Introduction
Definition of Negotiation
Appealing to the judiciary system, presumably, is the primary method of resolving serious conflicts for which many opt. The most probable reason why people as well as businesses prefer litigation is the theoretical framework of law that it provides, adherence to which simplifies identifying the directions of decision-making. In addition, the presence of a neutral third party can reduce prejudice and balance the opinions of the sides, helping them to reach mutual understanding (Williams, 2021). Another noteworthy point is that litigation always has a result; in other words, appealing to a court makes never-ending disputes hardly possible. This is essential, considering that strained relations, especially in business, can waste resources and interfere with development.
Along with the above, the specialty of court cases is their openness, which can be a substantial advantage or a serious drawback, depending on circumstances. In one respect, close public attention can serve as a restraining force, specifically, help prevent abuse or misunderstanding of law, favoring justice. On the contrary, businesses may be unwilling to disclose the details of the cases in which they are involved because of reputational concerns (Williams, 2021). The need to protect sensitive data is another possible reason. The above disadvantages makes many firms search alternatives to litigation that enable reaching a consensus without attracting unwanted attention to the case.
Negotiation is a quite popular way to resolve disputes, both between individuals and between businesses, to which many appeal to avoid going to court. The term, according to Kenton (2021), stands for a “strategic discussion” that targets an agreement, a situation that is acceptable for each party (para. 1). Furthermore, such a form of interaction can be helpful not only in resolving the existing conflicts, but also in preparing the ground for future relationships by identifying the points of intersection.
Negotiation as a practice has a range of features that distinguish it from the other ways of resolving conflicts. One of its main specialties is voluntariness; none of the parties can be forced to participate, and if any oppression happens, such communication cannot classify as negotiation. Subsequently, it is multilateral by nature, which means that the opinions of all of the parties have equal value (“Dispute resolution reference guide,” 2017). This actually is the difference between negotiation and litigation because the role of the latter is to identify who is right and who is not.
The lack of involvement of any officials determines the lower degree of formality that negotiation has in comparison with the judiciary system. Notably, there are no universal rules to follow, and agreeing the format in which a particular discussion will occur is the responsibility of the parties. This includes the subject matter, location, timing, amount of sessions, use of documents, and other (“Dispute resolution reference guide,” 2017). Confidentiality, another essential parameter, is optional as well, but the decisions in this area should remain within the legal framework, which the further sections of the paper present. This flexibility, in fact, is the main advantage of negotiation because it provides sufficient room for strategic thinking and creativity, simplifying the search for commonly acceptable solutions.
Negotiation in Business
In business, negotiations can occur between existing as well as potential partners, manufacturers and customers, employers and workers, or other. As running a firm presupposes constant interaction with various groups of stakeholders, whose interests may be dissimilar, negotiating skills are critical for businesspeople. The most common subject matters of business disputes are the possible violation of legal or contractual rights, property damage, and work conditions (Williams, 2021). The bigger a certain firm is, the more vulnerable it is to the misunderstandings of such kinds since the amount of employees as well as existing and potential partners grows together with the scope of activity. For international corporations, the risks are even higher because cultural specificities may complicate finding a common ground. To enable it, flexibility as well as equal respect towards each party is essential, which calls for negotiation.
The frequency of disputes, however, is not the only reason why many businesses prefer to find a compromise rather than go to courts. Specifically, involving lawyers in disputes has a range of drawbacks that can reduce the effectiveness of such a solution. Transaction costs, including the loss of time, often are substantial; resolving all misunderstanding through the judiciary system, therefore, would be wasteful (“Settling out of court,” 2021). On the contrary, negotiation normally does not bring any additional financial burden.
The long-term consequences are worth noting as well because their effect on the performance of a business not necessarily is apparent at first sight but can be devastating. Thus, the possibility of destroying the relationship, which results from the lack of cooperation, is a serious threat (“Settling out of court,” 2021). The fact that the judiciary system places one of the parties in a dominant position, obliging the other to prove its innocence and offer excuses, can aggravate the tension. This not only adds to reputational losses, but also diverts attention and resources from operating the business, which leads to a reduction in its productivity (Williams, 2021). Negotiation, meanwhile, serves to satisfy each party to the maximal possible degree and smooth the disagreement, which makes it more relevant in resolving business disputes than litigation is.
