Resolving Development Disputes Through Negotiations
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If the parties cannot agree how to settle the case, either the judge or a jury will decide the dispute for you through a trial. A trial is a formal judicial proceeding allowing full examination and determination of all the issues between the parties with each side presenting its case to either a jury or a judge. The decision is made by applying the facts of the case to the applicable law. That verdict or decision can conclude the litigation process and be enforceable; however, if appropriate, the loser can appeal the decision to a higher court. Our Constitution gives us the right to a fair trial.
3 Negotiation Strategies for Conflict Resolution
If you want your day in court with a judge or jury of your peers deciding the outcome, then the pursuit of litigation and trial of the case is for you. You may be in a municipal court, state district court or a federal court depending on the type of dispute you have and where your attorney files your case or where you get sued. State court trial judges are elected on a nonpartisan ballot, though vacancies are filled through an appointment process from highly qualified applicants. The district courts also appoint special judges, who handle certain kinds of cases, such as small claims and divorces.
These judges are selected by the district judges from qualified applicants. Federal district judges are nominated by the president and confirmed by the U. Federal magistrates are selected by the federal district judges. In all courts, cases are randomly assigned to the various judges.
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You have no choice concerning which judge will hear your case. Juries are randomly selected from a jury wheel of licensed drivers within each state judicial district and, in the case of federal court juries, from a jury wheel of registered voters and drivers license holders. If you cannot settle your differences through negotiation, mediation, arbitration or some other means, then you should pursue litigation through the courts with your lawyer. The method you use to resolve your dispute will depend upon your personal needs and the nature of your particular dispute.
You may want to consult with an attorney to help diagnose which process best serves your particular situation. There will always be times when a courtroom trial is the best option. Often, however, you are better served by one of the other alternative dispute resolution processes described in this brochure. With a better understanding of the considerations that can help you choose the most appropriate method, your conflicts can be more successfully managed and your disputes more satisfactorily resolved.
Legal Resources. Methods for Resolving Conflicts and Disputes. What Are Your Options We are all familiar with the most traditional dispute-resolution process of our civil justice system: litigation and trial with a judge or jury deciding who is right or wrong - where someone wins and someone loses. Characteristics of Litigation: Involuntary - a defendant must participate no choice Formal and structured rules of evidence and procedure Each party has the opportunity to present its evidence and argument and cross-examine the other side - there are procedural safeguards Public - court proceedings and records are open The decision is based on the law The decision can be final and binding Right of appeal exists Losing party may pay costs Other Dispute Resolution Procedures and Where You May Find Them: If you have a problem with a new car, you may find automobile arbitration through the Better Business Bureau to be a solution for you.
The manufacturer of your car may also have a process of resolving disputes. If you are involved in agriculture and have a farmer-creditor controversy, the Agricultural Mediation Program may be helpful to you.
Four conflict negotiation strategies for bridging the divide at the negotiation table
Victim-offender mediation which can result in restitution to the victim is available through the Oklahoma Department of Corrections. Other state and federal agencies sometimes offer settlement options in addition to their regular administrative procedures. If you do go to court, in addition to court-sponsored mediation or other ADR programs, you may find more procedures that encourage settlement or can resolve the dispute.
Your attorney can tell you about the processes available in the court in which your case is pending. Appellate courts, such as our state Supreme Court and the federal Tenth Circuit Court of Appeals, have settlement conference opportunities. Early Settlement mediation is often available here to offer settlement assistance first so you may not need to go before the judge.
Managing meetings and reaching consensus within any kind of organization or group can often be achieved through the assistance of a trained facilitator. Facilitators are available through various nonprofit support centers and service leagues or other community organizations.
Communication and conflict resolution skills classes may be available in your community by contacting the Law-related Education Department at the Oklahoma Bar Association thanks to a partnership with Leadership Oklahoma.
Selecting the Appropriate Method The method you use to resolve your dispute will depend upon your personal needs and the nature of your particular dispute. Considerations: Private and confidential or in a public court setting Informal setting and a more flexible process or one that is more formal and has specific rules to follow Personal control or decision made by a judge or arbitrator Time Costs Maintaining relationships Dispute decided on questions of law, resolved with business principles or a solution found through other fair, yet practical, means Binding and easily enforceable There will always be times when a courtroom trial is the best option.
Beyond this general statement, the functions to be performed by a negotiator will vary, depending on the mandate conferred on her or him by the party. In the most elementary form of negotiation, two or more parties work to achieve an agreement between themselves. However, the parties can delegate representatives to act on their behalf. These representatives include the following:.
The role of Justice counsel in a negotiation will vary with the circumstances and the mandate of the negotiating team. The extent to which Justice counsel will participate in the negotiations will depend on a variety of factors, including whether or not legal issues or issues of mixed fact and law are at stake as well as whether the client department needs or simply wants Justice counsel to participate actively in the negotiation.
For example, counsel with Legal Services Units work with their clients and on their behalf and help represent their views in a variety of situations, e. In some cases, Justice counsel will have carriage of files such as ongoing litigation and may be directly involved in negotiations, e. When negotiating on behalf of the client, counsel must ensure that there is no divergence between his or her negotiating stance and the mandate of the client. This is best done through following the client's instructions and providing frequent updates to the client.
