Update [2018-8-2 11:7:24 by Frank Schnittger]: I’ve added a chapter on Last Minute Brinkmanship to make my description of the process more complete.
Introduction
Having studied sociology, politics, organisational development and conflict resolution, and having worked in community development and industrial relations I have always had an abiding interest in the negotiation process. I was once accepted to do a research Phd on the negotiating process but didn’t proceed because I couldn’t find a suitably experienced or qualified supervisor.
What also shocked me was the paucity of research or literature which shed much light on the process or which might have been of much practical guidance for practitioners of the art. In my experience most good negotiators were either self taught or had a natural gift for the process. “Management” courses in negotiating skills were beginning to emerge, but academia didn’t seem to have caught on at all.
This lack of research was all the more shocking as the negotiating process is central to all advanced economies and working democracies. It is the chief alternative to authoritarian diktats and military action aimed at vanquishing your opponents. You can oppress, suppress, or kill you adversaries. Or you can negotiate…
I must stress, however, that I haven’t tried to keep abreast of the academic literature in the meantime, and this is not an attempt at an academic paper. It is more an attempt at a practical guide to the conduct of negotiations which all of us can use as a yardstick to assess the quality of the Brexit negotiation process or even apply in our own daily lives.
Scope
A negotiation can be anything from trying to persuade your three year old that eating ice-cream before dinner really isn’t such a good idea to trying to resolve an armed conflict. I won’t try to create a typology of different forms of negotiation, and will restrict myself here to describing the different phases most negotiations typically go through, not necessarily in chronological order. I will also try to elaborate a few basic principles which can improve the prospects of a negotiation leading to a successful outcome.
A successful outcome I will define as one which the parties to a conflict can live with, or feel is an improvement on the status quo ante. It doesn’t mean that all disagreements have been settled and that further conflicts won’t arise in the future. But hopefully a successful precedent has been set, and the parties to a conflict will be more inclined to try to negotiate their way through conflicts in the future.
That means that by definition each of the parties must feel they got something useful out of the negotiation, that it was a win win. Negotiations where all the parties are trying to win at the expense of their opponents and which threaten to become too much of a win-lose tend to break down.
Nearly all of the principles I will describe have been violated in the Brexit negotiation process at some point or other, chiefly by the UK side, and this explains much of my pessimism about the eventual outcome. So with the Brexit negotiations in mind, I will try to sketch out some of those principles as succinctly as I can. The phases described below are as much logical as chronological, and elements of them may be going on right throughout a negotiation process.
Phase 1: Define the parameters of the negotiation
It is important at the outset to define the parameters of the negotiation – what needs to be achieved? The presenting problem is not always the real problem which needs to be addressed. Different parties may go into a negotiation with differing perceptions of the objectives of the discussion, and wildly differing perceptions of their opponents objectives. It is important to try to agree a broad statement of the scope of the discussion and the processes to be followed.
You must also define who are the principle players in a proposed negotiation, and what their primary aims and objectives are? How will they be represented at the negotiating table? Are all the key players represented? Do their representatives have the power and credibility to speak on behalf of the principle players? Can they deliver on their commitments?
For many years attempts to end the conflict in Northern Ireland got nowhere because the key players were intent on a military “solution” or refused to recognise the legitimacy of the opposing side. “We do not negotiate with terrorists”.
When the military situation reached something of a stalemate it became clear to all sides that a different approach was needed. Although the main political parties of the time had been talking to each other, they couldn’t end the violence without including the Provisional IRA or their political representatives in the room.
Reprehensible as you may find your opponent, you have no choice but to talk and deal with them if they hold one of the keys to achieving your objectives. Negotiating with someone is not a statement that you like or approve of them, although the process can often lead to greatly improved interpersonal relationships.
Ian Paisley and Martin McGuinness, one time Chief of Staff of the IRA gradually became best friends. So much so that they became known as the Chuckle brothers much to the consternation of some of their more hard line partisan supporters.
Phase 2: Preparation and Planning
Build your negotiating team. This will need to include subject experts in all the key area likely to be under discussion. But subject experts are likely to be immersed in their field and focused on it to the exclusion of all else, so keep them in a back room. Most are not good at building relationships or engaging in the horse trading that negotiating inevitably involves. You will however need them to conduct an impact assessment of any concessions you are considering making, and often they can come up with inventive ways of achieving the same objective in a manner which is more attractive or acceptable to your opponents.
Include key players from your own side in your negotiating team. Sometimes you will want to include a particularly intransigent person from your side to play “bad cop” to your “good cop” during the negotiations and ensure you are unlikely to be outflanked by hard-liners on your side. Very few people have the power and privilege of being the sole leader of one party to a negotiation. There is no point in conducting a negotiation if your own side are likely to reject a deal you have negotiated – that would totally undermine your credibility for future negotiations and normally leads to you being deposed as leader! Try to build a consensus amongst your negotiating team as to how to proceed so that everyone “owns” the process.
