The Negotiator is a neutral, impartial third party. It is crucial to the process that the disputants accept the integrity of the negotiator and his/her total independence of mind unquestioningly. It is, however, always essential that the negotiator make full disclosure of any circumstance where his/her independence is not assured due to a conflict of interest that might give rise to justifiable concern by any party. At the slightest indication of such concern, whether or not the negotiator considers it justifiable, he / she will decline or relinquish the appointment. Some negotiators hold legal qualifications but this is not an essential prerequisite. Nor is it necessary that the negotiator be highly skilled in the subject matter of the dispute. What is necessary is that the negotiator has a thorough knowledge of the various dispute resolution processes and be well versed in the techniques by which the disputants may be assisted towards achieving a successful resolution of their dispute. The qualities of a good negotiator are personal skills rather than technical or legal expertise or experience. The negotiator is best described as an architect of the solution process in that he/she will develop and recommend to the parties the precise way in which the discussions should go forward. The negotiator’s object throughout is to assist the parties to gather together the building blocks of information and understanding out of which to construct their settlement. Quite frequently a successful negotiated solution will involve a rearrangement of the commercial relationship between the parties and this again is an area where a negotiator drawing on the knowledge gained in the course of private discussions with each of the parties, can provide significant assistance. With this in mind it is helpful if the negotiator is well versed in the ordinary course of business or commerce as well as having an understanding and working knowledge of the processes of litigation and arbitration. A negotiator, through training and experience, approaches different parties in different ways. Because a negotiator will not be deciding the case, both the negotiator and the
parties are free to discuss without fear of any consequence the ramifications of settling a particular dispute as opposed to litigating it. This is one of the reasons that a negotiator must preserve and maintain the confidentiality of all proceedings. The role of legal advisers Legal advisers may be present at a negotiation however it is reiterated to all that the process is an informal meeting between the disputants themselves in a non-legal context. It is essentially for the parties to be able to engage in a free, and totally protected, person to person exchange of views about the dispute and ways in which it might be able to be settled. A legal adviser who does not understand and observe this is a direct impediment to the process. The role of legal advisers is essentially threefold:
- to advise and assist their clients in the course of the dispute resolution.
- to discuss with the negotiator, with each other and with their respective clients, such legal, procedural or practical matters as the negotiator might suggest or their clients might wish.
- to prepare the terms of settlement or heads of agreement recording the agreement reached at the end of the resolution for signature by the parties prior to departure at the end of the dispute resolution process.
The role of party representatives It is essential that each party be present in person or have present at the resolution process a representative with full authority to negotiate and settle the dispute. The representative should not be subjected to any limitation or restriction of authority to settle. The chief executive, an executive director or other very senior person who has been vested with total authority in the dispute ordinarily represents large corporations in major disputes. When it is recognised that an intensive one or two day resolution process has a 90% or better prospect of settling a dispute that may occupy weeks or months of contested hearing, it is generally accepted that the time of such seniority of representation is amply justified. At the heart of the process is the opportunity for each party to make a dispassionate and objective reappraisal of the whole situation in the free and totally protected discussions that take place within the process. These discussions enable each party to make a more fully informed and reliable assessment of its own position and interests, of the other party’s position and interests and of likely future developments and options. The reliability and validity of such assessment will develop and grow throughout the course of the discussions. A constraint or pre-determined limit on the authority of a representative denies that party the full benefit of on-the-spot informed reappraisal and inhibits the prospect of a successful outcome. The few dispute solutions that fail to succeed more often than not are circumstances in which one or more of the parties has, through a lack of understanding, viewed the procedure as simply involving settlement discussions or pre-trial conferences such as some court systems require and has sent along a representative with limited authority in the contemplation of seeing whether the other party can be talked down (or up) to not more (or less) than some arbitrarily pre-determined figure.