Considering all of the above, discussion doubtlessly is recommended both to ordinary employees and to leaders and managers. It focuses on interests rather than positions, fostering equality and, consequently, providing a favorable ground for cooperation (“Dispute resolution reference guide,” 2017). To make it maximally effective, all of the participants should adhere to the same philosophy and share certain behavioral patterns because otherwise, little to no unity is possible. This is among the reasons why all of the corporate hierarchy levels should adopt negotiation as the main approach to resolving disputes. In other words, its outcomes normally are beneficial for each participant rather than only one of them; this strengthens the existing relations and simplifies making new contacts that can grow into partnerships.
In addition, as mentioned, the natural flexibility of negotiation favors strategic and creative thinking. It, in turn, can be helpful not solely in resolving a particular conflict, but in developing the business as well since it produces new ideas and solutions. Consequently, the benefits for the participants can be even more substantial in the longer term; this includes more customers or contracts, higher salaries, better career prospects, and other. In brief, successful negotiation enables so-called “win-win” outcomes, a situation where all of those who are involved in it gain something (“Dispute resolution reference guide,” 2017, para. 11). This determines its considerable popularity with American businesses and, consequently, the need for examining legal and social issues associated with its use, which the paper actually seeks to do.
Legal Discourse
Local Level
As mentioned, no common rules exist regarding the organizational issues of negotiation, such as its subject matter, location, amount of participants, and other. The obligations that agreements between private parties establish, however, fall under the so-called contract law in case of presenting them as “formalized legal documents” (“Contract law broken down,” 2020, para. 6). Composing such papers, which are referred to as contracts, is a way to ensure that the counterpart follows the conditions that they involve. If a breach occurs, a contract can serve as essential evidence for the court, adding to the probability of a compensation. However, it is essential to include a range of specific elements in the paper, so that it is valid.
Primarily, all documents of such a kind should involve a clear and detailed description of the central offer; otherwise, they have no legal force. Another critical point is an acceptance, a paragraph where all of the parties recognize that they find the offer satisfying (“Contract law broken down,” 2020). Both have to be written in a concise, non-ambiguous manner that does not leave room for misinterpretation. The next step is to specify what contribution each party is making, in other words, what all of them are exchanging. This can be money for goods or services, certain actions, or other (ibid.). As said above, negotiation is voluntary by definition, for which reason a contract should illustrate that the parties agreed to fulfil the duties it prescribes without any coercion.
The previous paragraph presents the conditions on which the result of negotiation is possible to enforce in case one or several of the parties refuse to follow the agreement. However, they are applicable exclusively to written papers; although the American law allows contracting verbally, such cases provide no evidence to courts (“Contract law broken down,” 2020). In addition, a fundamental requirement is to discuss legal activities. For instance, a contract on producing or selling forbidden drugs will not have legal force because its subject matter lies beyond the scope of law. It is worth noting as well that the nuances of contract legislation may differ from state to state, which calls for a thorough examination of the local specificities prior to resolving disputes.
Regarding informal negotiation, it typically results in oral agreements rather than any formalized documents. Such arrangements are not legally binding by nature; whether the parties shall adhere to the conditions or not, depends entirely on their honesty (“Contract law broken down,” 2020). Therefore, no recovery of damages by means of law is possible in case a breach occurs, which is a serious disadvantage of the given alternative dispute resolution in comparison with litigation.
Neither does the judiciary system of the United States regulate the behavior of the parties throughout discussions. While the civil law involves a general obligation to “negotiate in good faith,” the common law, under which the American legislation falls, does not (Marsden & Siedel, 2017, p. 133). Therefore, the probability of fair dealing depends directly and strongly on the willingness of the parties to reach a consensus rather than pursue their own interests. This adds to the risk of not succeeding and, consequently, can discourage both individuals and businesses from negotiation.
International Level
The above difference between common-law and civil-law countries can complicate international negotiation. Notably, in case the participants are used to dissimilar systems, the ways they behave in discussion most probably will be different as well, which may cause misunderstandings. Interestingly, the states that rely on the common law make the minority in the world, and the list includes quite few developed countries (“Common law countries,” 2022). Considering this, it is essential to introduce the American models of negotiation to foreigners because, being less widespread, it is unfamiliar to many.
In fact, the introduction is happening; a range of law schools as well as business schools around the globe have adopted materials related to negotiation from the United States. Cultural incompatibility, however, still can be a serious obstacle to finding a common ground, for which reason much literature on international negotiation focuses on how to avoid offending the counterpart (Marsden & Siedel, 2017). The latter, in turn, can derive from the mentioned judiciary dissimilarities because a resident of a civil-law country may be disappointed with the behavior of the American party that he or she finds unfair. Therefore, although the law of the USA does not impose any strict regulations, it is highly recommended to stick to the principles of fair dealing in international negotiation.
