Introduction
There is no construction contract that is perfect, partly because parties cannot have the same anticipation on the specific aspects of a project that will experience problems right from the time negotiations for contract happen and agreements reached. A number of clauses exist that one can find in a construction of the contract. However, these clauses are subject to negotiation and structure in a manner that avoids many problems and disputes. There is entire need to understand the needs and requirements of conflict resolution through negotiations, a process that calls for making offers to the opposite negotiating partner without having any form of prejudice. Also, there is need to ensure that there is satisfaction and a written document upon reaching agreement in the form of contract. The paper is thus going to draft a negotiation dispute resolution clause followed by explaining the same clause.
Part 1: A Sample of Dispute Resolution Clause (Negotiations)
Both parties involved in dispute shall attempt in good faith to find a resolution to any dispute of claim in the relation to this Agreement by engaging in negotiations, which shall involve a representative of all the Parties involved in the presence of authority to help settle the relevant dispute. Representatives for parties to engage in negotiations will receive a seven (7) days written notice before the start of negotiations. In case there is no amicable solution to the dispute within twenty-one (21) days starting from the date that each Party served the written notice to the opposite party in regards to the dispute, then the remaining provisions of this Clause [ ] shall be effective with immediate effect.
Whenever people are conversing about negotiations, most of them have an assumption that negotiation relates to the need for drafting a document, having an agreement, having a contract, have had other legally abiding documents. However, the English law has never required the need for parties to conclude a written agreement as a mean of making the contract valid, with the exception for those special transactions like the sale of land. Despite this fact, the majority of the present day business contacts occur in the form of writing. When it comes to negotiations, the case is different. Negotiation law does not necessarily require a written agreement for the solution to be valid. There is a need to have a clear distinction between the role of lawyers when it comes to giving legal advice relating to the process of negotiations (Martin & Rose, 2003).
Another legal issue surrounding the negotiation clause is determining when there is an enforceable contract. The law stipulates that an enforceable contract will be present at the time when parties come to an agreement on the terms of negotiations. Basing on the contract law regarding negotiations, there will be no agreement till when the material elements of the deal have been subject to negotiate and parties reaching an agreement. In case the negotiating parties reach an agreement, each party will require getting some legal advice before making formal acceptance the offer or before signing an agreement that settles the dispute (Spencer, 2011).
According to Kennedy (2010), if an agreement is subject to reach through negotiation, the laws stipulates that the involved parties should put this agreement in writing to ensure there is a record in case another dispute about the same agreement occurs in future. To some occasions, there might be some formal requirements in case the dispute is already in court. To such cases, forms of consent orders will be available in Magistrate Court. Negotiating parties will need to ensure that there is a full and final satisfaction of a reached agreement in case the issue settled was something less than what the other party was initially requesting.
There are also ways in which negotiation clause could apply in a business managerial setting on a real personal level. When in a negotiation, especially on matters regarding the managerial level, the negotiating party should keep the other negotiating party away from the problem. Remember to remain in control of personal emotions, especially when you have other personal conflicts with the party, you are engaged in negotiations. The negotiating party should always ensure that he or she would deliver the offer made to the other partner in case of a business managerial setting. To apply this clause in a managerial setting on personal grounds, the involved parties need to keep records of these negotiations. These records may be in the form of copies of letters sent notes taken in meetings and offered made, and identifying people that were present during those negotiations.
Conclusion
Upon understanding the needs and requirements of conflict resolution through negotiation, on can note that it is preferable to make offers to the opposite negotiating partner without any form of prejudice. The reason behind this concept is that these negations are subject to make off the record and relies on the ability to negotiate parties to trust each other without involving the court proceedings. In the case when one negotiating party makes the part offer to reach a settlement of the dispute, one need to make sure that the offer made is in full and final satisfaction. The offer also needs to have a written document accompanying it as part of the settlement process. A written document is a precautionary procedure to ensure that the other party would not come back in future to claim ownership of some part of the deal that was already subject to settle through negotiation.
References
Kennedy, G. (2010). Negotiation: An A-Z Guide. London: Profile.
Martin, J. R., & Rose, D. (2003). Working with discourse: Meaning beyond the clause. London: Continuum.
Spencer, D. (2011). Principles of dispute resolution. Pyrmont, N.S.W: Thomson Reuters (Professional) Australia.
