What is negotiation?
Negotiation is the process where you and the person you are in a dispute with each set out what you want and try to reach agreement. This can be done in writing or by talking to each other (provided there are no court orders preventing this). Sometimes negotiation can occur through your lawyer or another person or specialist service.
There are often many ways to resolve a dispute. Negotiation is one of them. It's usually better to sort out problems away from the court. Court can be costly, stressful, time consuming and may not lead to the outcome you want. Going to court should be a last resort.
Where do I begin?
In many cases legal advice may be needed to help decide what your best option is.
The steps you take can vary depending on what your dispute is about and the facts of your situation. Some of these hints might be useful in deciding what steps to take in your case:
- Develop a plan before beginning to negotiate so that you are clear on what you want to achieve.
- Prepare points in favour of what you want.
- Know what you want the outcome to be and when you want it:
- Can you compromise?
- Can you accept something less than your most preferred outcome as a fallback position?
- Do you have a bottom line or less preferred outcome that you could accept?
- Does it matter to you how long it takes to get to the outcome?
For example, if you are owed a debt, you need to consider if you will accept an offer of something less than the full amount sought to settle the claim. Getting less may be outweighed by the possible advantages. The advantages could include:
For example, with a car accident property damage claim, if there is no legal basis for arguing for the full amount and you refuse a lesser offer to settle and end up going to court, you may end up with less than the offer, or even nothing. At a hearing the magistrate may find both you (eg by driving too fast), and the other driver contributed to the accident and the damage to your car, and not award all of your claim.
Hints for negotiation
For example, you may not like the person you are in dispute with or their attitude towards you but it is unlikely to help with resolving the problem if you attack or get angry with the person.
For example, if you agree you owe a debt but cannot pay the full amount claimed now but could pay a lesser amount, you could offer the lesser amount as a way of settling the debt in full now rather than by paying by instalments over a longer period of time, or by going through a court process.
- Make sure you can deliver what you offer or agree to.
Keep a record of your negotiations eg copies of letters sent; notes of meetings and offers made; people who are present during your negotiations.
Usually it is preferable to make offers “without prejudice”. This means that it is intended the contents of the offer can’t be relied on in evidence and cannot be referred to in court if negotiations break down and settlement cannot be achieved. It is a way of referring to “off the record” communications between the parties to explore the possibilities of settlement of the dispute without having to go to court or sometimes within the court process.
If you make a part offer to settle your dispute make sure you offer it in “full and final satisfaction” and that there is a written record of this as part of the settlement so that if the other party accepts this offer they can’t come back at you later to say you owe the rest.
Where can I get help with negotiation?
For places you can get help from see Mediation and dispute resolution. If you are in dispute with an organisation it may have a formal dispute resolution process.
What if an agreement is reached?
You should get legal advice before accepting an offer and/or signing an agreement to settle your dispute.
If you reach an agreement always put your agreement in writing so there is a record if there is a dispute about what was agreed in the future. Sometimes there are formal requirements if your case is already at court, eg forms for consent orders in the Magistrates Court. Make sure if your case is settling on something less that the other party initially wanted that the agreement is in “full and final satisfaction”.
Where can I get more information?
Last reviewed: 28/01/2015