Negotiation

Why negotiate?

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 useful to help decide what your best options are.

Some of the suggestions below might be useful in deciding what steps to take in your case. What you decide to do might vary, depending on what your dispute is about and the facts of your situation.

• 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 back-up?
  • 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?
• Try to work out what the other party you are in dispute with might want and why. You may then be able respond to their position or offers in a more effective way.   
• Think about the timing and method of negotiations:
  • Decide whether to negotiate in person, by letter, phone or email.
  • Set timelines for negotiations and responses to offers.
• Get legal advice if you are not sure of the legal basis for your position, or whether you should accept an offer.

Hints for negotiation

Keep the person separate from the problem

You may not like the other person, their attitude, or what they want. You are unlikely to resolve the problem if you are rude or get angry with them. Focus on finding a solution, rather than trying to 'win' or beat the other person.

Offer benefits for accepting your offer

This can involve trying to persuade the other party to accept your offer.  

For example, if you owe money, would they accept a lower amount if you paid it all at once, rather than paying the full debt over time or instead of going to court?

Make sure you can deliver what you offer or agree to

Keep a record of your negotiations

For example, copies of letters and emails; notes of meetings and offers made; the names of people who are present during your negotiations.

Usually it is preferable to make offers 'without prejudice'

This means that what you say in the offer (or the fact that you even made the offer) can’t be referred to in court if negotiations break down and the matter goes to court. ‘Without prejudice’ is a way of saying that the negotiations are private, to allow the parties to explore the possibilities of settlement of the dispute, without having to worry that what is said or discussed will be used against them later on in court.

Make it clear that the settlement is a 'full and final' outcome

If you offer less than what the other person wants, make sure it is clear that your offer is in 'full and final satisfaction' of the dispute. If the offer is accepted, make a written record of the settlement that clearly says the settlement is a full and final outcome to resolve the dispute. 

This will help stop the other person trying to make you pay extra money or do something else later on.   

Reviewed: 21 March 2024