INTRODUCTION

Negotiation is a fundamental element of the social sphere of any society. Knowingly or Unknowingly, every individual varying from a common man to a corporate body negotiates to fulfil their personal interests. All such negotiations are either governed by the rational or irrational side of every individual. Such rational or irrational approach plays a decisive role in the success or failure of the negotiation. Talking about the negotiations conducted between parties for civil or corporate issues, it is important to have a level playing field and an unbiased, positive environment which can ensure the best possible outcome for both the parties. Such environment is of extreme importance. Although, there arises some situations when it is compromised, which directly impacts the results of the negotiation. Therefore, in this paper, we will try to dwell into several biases which can impact negatively on the outcome of a negotiation. The paper further evaluate the best possible way or an alternative to bypass such hurdles and ensure a positive environment for a negotiation. „It is worthwhile to recall that the failure to negotiate in Mahabharata resulted in a disastrous consequence?.1 This words of the retired Chief Justice of India, N. V. Ramana, while delivering a judgment, rightly justifies the importance of the process of negotiation, the grave consequences of the failure of negotiation and attempts to shed light on the issues that might result in failure of such fruitful negotiation. In current era, there may not be as grave repercussion of a failed negotiation as in case of Mahabharata, but it can surely force you to litigation. It will further result in loss of capital as well as time alongside the probability of losing everything demanded. Whereas, on the other side, negotiation is time efficient, cause no or minimal capital investment and ensures at least some, if not all, demands by mutual agreement. Hence, negotiation still plays a vital role in the current time. Therefore, to ensure the efficiency of negotiation, we need to understand and evaluate the hurdles to such negotiation and find successful ways to element the same. One of such hurdles are the biases that both the parties may have over each-other or any particular issue. Biases deviates the purpose of negotiation and therefore, let us have a look over them.
 

1. ERRONEOUS FIXED PIE BELIEF.

While negotiating, parties often assume that the end result of the negotiation must be distributive in nature. A presumption is made by the party that they will have a positive outcome of negotiation, only if they gets certain portion of the object in dispute. This erroneous perception leaves no space for an integrative settlement and mutually beneficial trade-offs. It results in a deadlock of demands, killing the possibility of innovative ideas for settlement.2 Also, the erroneous perception forces the negotiators to think that the value and the demands are incompatible and therefore approaches individual aspects rather than aiming for a collective solution for the issue on hand. Such an approach reduces the „value? of negotiation, hence severely impact the outcome of such negotiation.
 

2. LOSE-LOSE PRECONCEPTION

“Losses looms larger than the corresponding gains”. Parties entering into the negotiations usually have prejudiced conceptions over the other party. Such bias sometimes results in an unprecedented situation where the parties swift the focus from the benefits that they can gain from the negotiation and focuses on ensuring that the party do not get what they desire. As the above mentioned quote stats, a loss-loss perception focus more on the loss of the other party at their own cost, rather than mutual gains. In other words, this can even lead to a possible situation where the party is ready to bear loss, and therefore, rejects any probability of compromise with the other party. Such a „loss-loss mindset? can never ensure a positive outcome of any negotiations. In other words, it is a tendency of the negotiators to even settle for the outcomes that neither of the party prefers or for something that hurts the interests of both the parties. This type of mindset can even give rise to an illusory situation as mentioned in the next point.
 

3. ILLUSORY CONFLICTS

Illusory conflict is created when the parties enter into a negotiation with several misconceptions over the other party. The extent of such prejudice is such high that they end up by creating „pseudo-information? by either misinterpreting it on the basis of the preconception or complete ignores the basis of the points placed by the other party. In such circumstances, they presumes the presence of a conflict with the other party. Such presumption makes the results of negotiation obvious, either they end up having a failed round of negotiation or they will end up in a „lose-lose situation?, as mentioned in point 2. Such a situation can be avoided by removing such preconceptions as well as by avoiding the fixed pie belief. Both the parties should ensure that they are open to as many options and evaluate the benefits guaranteed from such options wisely, without such preconceptions.3 Such an approach will definitely avoid a lose-lose situation and will also avoid them from assuming a false conflict under any illusion created from the prejudice.
 

