Inter-Firm Negotiations and Conflict: The Need to Negotiate 'Process' to Sustain Cross-Border Commercial Relationships

Journal of Arbitration and Mediation (2011)

24 Pages Posted: 30 Jul 2013  

Peter Kamminga

VU University Amsterdam - Faculty of Law; Harvard Law School (Program on Negotiation); University of California Hastings College of the Law

Date Written: July 29, 2011

Abstract

During contract negotiations we negotiate content but often forget process. Content – the subject of the transaction – is what parties have their focus on naturally. On the other hand, how parties will collaboratively achieve their goals (the process) is an often-overlooked aspect in contracting and contracts. Yet, this element of the contractual relationship is as important as arrangements with regard to the content to achieve successful results. This is particularly so in cross-border contractual relations, where miscommunication about the “how” may easily lead to conflict and have significant consequences for achieving the goal of the agreement. Therefore, the question I address is what negotiators should address regarding the process of collaboration during the contracting process to minimize the chance of conflict and optimize the success of the parties’ efforts in a global market? I use the example of contracting for complex infrastructure projects to illustrate the interrelation between conflict, achieving the goals of the contractual agreement, and failure to discuss the collaboration process. Second, I draw upon literature on critical success factors to identify what elements related to the process of collaboration negotiators may want to include in the contract negotiations of long-term contractual relationships.

Keywords: conflict, collaboration, negotiation, contracting process, infrastructure

Suggested Citation

Kamminga, Peter, Inter-Firm Negotiations and Conflict: The Need to Negotiate 'Process' to Sustain Cross-Border Commercial Relationships (July 29, 2011). Journal of Arbitration and Mediation (2011). Available at SSRN: https://ssrn.com/abstract=2302677

Peter Kamminga (Contact Author)

VU University Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
Amsterdam, 1081 HV
Netherlands

Harvard Law School (Program on Negotiation) ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

HOME PAGE: http://www.uchastings.edu/faculty-administration/faculty/kamminga/index.html

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