Violations
As mentioned, informal agreements, in which private discussions frequently result, do not leave room for legal recourse since they are not documented and, consequently, cannot serve as evidence. In one concern, such a lack of limits favors flexibility and creativity, adding to the effectiveness of the discussion. However, this works exclusively on the condition that all of the parties are honest and fulfill their duties, which the agreement involves, in good faith.
Otherwise, no guarantees are possible, due to which the American law actually recommends negotiators to accept the relatively high probability of not reaching a consensus eventually. According to this principle, “the duty of fair dealing does not extend to the pre-contractual discussions” “without a specific desire of the parties” (Marsden & Siedel, 2017, p. 133). In the simplest terms, this means that participants of informal negotiation in the United States should rely on each other’s honesty as on the main driving force of justice.
A deviation from a documented arrangement, on the contrary, classifies as a violation of the rights of the offended party. It, therefore, has a chance for a compensation in case of appealing to the court, whose form may differ from one state to another. The definition of a breach of contract, however, is common; notably, any failure to perform the obligations that the document presupposes falls under it (“Breach of contract,” n.d.). Such failures can be material or immaterial, depending on their seriousness, and actual or anticipatory, depending on the moment when they happen.
A material breach, as guessable from its name, occurs when one or several of the parties do not receive the result that the contract specifies. Any situation where the benefit to the wronged negotiator is substantially lower than he or she expected belongs to this category (Silverman, 2021). A textbook example is unacceptably poor quality of the provided good or service, which not only is disappointing, but also may bear a threat to health or even life. In the contract law, however, the fact of not meeting the discussed conditions is sufficient for recognizing the offender guilty.
Immaterial breaches of contract frequently are also referred to as partial or minor because their scale is smaller in comparison with the previous category. Specifically, they happen when one or several parties do fulfil their obligations but fail to succeed (Silverman, 2021). A delay in the delivery of purchased goods is a bright example; missing a deadline, serving cold food instead of hot, and other situations of similar kinds can classify as partial breaches as well. Although such occasions apparently are quite common, a compensation is possible only in case the wrong party can prove that the mistake led to financial losses (ibid). This, in turn, not necessarily is real, especially if the pre-contractual negotiation was informal and poorly documented.
Interestingly, a situation where no deviations from the agreement have taken place yet also may be relevant to regard as a contract breach. The necessary condition of this is the clear intention of one or more parties not to fulfil their obligations, which they indicate (Silverman, 2021). It is noteworthy that an explicit notification is not the only possible marker; unusual or unexpected behavior also may allow assuming a breach, which, in such a case, classifies as anticipatory. A violation that has happened already, meanwhile, is referred to as actual.
In case a negotiator is able to prove that the counterpart broke the contract, there is a chance for a remedy. It normally involves a compensation for the direct as well as indirect financial losses that prove to have resulted from the breach (Silverman, 2021). Resolving such conflicts, however, presupposes turning negotiation into litigation, which makes the former senseless because originally, it should serve as an alternative to the latter. To avoid this, it is essential to behave in good faith not only during discussions, but also after signing a contract. Even informal negotiation that does not presuppose documenting calls for honesty, as the lack of it may result in substantial reputational losses.
To avoid misunderstanding that can damage relations within the team as well as with partners and, in addition, alienate customers, negotiators should be careful. Notably, even oral agreements may call for noting and drafting, for instance, in case of a lack of trust between the parties. Even if this does not help enforce them, analyzing the archives may be useful for identifying and, subsequently, smoothing the existing vulnerabilities (Silverman, 2021). In addition, it is important to monitor organizational issues; thus, if a discussion consists of several phases, it may involve different representatives of a certain firm, who not necessarily are in permanent contact. Finally, international negotiation, being associated with outstandingly high responsibility, requires special attention, the detail on which is below.
International Disputes from Legal Viewpoint
As mentioned, the American judiciary system, which rests on the common law as a fundamental, does not involve any mandatory rules to regulate the process of negotiation, covering only its outcomes, such as contracts. It is critical to remember, however, that the residents of civil-law countries live in the system where faithful behavior during negotiation is compulsory. This gains special importance if the negotiation occurs at their place because in this case, they have the right to set the conditions (“The right negotiation environment,” 2022). However, even if the American law governs the dispute, appropriate behavior is a strong recommendation, so that the foreign counterpart does not feel disappointed and is probable to continue the collaboration.
