Negotiation Strategy in Compromise Negotiations in Labour Court
In this article, we shall examine negotiation strategy and certain techniques and tactics which could be useful in the course of compromise negotiations held at the Thai Labour Court. One should bear in mind that every negotiation is different and the correct strategy and approach will need to be adapted according to various factors such as the issues in the dispute, who the parties are, the strength of party’s legal position and several other issues such as time/ money constraints and the culture of the person who you are negotiating with.
Strategy in Compromise Negotiations:
Compromise negotiations are an important part of labour law cases as the Labour Courts generally try to encourage the parties to reach a compromise settlement so that the dispute can be resolved swiftly without the need for a trial which can be expensive and time consuming for all parties concerned. Before participating in compromise negotiations the writer recommends that the parties should consider the following points as they can help to achieve the best possible outcome from the negotiation/compromise process:
Provide the other party some room to compromise – When negotiating, one should be careful not to drive too hard a bargain with the other side, one should always leave the other side some room to maneuver in the discussions so that there is space/flexibility for the parties to reach a compromise. If the other party is backed into a corner it could undermine the entire process and result in the dispute going to trial.
Getting & Giving Concessions – It is often sensible to start from the position that when you give the other party something they want in the negotiation, you should at the same time ask for something you want. The writer would like to stress that it can be quite risky if a party gives the other side too much too quickly without asking for reasonable concessions in return, this is because it can be quite hard to ask for them later in the course of negotiations. When making a concession to the other side, the writer recommends that the person should make the concession conditional to getting something back i.e. “the Company will give you 6 months’ severance pay and a reference letter provided that you sign the confidentiality agreement, and agree to drop all claims against the company”.
Position Planning – Before the negotiations commence a party to a compromise negotiation should carefully plan and determine what they are willing to yield on and what is their ‘bottom line’ as this will help them to determine where they can give ground and what their minimum demands are. It is also a good idea to rank your priorities from most important to least important as it can help a person to better understand what they can and can’t accept with respect to offers from the other side. In relation to position planning for labour law conflicts it is also sensible to consult with a lawyer to gain an understanding of what are the normal legal outcomes for a similar type of labour law dispute as it can help to ensure that your positions are reasonable and not extreme because if a position is too extreme and the person is unwilling to budge it can easily result in compromise negotiations failing and the matter going to trial with all the risks that can pose. When a party is planning their negotiation position it can also help to consider what the other side wants as it can help that party make better and more suitable offers to the other side which could thereby increase the likelihood of success in the negotiations.
Build Rapport – Studies have shown that small talk of a friendly nature prior to the formal commencement of negotiations can have a positive outcome in terms of a negotiation as it can help to weaken the stance of the other side and cause them to soften their position. It is also worth noting that research has shown that self-disclosures made during a negotiation can also help to bring about a positive outcome because when a person discloses unrelated personal information it can help to build rapport between the parties which in turn can result in their counterparts trusting more and acting less aggressively, thereby giving the person a better overall deal in the compromise negotiation. To build rapport with the other side it is also important to consider other factors too such as tone of voice, body language and word choice because if a party speaks and acts in a rude or aggressive manner it can destroy the other sides willingness to compromise and cause them to try to seek revenge through trial.
Extreme Positions - If the other side starts the negotiation process with an extreme opening position, one strategy to combat this is to make an equally extreme counter-offer as this should help to bring the other party back to reality and show them that you will not be intimidated. However, as many skilled negotiators will note, one should be careful using this approach as it can result in the compromise negotiations becoming deadlocked which in turn will result in the dispute ultimately ending up at trial in the Labour Court.
Perception of Strength Not Weakness - When the party you are conducting compromise negotiations with has a stronger position than you, such as that between a terminated employee and their ex-boss, the employee may feel intimidated and use such phrases as
•“I know this probably sounds like a significant amount but I would like to humbly ask for x months salary.”
•“I really don’t like begging but I really need x Baht in order to walk away from this lawsuit.”
The writer recommends that if a person is in such a situation they should never show weakness like this as it will likely result in the other party asserting their dominance and possible behaving more unreasonably and aggressively, which in turn could result in the person getting a poorer deal than they otherwise would have received. Instead, the writer proposes that the person should demonstrate quiet confidence without becoming arrogant. The author would like to stress that certain research has shown that often parties get a superior negotiation outcome when their word and body language they use in negotiations exhibits confidence and strength. A person should be careful not to becoming overly self-assured as this can have a highly damaging effect to negotiations as it can destroy goodwill between the parties and make it harder for a deal to be reached.
Breaking It Down - Some negotiations fail because the parties take a tough "all or nothing" position whereby if they don’t get everything they want they threaten to walk away. To overcome this type of behavior, the writer recommends that if a party encounters this they should try to break the compromise negotiations down into smaller issues and attempt to reach an agreement on each issue separately. This approach can make major disputes easy to resolve as the parties can feel that they are making real progress as each aspect of a dispute is dealt with; this strategy also has psychological benefits as it makes the negotiation process seem less daunting and more achievable in practice.
Should you require any legal support relating to labour law then please contact us at harmniti Law Office Co., Ltd. 2/2 Bhakdi Building 2nd Floor, Witthayu Road, Lumphini, Pathumwan, Bangkok 10330 Tel: (66) 2680 9777 Fax: (66) 2680 9711 Email: ryan [at] dlo.co.th or info [at] dlo.co.th