4. EGOCENTRISM

Egocentrism is a kind of bias where a negotiator has high degree of self-focus. Persons with egocentric biases are highly problematic for an ideal negotiation. Such a person will primarily focus on their interests only. An egocentric negotiator is indeed different from a competitive negotiator. A competitive negotiator is someone who is assertive in nature, i.e., have a detailed outline of his demands and presses his demand with a strong impact on the table of negotiations. He indeed focuses on his interests and it is hard to negotiate with such negotiator, but it is not at all problematic. Such negotiator does not completely ignores the demands of the other negotiator. Whereas a Egocentric negotiator operates on the basis of ego. Usually an egocentric negotiator is not even genuinely concerned of his own interests, rather he will completely focus on something that he is unwilling to let go just to satisfy his personal ideology or to intentionally disturb the equilibrium set in a negotiation, in order to fulfil his egoist demands. Such a bias can develop in any individual due to cognitive biases, lack of ability to interact with the society and understand societal needs. With an egocentric approach, there is no probability of a successful negotiation as the basic fundamentals of the process of negotiation is compromised. It also ruins the environment that facilitates negotiation and can further force the other negotiator to be uncooperative.4 The end result, obviously, will be a deadlock of demands and interests which will eventual fail the negotiation. To avoid it, it is extremely important for every individual who enters into a negotiation to leave any kind of loss or an vindictive approach due to some issues with the other negotiator in past. Also, it is important to focus more on the situation in hand and understand the interests of oneself as well as the other negotiator. This can help to widen the distance between ego and the process of negotiation.
 

5. REACTIVE DEVALUATION

Reactive devaluation is a process of devaluating the concession of the other negotiator without any logical backing. It is usually done just as an reaction simply because the other person had made them. Such reactive devaluation undermines the concession, offer or any proposal made during a negotiation, which further devaluate the gravity of seriousness of the negotiation. Such bias has no connection with the quality of concession made.5 When a negotiator reduces the concession of the other side just become the other person had made it, the tendence to know more about such concession or to counter it with their own interests gets significantly lesser. It severely hampers the process of negotiation.For instance, in case a cease-fire agreement proposed by Indian government is put forward to the Indian citizens, it has a high probability of acceptance within the country. But, if the same proposal is said to be made by Pakistan Government (assuming that both the country are at a war), the proposal will have lesser probability of acceptance. Such a perception was made as a reaction of whom presents the proposal. As soon as the source of such proposal was identified as Government of Pakistan, it was immediately devaluated. Such reactive devaluation can also occur between two individuals who are negotiating on certain aspect. In an ideal situation, it is necessary for a negotiator to control such intuitions and prejudiced opinions towards any topic over which the negotiations are ongoing. Although, the reactive devaluation provides contrary to it. Therefore, in order to avoid such a situation, it is important to remove the biases and to divert oneself from thinking from an egoist point of view.
 

6. CONFIRMATIVE BIAS

Confirmative bias is a tendency of the negotiator to process the factual information presented during the negotiations from a particular lens which merely justifies his own belief or claim. With the help of the diagram drawn below, it can be evident that a negotiator with confirmative bias will intentionally leave behind all the information and will merely focus on the one that overlaps, i.e., supports his way of reasoning. Such approach deviates the negotiation. Therefore, to avoid this, it is important for any negotiator to evaluate all the facts together and does not isolate any fact or incident to fulfil his/limited aspect of the negotiations.
 

