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Negotiation And Out-Of-Court Settlement

Foluke Akinmoladun

iPleaders Blog

  Sometimes, parties to a suit pending in court may realize the advantages they will enjoy if they pursue an amicable settlement of their dispute without recourse to the court system.
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Such parties are allowed, despite the pendency of their suit in court, to pursue the end of amicable settlement and bring the result of such settlement to the court to be entered as the court’s judgement, and the settlement will have the same binding force as if it was the decision of the court. The process adopted for such an amicable settlement is referred to as negotiation, while the outcome of such negotiation is an out-of-court settlement. Depending on the nature of the dispute between the parties, the personal skills and knowledge of the parties involved, and other factors necessary for formulating a suitable course for the negotiation to take, the procedure for negotiation necessarily varies.

Procedure For Negotiation

  1. Stage I: this stage can be called the preliminary stage, and it involves the definition of the problem, clarification of objectives, finding out exactly what the other side wants, that is, trying to access the underlying needs or preferences of the other party to enable one develop a strategy to meet them.
  2. Stage II: it is necessary at this stage to have a brief working knowledge of the habits, antecedents and inclinations of the other party to the negotiation. This information will help to tailor one’s strategy to meet one’s needs.
  3. Stage III: Agreement stage- this is where compromises are made and a mutually satisfactory conclusion is reached.

Types Of Negotiation

  1. Positional Negotiation: this seeks to achieve a personal interest or purpose.
  2. Principled Negotiation: seeks to find a win-win situation for all those parties involved.
  3. Pragmatic Negotiation: this is a mix of positional and principled approaches.

Theories Of Negotiation

The two main theories of negotiation are the problem-solving approach and the competitive theory. The problem-solving approach, as the name implies, seeks to find a solution that is beneficial to all the parties involved, while the competitive theory involves each party trying to get the better deal for him/herself. In competitive situations, there are limited resources, so there is usually a winner or a loser, and as such, the parties are better served by pursuing their individual interests at the expense of the other party’s interests.
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Advantages Of Opting For An Out-Of-Court Settlement

  1. Creating a win-win situation and fostered relationships, as against litigation, often leads to winners and losers and strained relationships.
  2. Providing a cheaper means of resolving disputes than litigation.
  3. It is faster than litigation, as the parties, who are in charge of the process are usually committed to resolving the dispute as quickly as possible.

The Lagos Multi-Door Court House System

A multi-door courthouse is a one-stop-shop for justice, where disputants can choose from a range of dispute resolution mechanisms, including litigation. The system involves a preliminary administrative procedure where the disputants are directed to adopt the dispute resolution mechanism best suited to their case. This initial process is called screening. The multi-door courthouse does not dispense with the time-tested principles of law, but rather streamlines the procedure without defeating the purpose of justice. The first multi-door courthouse in Nigeria was the Lagos multi-door courthouse, which was inaugurated in 2001.

Access To The Lagos Multi-Door Courthouse

There are four major avenues by which matters are brought to the Lagos Multi-door Courthouse. They are:
  1. Referral by the court/presiding judge.
  2. Walk-in cases by the parties or their attorney.
  3. Cases brought in for administration in accordance with an ADR or arbitration clause contained in an agreement.
  4. Direct intervention by the LMDC when the Director or the ADR judge invites disputing parties to the ADR centre.
Disputing parties are also presented options, processes or doors to be utilized in resolving a dispute. At the moment, there are basically three doors that are used in resolving disputes at the Lagos Multi-door Courthouse (LMDC): Mediation, Arbitration and Neutral evaluation. There is a panel of Neutrals, it is a body comprised of lawyers, judges and other professionals who are specialists in ADR processes. The Court administrators provide disputants with a list of members of the panel for them to select their third party to guide their dispute resolution process. At the end of the proceedings, the parties enter into a settlement agreement. This agreement can be entered as a consent judgement before the court, which is one of the advantages of having an ADR mechanism within the court system. The multi-door courthouse system has been replicated in other parts of Nigeria, and apart from providing a comprehensive administrative dispute resolution facility within the space of the traditional judicial system.

Conclusion

Negotiation is one of the most effective ways to avoid conflicts and tensions. It helps to achieve goals without hurting anyone. Negotiation is essential in corporate, as well as, personal lives to ensure peace and happiness. Featured Image Source: iPleaders Blog
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