Similar to the nuances of the American contract legislation, the points of the civil law that cover negotiation may have certain specialties in various societies. They predominantly are culture-related; normally, the Civil Code of each state enlists them (Marsden & Siedel, 2017). The basic principles of good faith, however, are common, and it is highly desirable for American businesses as well as individuals to align their disputes with foreigners to those rules.
The primary aspect is that contracts or any other forms of agreement are possible exclusively with the consent of all of the parties. Furthermore, the latter has to be given voluntarily, not under pressure or due to blackmail, to have legal force. This drives to the quite apparent conclusion that, although no set procedure of negotiation exists, it should remain within the framework of human rights (“Negotiation and mediation,” n.d.). Another requirement, which actually emerges from this assumption, is confidentiality, which means that none of the parties may disclose the information that it gains from the other without their permission (Marsden & Siedel, 2017). In addition, the right to respectful attitude, which is one of the fundamental, applies to negotiation as well. It should occur, therefore, only if each party has a serious intention to reach a consensus, which presupposes losing or rejecting something by definition.
An example of the above country-specific peculiarities is Spain, whose law on negotiation involves the so-called duty of loyalty. According to Marsden & Siedel (2017), the locals consider it an integral part of good faith as a concept. This rule presupposes notifying all participants in case negotiation with any third parties occurs. In fact, such a requirement overlaps partly with the principle of confidentiality, but its focus apparently is on the protection of honor and dignity.
Another possible interpretation of good faith includes the duty of candor, or sincerity, into it. This requirement, which exists in the United States as well, means the unacceptability of making knowingly false statements in process of negotiation (Marsden & Siedel, 2017). The behavior of such a kind actually violates not only the American contract law, but its tort equivalent as well, classifying as fraud. In addition, it is present in ethical codes of particular professions, including journalists and jurists.
One of the most debatable issues in international negotiation, presumably, is whether the parties may terminate it on their own will. Notably, it has been mentioned already that the common law system does not presuppose following the principles of good faith during pre-contractual disputes. This, simply stated, allows Americans to walk away at any moment without explanations (Marsden & Siedel, 2017). However, their counterparts from civil-law countries will not accept such behavior, and, in case the negotiation happens by foreign rules, it may be punishable. In particular, this occurs when there is no just cause for discontinuing the dispute and doing that is potentially harmful for the other party or parties (ibid.). Some countries consider such an action similar to the lack of intention to negotiate fairly, which is illegal as well.
Negotiation Services
All of the above makes it quite apparent that successful negotiation requires appropriate skills, knowledge, and, ideally, experience. Notably, the parties should be familiar with the specialties of the legal system that governs the dispute, understand how to perform within it, consider cultural background in international communication, and other. Furthermore, being persuasive also not necessarily is an easy task. To gain and maintain a maximally beneficial position, a party needs to be good at oratory and aware of the psychological mechanisms that regulate human behavior and decision-making (“How to negotiate,” 2020). Simply stated, negotiation, not only in politics, but also in business and even in everyday life, means diplomacy, which calls for relevant competencies.
In case an individual who is planning to participate in a dispute does not feel confident about his or her ability to conduct as well as end it appropriately, assistance may be necessary. One of the possible solutions is to complete a course in negotiation skills. Such trainings, if designed properly, provide both theoretical knowledge and a chance to try applying it to practical cases (“Negotiation training,” 2021). Apparently, such a combined approach allows for maximal effectiveness in terms of whether the trainees’ new skills will be helpful in real negotiation. The programs involve psychological guidance, the basics of oratory and conflict management, personal growth for developing confidence, and other. To enroll, it is sufficient to find the most appropriate training center by comparing and contrasting several because they are quite numerous.
Consulting belongs to negotiation services as well; in brief, it lies in accompanying a party before, during, and after a dispute. The first two steps involve formulating maximally favorable terms of the future contract, reviewing the proposed variants of agreement, and offering solutions to the problems that may appear. Regarding the post-contractual stage, it means monitoring the situation after the parties reach a consensus to ensure that they fulfil the obligations it imposes (“Contracting & negotiations,” n.d.). Such assistance enables negotiators to find more points of intersection than they would do otherwise and, consequently, binds them more strongly, paving the way for fruitful cooperation. The ways to receive the service of such a kind are to appeal to a company that gives legal advice or to hire a counsel. The more relevant option depends, primarily, on the budget of the business and the frequency with which it takes part in disputes.