7. IRRATIONAL COMMITMENTS TO REACH A CONCLUSION

Along with all the above mentioned biases, irrational commitment is dealt with extreme ignorance. A negotiator can provide irrational commitments due to several circumstances evolving during the negotiation. For instance, a negotiator can give such commitment to get something that he desires from the other party. In such situation, negotiator may give the commitment that he cannot, in any capacity, fulfil it. It is done with an malafide intention of gaining an edge from the negotiating process. Such irrational escalation of commitment is often done to allow the prior actions (of the other party) to fulfil the future needs of the negotiator. Such escalation of commitment is a bias which ruins the final outcome of the negotiation as well as the judgement/ prediction of success of any negotiation.6 In a course of a failure, such commitments creates a pseudo situation, which motivates the other negotiator to invest his or her resources and gives confidence in such failed course of action. This eventually ends up in some action from the counterpart, resulting in an investment. But when the time comes for the fulfilment of the irrational commitment, it can be easily forfeit. At this time, the investment of other party will have become irreversible. Such malicious approach, based on a bias, has been possible because of no governing act or regulation over such negotiation. Alongside the requirement of precaution and moral ethics, a regulating law is required to restrict such practices of irrational commitments made intentionally to gain undue benefits from the process of negotiations. After evaluating several biases that has the potential to affect the negotiation, it is equally important to understand and figure out the ways to constrain them from having an adverse impact on the process of negotiations. For this, the paper takes the Harvard Program on Negotiation (PoN) into consideration and will dwell deeper into the best possible alternatives to bypass such biases and fixed concessions and ensure as neutral and biases free negotiation as possible.
 

1. SELF-AWARENESS DURING THE ONGOING PROCESS OF NEGOTIATION

Self-awareness is one of the most important element required in a negotiation. SelfAwareness means to have a correct knowledge and concession of the interests of oneself during a negotiation.7 Self-awareness helps in developing a plan or a strategy and prepare responses after considering the interests, which allows the negotiator to remain claim. This can be done only through the help of self-awareness present during the negotiation.
 

2. DIVIDE THE NEGOTIATION IN VARIOUS SESSIONS

In a negotiation, the negotiators are the individuals who generates options, which ultimately decide the fortune of the negotiation. Therefore, it is important to keep the minds of the negotiator fresh and open to options.9 Although, rushing towards the end, a normal tendency of human beings, will risk the whole negotiation as it will fail to evaluate every information, even in a simple and low-scaled negotiations. It helps to evaluate the interests and demands placed by the other negotiator and also to evaluate all information available during the negotiation. Therefore, conducting negotiation over multiple session is of utmost importance.
 

3. ADOPTING AN OUTSIDER’S VIEWS

It is very important for a negotiator to consider the demands placed from his as well as the other party?s side for a neutral perspective. This will ensure that no biases will govern the terms of negotiation. Also, it will create a lot of opportunity to create multiple options which further minimises the probability of ruining a negotiation due to egocentric approach or reactive devaluation. Therefore, all this strategies combined together can provide a negotiator with sufficient time and capability to carefully evaluate his own interests and the demands of the other party without any kind of influence from the biases as mentioned above. Due to the apparent benefits of negotiation such as complete party control, reduces court docket, and the time efficiency alongside lesser capital investment has brought negotiation in spotlight of legal scholars. It is evident that different „out of court? settlement option are emerging as the primary option to reduce the burden over the court as well as provide an „easy way out? for the parties having any civil or commercial disputes. For instance, India, being a signatory of the Singapore convention, has planned to introduce compulsory mediation before litigation through the Mediation Bill, currently due in Rajya Sabha. With the increase in usage of such means to resolve the dispute, rather voluntary or forced, the legal system will try to search for other subsidiary options to resolve the issues in early stage of its evolution only. Here, negotiation can be an ideal substitute for the parties, not willing to go for a forced mediation and want to resolve the dispute between themselves, and without any third party interventions.Therefore, at a time when the process of negotiation is slowly getting its place in the legal system of India, it is important to understand the hurdles and the ways to overcome them before it gets deeply rooted in the system. In this paper, we talked about several of such hurdles which can paralysis the process of negotiation, which will eventually have an adverse impact on the acceptance of negotiation as a substitute for forced mediation. Therefore, it is important to curb such practices and ensure a secure and nourishable environment is provided to this new concept of negotiations. For this, the paper in the later half has suggested several ways to constrain such hurdles and biases to have an adverse impact over the process of negotiations.