clear any limits on authority, and whether any settlement will be subject to client approval. Indeed, agenda setting and opening are important in gaining control of a negotiation. It is normal to move through each issue reasonably systematically, making best use of information, analysis, and presentation. It is also important to deal with concessions, offers, and demands effectively to get the best outcome for the client. The negotiator should be able to identify the problems that can arise in a negotiation process and the techniques that may be used to overcome them. If a negotiation is successful, an oral contract is reached; the terms should then be clarified and recorded. Even if the negotiation is not successful, progress may be made with regard to the case.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

14. Mediation: General Principles  

This chapter studies the general principles of mediation, which is a form of neutrally assisted negotiation. The negotiations take place with the help of a neutral third party, within a structured process, in a formal setting, during a defined period of time, all of which help to create an impetus for settlement. The mediator then works to facilitate a settlement between the parties. There is no determination of liability in mediation, and any settlement that is reached is not necessarily based on the underlying legal rights or obligations of the parties. Instead, the parties, with the assistance of the mediator, can reach a solution which is tailored to their real needs and interests. The chapter identifies three styles of mediation: facilitative mediation, evaluative mediation, and transformative mediation. Ultimately, the European Code of Conduct for Mediators, which has been adopted by the Civil Mediation Council (CMC), provides a useful benchmark for determining the minimum rules of professional conduct that should be expected from a mediator.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

2. Overview of ADR Options  

This chapter presents an overview of the alternative dispute resolution (ADR) options available to parties to a dispute in England and Wales, outlining the most commonly used processes. A lawyer should be familiar with the range of ADR options and be able to advise a client on appropriate use of ADR. This includes familiarity with each process, when it should be used, who might attend, and key strengths and weaknesses. ADR options can be broadly divided into processes that are adjudicative (where a third party takes a decision) and those which are non-adjudicative (where the parties approve any proposed settlement). The main non-adjudicative options are negotiation and mediation. The main difference between the two is that a negotiation is normally conducted by lawyers, whereas a mediation includes a neutral third party. Meanwhile, the main adjudicative options are arbitration and expert determination.

Chapter

Cover The Criminal Process

10. Plea  

This chapter examines the law and practice on plea negotiation. After looking at the percentage of defendants who plead guilty, it then considers some of the principal reasons for changes of plea, looking at charge bargains (where the defendant agrees to plead guilty in exchange for the prosecution reducing the level of the charge or the number of charges); at fact bargains (where the defendant agrees to plead guilty only on the basis that the prosecution will put forward a particular version of the facts); and at plea negotiation (where the change of plea is motivated by considerations of sentence). The tendencies evident in the English system are then evaluated in the light of defendants’ rights and the supposed advantages to the public.

Chapter

Cover The Successful Law Student: An Insider's Guide to Studying Law

12. Expanding Legal Skills— Mooting, Negotiation, and More  

This chapter considers further activities and opportunities for the student to put their knowledge of law and their legal skills into practice, and further develop skills that are key to legal practice. This is important for legal careers but also in developing skills to enhance employability more generally. This chapter explores important legal skills-related extracurricular activities that are commonly available within the law programme or on an extracurricular basis, particularly mooting, negotiation, client interviewing, and debating, and the value of these activities in developing legal and general skills including analysis, critical thinking, professionalism, and teamwork.

Chapter

Cover Brownlie's Principles of Public International Law

31. The claims process  

This chapter considers preliminary issues, involving both jurisdiction and admissibility, before international courts and tribunals. It discusses prior negotiations, the requirement of a dispute, grounds of inadmissibility, diplomatic protection, and mixed claims.

Chapter

Cover JC Smith's The Law of Contract

5. Contract as an agreement  

This chapter discusses the key elements of a contract as an agreement. No contract exists unless the parties have agreed on everything which they consider requires agreement. However, a failure explicitly to set out all the terms of the agreement is not necessarily fatal to there being a contract, since a court might be able to imply terms to fill in any gaps. But a court will be unable to do this if it would contradict the intentions of the parties. Parties may agree not to negotiate with anyone else for a specified period of time. But an agreement to negotiate with one another is not binding because it is insufficiently certain. An agreement may be made ‘subject’ to something or other. If so, the contract is not binding until that particular event occurs.