Finally, it is possible to entrust negotiation to professional lawyers, whether staff or non-staff, so that they can respond to any issues that emerge in real time. Such a solution has a range of advantages in terms of benefits for all of the parties because specialists are more probable to consider the essential points in comparison with non-specialists, who may miss something. For instance, a businessperson who does not have much experience in the legal sphere not necessarily is aware of the need to compare the proposed contract to the other in the marketplace. This, meanwhile, can help assess the actual, not theoretical, benefits for which the agreement allows and, consequently, identify the necessary change if they do not seem to be sufficient (“Contracting & negotiations,” n.d.). In addition, negotiation between lawyers frequently occurs faster because there is no need for extra consulting, which may take long time.
Commercialization of Negotiation Services
As apparent from the previous section, negotiation is not only a popular alternative to litigation, but also a quite widespread commercialized service. A party that needs assistance in disputes has to pay for it, regardless of the form it has. Presumably, this can discourage small businesses as well as particular individuals from seeking help since they cannot afford it. Furthermore, even if enrolling for a course in negotiation skills or consulting a lawyer is not financial burden, there is no guarantee that the quality will be appropriate. It would be more reasonable, however, to comment on the commercialization of negotiation in more detail because it can have not only negative consequences.
In one respect, the aspects mentioned in the previous paragraph can deprive a certain share of both businesses and people of the access to the full scope of services. It has been mentioned, notably, that any type of assistance in negotiation is complex; training cover multiple issues, and consulting comprises several stages (“Contracting & negotiations,” n.d). Although such an approach enables all-round development and solving a variety of problems, receiving maximal benefit from it may be quite costly. For instance, the price for the course in negotiation and influence that the Massachusetts Institute of Technology offers equals $3,200 (“Mastering negotiation and influence,” 2022). Therefore, it is not commonly affordable, even notwithstanding the possibility of flexible payment.
The above situation fosters inequality, actually turning a chance to acquire the necessary skills into a privilege. Notably, while a relatively large business can pay for such a course, it remains unavailable for a semi-skilled worker who has career ambitions but lacks confidence for realizing them. In other words, the commercialization of negotiation can be beneficial for firms, which it releases from the need to train their employees to participate in disputes in-house. Individuals, meanwhile, not necessarily can afford an enrolment for a course of such a kind. For instance, an employee who is willing to have a conversation with his or her boss about promotion or better working conditions most probably will not be able to join. This adds to the existing economic as well as social disparities, aggravating the problems that the disadvantaged groups of population are experiencing.
On the contrary, it is essential to remember that commercializing anything means the appearance of a new industry, which, in turn, contributes to economic performance. Notably, the companies that provide trainings on negotiation skills, legal advice, and lawyers pay taxes, the sums of which depend directly on their income. Therefore, their active cooperation with large businesses can help fill local budgets and, consequently, improve the quality of the residents’ lives. One of the advantages is no need to raise taxes for small businesses, individual entrepreneurs, and ordinary workers, which, consequently, makes them less financially dependent.
Furthermore, the above nuance that a high price does not guarantee high quality is possible to regard from different angles as well. At first sight, it may seem to cause despair because the chance for both individuals and firms with moderate and low income to have proper assistance in negotiation becomes even lower. In fact, however, the more providers of such services appear, the higher the rivalry in the market grows. This launches a natural selection; in other words, the customers begin to opt for the offers that they find better and ignore less attractive variants. In such a context, the quality of service becomes the priority for providers, which, in turn, stimulates the development of the entire industry. In brief, the disadvantages of commercialization are apparent on a short-term perspective but can turn into benefits with the time.
Conclusion
The paper defines and explains negotiation as an alternative method of dispute resolution that helps settle out of court. Some may find a decision of such a kind unreasonable because the judiciary system offers specially designed solutions for particular situations, which can simplify decision-making considerably. In addition, relying on it minimizes the probability of problems with law that could aggravate the conflict while negotiation does not allow for any universal patterns. In fact, however, it has several substantial advantages in comparison with litigation that are the reasons why it is highly recommended to both businesses and individuals.