At other times, client departments may ask the Justice counsel to participate as a member of the negotiating team. Should the client be present at the negotiations, counsel must determine in advance whether the client will actually participate in the negotiations. It is crucial for the success of the negotiations that no divergences, real or apparent, emerge between the positions advanced by Justice counsel and those proposed by the client.
To avoid any such disclosures, counsel and the client should clarify their respective mandates and formulate a common negotiating strategy. The choice of negotiating style will also be an important consideration, as a competitive negotiator will view the bargaining exclusively in terms of advancing his or her interests and will conduct the negotiations accordingly. The cooperative negotiator, however, will view the issues in a fundamentally different light and will attempt to seek common ground with his or her counterpart. While the role of counsel will depend on the circumstances surrounding the negotiations, she or he is always bound by the principles of professional ethics.
For example, the Code of Professional Conduct of the Canadian Bar Association states that when acting as an advocate, the lawyer must treat the tribunal with courtesy and respect and must represent the client resolutely, honourably and within the limits of the law. Although no two negotiations are identical, counsel must apply these principles of professional responsibility in each situation Footnote 9.
China willing to resolve disputes with US via 'calm' negotiations: Vice-Premier - syvufile.tk
Counsel for the Department of Justice are bound as well by the provisions of the Department of Justice Act , and relevant directives and policies which outline the appropriate role for Justice counsel. Of note is the Treasury Board Contracting Policy , which specifies negotiations as one means of resolving contractual disputes. Section Efforts should be made to resolve disputes as they arise, first by negotiating with the contractor.
This can be through discussion between representatives of the contractor and the contracting authority or by a more formal review established by the department or agency. Contracting authorities should develop systems that ensure:. Counsel should also be aware of all other legislative and government policy requirements including, for example, the Access to Information Act , the Privacy Act and the Official Languages Act. Underlying any successful relationship is the principle of mutual respect. Such differences will influence the perceptions and assumptions of individuals and how they bargain Footnote Differences in gender may also play a role in the negotiating process, whether the parties are of the same or different cultural backgrounds Footnote Reliance on stereotypes, whether they be based on gender, cultural, physical or racial differences or physical disability, will cause and reinforce misunderstandings between the parties.
The ability to deal with others who are not of the same gender or cultural origin or who differ in some way from one's self varies with each individual and the degree to which she or he has been exposed to and is willing to accept diversity. Whatever one's background, clearly demonstrating respect for and an open-minded attitude towards others is always an appropriate course of action.
When there are cultural or other differences among parties to a negotiation, it is important to be aware of and sensitive to these differences. In such a situation, it is essential to communicate clearly and effectively with the other party or parties in a negotiation. Doing so will enhance the relationship between the parties as well as minimize the chances of a misinterpretation of the underlying message Footnote At any point during negotiations, one party may decide to use a variety of tactics in order to obtain an advantage over another party.
This behaviour can range from pressure tactics attempting to force a party to accept specific terms , intimidation implicit or explicit , deliberate ambiguity regarding the scope of the negotiating mandate to blatantly unethical behaviour providing misleading or false information, lies, etc.
Footnote Advance preparation is essential in order to respond effectively to these tactics, whenever they may arise.
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In devising strategies to counter such behaviour, each situation must be viewed as unique. Previous experience of others can provide useful guidelines in formulating a suitable response Footnote It is helpful to list these factors in order of priority. Through this clarification it is often possible to identify or establish some common ground.
Clarification is an essential part of the negotiation process, without it misunderstandings are likely to occur which may cause problems and barriers to reaching a beneficial outcome. This stage focuses on what is termed a 'win-win' outcome where both sides feel they have gained something positive through the process of negotiation and both sides feel their point of view has been taken into consideration. A win-win outcome is usually the best result. Although this may not always be possible, through negotiation, it should be the ultimate goal.
Suggestions of alternative strategies and compromises need to be considered at this point. Compromises are often positive alternatives which can often achieve greater benefit for all concerned compared to holding to the original positions. It is essential to for everybody involved to keep an open mind in order to achieve an acceptable solution. Any agreement needs to be made perfectly clear so that both sides know what has been decided.
From the agreement, a course of action has to be implemented to carry through the decision. See our pages: Strategic Thinking and Action Planning for more information. If the process of negotiation breaks down and agreement cannot be reached, then re-scheduling a further meeting is called for. This avoids all parties becoming embroiled in heated discussion or argument, which not only wastes time but can also damage future relationships. At the subsequent meeting, the stages of negotiation should be repeated. Any new ideas or interests should be taken into account and the situation looked at afresh.
See our page on Mediation Skills for more information. There are times when there is a need to negotiate more informally. At such times, when a difference of opinion arises, it might not be possible or appropriate to go through the stages set out above in a formal manner. Nevertheless, remembering the key points in the stages of formal negotiation may be very helpful in a variety of informal situations. In any negotiation, the following three elements are important and likely to affect the ultimate outcome of the negotiation:. All negotiation is strongly influenced by underlying attitudes to the process itself, for example attitudes to the issues and personalities involved in the particular case or attitudes linked to personal needs for recognition.
The more knowledge you possess of the issues in question, the greater your participation in the process of negotiation. In other words, good preparation is essential.