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The Art of Legal War

  Feb 28, 2013
 

James Ochieng’ Oduol, Senior Partner,TRIPLEOLAW ADVOCATES was at Strathmore Business School to deliver a legal session to SBS Alumni members during a breakfast session held on Wednesday 27th February 2013.

 

He began by defining a legal dispute as a conflict of claims on one side met by contrary claims or allegations on the other. There are two main methods of Legal Dispute Resolution which include Litigation; a proceeding in court and Alternative Dispute Resolution (ADR) which involves resolution of a dispute through other means such as negotiation, mediation and arbitration other than litigation.

According to Mr Oduol, the best method of resolving conflict is through ADR as it is private, fast and flexible and saves in costs.

Negotiation

Negotiators are required to focus on the interests of each disputant with a goal of creating satisfactory options for resolution and can do so by using one of the various styles of negotiation such as competitive bargaining, co-operative bargaining, hard bargaining and soft bargaining. The weaker party in a negotiation should concentrate on assessing their Best Alternative to a Negotiated Agreement (BATNA) because the party with the best BATNA has the upper hand in the negotiation.

In order to succeed, disputants need to identify and evaluate the goals they need to achieve. It is also important for parties to keep in mind the possibility of being unable to reach a negotiated solution.

Developing Trust

Both parties need to develop trust to humanize their members in order to demonstrate each individual’s desire to resolve the dispute. Trust can be achieved by being attentive to the physical comfort of all parties, being polite and courteous, engaging in casual discussion prior or during breaks and observing the culture and customs of other parties. It is important for neither party to mislead or exaggerate claims when the facts are well known by the other party.

Persuasion

In order to effectively persuade in the negotiations, parties can employ techniques such as the use of good body language and facial expressions, asking open ended questions about the other parties, being courteous, maintaining eye contact, using themes in communication, establishing common grounds and changing the conflict into a mutual problem solving process.

When all reasonable avenues have been exhausted, a party can leave the negotiation which is often viewed as an extreme step. When returning back to further the negotiations, it is important to reassure the other parties of your interest in resolving the dispute at the negotiation table.

If an issue becomes difficult, move onto the next issue, returning to the difficult issue later. In addition, when the emotion of a party halts progress, use personal skills to reset the tone of the negotiation and call for a break.

The end of a negotiation process often marks the beginning of a new relationship between parties or a new phase of a long-standing relationship. In concluding negotiations, reduce the agreements to writing, agreeing on future sessions and tasks. Seek verbal confirmation on every significant agreement, remain calm during this confirmation period and be reassuring to the other party.

When summarizing the agreements, seek clarification or corrections where necessary on the different agreements. Commit to the overall negotiated settlement to writing do not leave the venue until a written summary has been agreed to and signed by the parties. Once this is done, take the time to compliment the other parties to the negotiation.

About James Ochieng’ Oduol

LL.B (Hons.), Nbi. Diploma in Law (KSL), LL. M (Warwick), F.CI Arb. CPS (K). Advocate, Commissioner for Oaths and Notary Public.

James Ochieng’-Odoul graduated from the University of Nairobi in 1986 with a Bachelor of Laws (LL.B) (Hons) Degree.

James did his articles with the firm of Mereka & Company Advocates and worked for the same firm for one year .He was later admitted as an Advocate of the High Court of Kenya in October 1987. He has been in continuous practice since then. In 1988 he joined the firm of Ngobi & Company Advocates where he worked for four years before proceeding on a one year leave to study for his Master’s Degree in Law at the University of Warwick in the United Kingdom which he successfully completed in September 1992.

Thereafter he formed the firm of Ochieng Oduol & Co which first merged with the firm of Onyango, Ohaga & Co. and later Kibet & Co to form Ochieng’, Onyango Kibet and Ohaga Advocates (now TripleOlaw Advocates).

His forte is Civil Litigation, Appellate litigation and Alternative Dispute Resolution with specific bias to Arbitration. In fact James is a Fellow of the Chartered Institute of Arbitrators.

PROFESSIONAL MEMBERSHIP:Law Society of Kenya; East Africa Law Society.



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