First, it is noteworthy that interaction with courts presupposes attracting public attention to the cases. This, meanwhile, can be undesirable, especially for large corporations and celebrities, because of the possible reputation-related consequences (Williams, 2021). The probability of disclosing financial data is another concern since the competitors may benefit from this information. To avoid such occasions, it is more relevant to resolve conflicts in private, so that they do not turn into scandals.
Another noteworthy point is that negotiation can be helpful not only in reaching a consensus on a particular issue, but also in preparing the ground for further relationships. Notably, appealing to the court threatens the trust between the parties because one of them wins while the other loses (“Settling out of court,” 2021). On the contrary, the objection of negotiation is an agreement, which term stands for commonly acceptable conditions. Creating them paves the way for fruitful cooperation in the future since none of the involved businesses or individuals dominates over the counterparts.
Finally, the above lack of a set framework is a strength of negotiation as well because it provides much room for creative thinking and strategic planning. This, in turn, favors the appearance of new ideas, pushing the development of the business (Williams, 2021). The more freedom negotiators have, the more points of intersection they are likely to find; therefore, out-of-court disputes should occur in a maximally informal and friendly atmosphere. This is possible exclusively on the condition that participation in them is voluntary and all of the involved seek to reach a consensus because pressure and manipulations kill trust and, consequently, make negotiation senseless.
To reduce the probability of such unethical behavior, the civil law regulates the given method of dispute resolution, obliging those who use it to stick to the principles of good faith. This means, for instance, the unacceptability of knowingly false statements and of disclosing any information to third parties without receiving a consent from counterparts (Marsden & Siedel, 2017). These points have not only an ethical meaning, but also practical importance. Specifically, loyalty and confidentiality are the basics of mutually respectful interaction, without which, as mentioned, no agreement is possible. Another action, which the civil law forbids, is leaving the discussion without ending it separate from the other parties (Marsden & Siedel, 2017). Notably, it may classify as not willing to reach an agreement from the beginning or be potentially harmful for the wronged participant or participants.
The United States, however, is among the countries that obey the common law, not civil, which means that the above rules do not extend to American negotiators. Simply stated, they may cease the discussion without any comments in case they find something unsatisfying (Marsden & Siedel, 2017). Neither is sticking to the other principles of fair dealing, such as the above confidentiality and loyalty, compulsory for them to follow if the dispute occurs by their rules. The latter nuance, in fact, needs clarifying prior to negotiation, so that all of the parties have an understanding of how the other are allowed to behave. Nevertheless, even if the common law governs a particular discussion between Americans and foreigners, it is more reasonable for the former to act within the framework of ethics to avoid offending the counterpart. Such an occasion can cause serious reputational losses, which, in turn, may grow into material due to the reduction of customer loyalty.
It is noteworthy that, although signing a contract is the main target of negotiation, it is not the point where the process ends. Notably, there is no guarantee that the parties will fulfil their duties, which the agreement involves. The importance of monitoring the post-contractual stage, therefore, is doubtless; both civil-law and common-law counties, including the USA, have special contract law to identify and punish violations. In accordance with it, the offended party has the right to a compensation for the unwanted consequences of a contract breach.
The latter may be material, which lies in not providing the agreed goods or services, and immaterial, also known as partial or minor, to which category smaller-scale occasions like delays belong. Furthermore, the lack of the intention to follow the contract, which may be apparent from people’s behavior at the stage of negotiation, classifies as the so-called anticipatory breach (Silverman, 2021). The forms of compensation may differ from one state to another, but the conditions, on which are particular case is possible to regard as a violation of the contract law, are universal.
Another form of the protection of both individuals and businesses that negotiate from potential escalations is assistance, which they may receive at each stage of the process. Specifically, professional lawyers can give legal advice to those who are willing to improve their awareness of legislative nuances, review drafts of contracts to eliminate manipulations, and monitor the post-contractual situation (“Contracting & negotiations,” n.d.). Furthermore, such specialists frequently participate in negotiation directly, representing the parties. This allows not only for minimizing the risks that the lack of relevant knowledge and experience in non-professionals bears, but also for saving time and effort because there is no need for regular consultations.
To summarize, the popularity of negotiation as an alternative to resolving dispute in court apparently derives from the fact that it allows for more flexibility and freedom. Due to this, participants have more chances to identify the points where they agree in comparison with litigation, which serves to bind them and favors further cooperation. So that it is successful, negotiators have to follow the principles of good faith not only during the discussion, but also after signing the contract. While the law of the United States involves the former as a recommendation rather than as a strict rule, not doing the latter is punishable both in the common and in the civil legislation.
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