Mediation & ADR
4. Negotiation
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 19 Aug 2015
- Negotiation is an informal process that assists parties to reach an agreement about the issues in dispute to avoid going to court.
- You can negotiate directly with the other party by talking or writing to them and trying to reach an agreement.
- Alternatively both parties may decide to get independent legal advice and have a lawyer represent your interests. The lawyers then engage in discussion to try to negotiate an agreement on your behalf. Remember your lawyer is bound by your instructions at all stages in this process. You should make sure they clearly understand what is important to you.
- A negotiation between lawyers usually begins with both parties attending individual appointments with their lawyers.
- At your appointment you will receive legal advice and you will provide instructions to your lawyer about what it is you are seeking.
- Your lawyer will then engage in discussions and written correspondence with the other party on your behalf.
- If agreement is reached on some or all of the issues in dispute then your lawyer can assist in drafting an agreement.
- If both parties are happy with the terms of the agreement then you can both sign the document and it becomes legally binding as a deed or contract.
- Usually an agreement is the outcome of a negotiation. Your lawyer can assist you in drafting this document.
- You may make an agreement about almost anything including:
- to divide property;
- to settle a will;
- about parenting arrangements (parenting plan);
- for compensation to be paid; or
- reinstatement to a position of employment.
- You should discuss the enforceability of your negotiated agreement with your lawyer before signing the agreement.
- Your lawyer is the best person to help you to fully understand your rights and obligations before signing any agreement.
- If both parties freely sign the agreement then it is effectively a contractual agreement. Contract law provides the legal framework for breaches and the available remedies. Some remedies may include:
- termination of an agreement;
- renewal of the cause of action (being able to go back to ADR or to court);
- specific performance; or
- legislative review.
- You can find more information about this in our topic on Contract Law.
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