Prepare an opening negotiating position by defining your key objectives, red lines (things you will not trade) and potential bargaining chips – things that you have that they might want more than you do. Try to do the same for your opponents with all the information you can find. Identify areas of common interest and potential conflict. Envisage what the final agreement might look like, and work backwards from there highlighting the trades that may have to be made to achieve that outcome. Are your opponents likely to regard the concessions you are offering more attractive than the concessions you are demanding from them?
Get as much intelligence on your opponents preparations as you can. Their likely opening demands, red lines, and bargaining chips. Their key players and personalities; their preferred negotiating styles; the constituencies that they will have to appease. What would success look like for them, and how could you make them feel like they got a good deal while actually giving away as little as possible of what really matters to you?
Build support for your opening negotiating position on your own side. Make sure all your own team are on board and singing from the same hymn sheet. Avoid sending conflicting messages to your own supporters and the opposition. Get as many formal endorsements of your opening negotiating position as you can from your own side. Build up their confidence and trust that you understand their concerns and have taken them on board in your negotiating stance.
Conduct a realistic relative power analysis. The less relatively powerful you are, the more skilful you will have to be to achieve an even minimally incrementally improved position. There is no point in aiming for an ideal position if your opponent holds all the cards. Get what you can in return for the cards you do hold. This may disappoint your more unrealistic supporters, but the less relatively powerful you are, the more you probably need the deal!
Phase 3: Manage expectations
This is perhaps the most difficult balancing act to perform. On the one hand you are trying to convince your opponents that you hold a lot of cards and are going to go into the negotiations with a very hard line – and have lots of hard line “supporters” to appease – and on the other hand if you allow your supporters to develop totally unrealistic expectations, it is going to be very difficult to sell the final deal to them afterwards.
So the negotiations process is perhaps best seen as a gradual process of aligning your supporters expectations with those of your opponents by gradually reducing the expectations of total victory dearly held by both. This is perhaps the least popularly understood part of the negotiation process. Many people are inclined to ask – why don’t they just sit around the table and sort things out? There must be some incompetence, skulduggery or bad faith about if they can’t just do this.
But the reality is that a negotiation is only required in the first place because there are objectively differing interests, objectives and needs on both sides. Agreement is not possible until these are more or less aligned to the point at which both sides can live with the deal. If the initial positions are far apart, this can a long, slow and painful process.
The negotiation process is actually a process of changing people’s attitudes, perceptions, expectations, and felt needs. Changing these takes time, effort and a great deal of emotional energy. There are no short cuts, but there are a lot of things which can help.
Phase 4: Build relationships
Having built your own negotiating team and established roles and working relationships within it, you need to develop a working relationship with your opponent’s team. If there is a long history of conflict, and particularly if this involves violence or the oppression of one side by the other, this, too can be a long, painful and slow process. You may not like some or all of their team, but you don’t get to pick and choose.
This process is often described as Form, Storm, Norm, Perform. If the conflict has been long and bitter most of the early part of the discussions will probably consist of people venting their anger and making speeches about how great the injustices of the past have been. This may be an important part of them establishing their leadership of their team and ensuring that everyone has faith in their ability to articulate their grievances. You may have to do some of this yourself to establish your bona fides with your own side.
There is no point in trying to resolve problems or make concessions at this stage. They will be dismissed out of hand as insufficient to address the magnitude of the problem. You have to be patient until the prevailing mood shifts from anger to solution seeking. When everyone has had their say and chance to vent their feelings things usually settle down to a point where more constructive discussions can take place. This can take several meetings.
Start by trying to agree some basic ground rules and processes by which everyone is prepared to proceed. This can include an agenda, list of priorities to be addressed, a timetable for discussions, agreements on confidentiality and joint public communications. Try to capture and contain as much of the venting as possible within the process – “what’s said in the room, stays in the room”.
Remember that people “pissing in the room” is an advance on them pissing all over the place… Joint public communications are often banal and bland at this stage – “Constructive discussions.” “helpful interventions,” “positive engagements,” – aimed creating a sense of shared endeavour and building public confidence in the process rather than reflecting what really happened in the room. There may be a great deal of antipathy between rival supporters. These public communications are the beginning of the process of de-escalating the conflict and encouraging them to engage more constructively with the issues rather than trying to beat each other over the head.
Once substantive discussions begin, the first step is to Respect and listen carefully to your opponents. It may turn out that what they are looking for is not quite what you were expecting. Every nuance is important, and may reveal a promising line of discussion that could potentially resolve a particular issue. Most people are so focussed on their own demands they forget to listen carefully to what their opponents are saying.
Establish trust, confidence and credibility. It helps if you don’t say anything subsequently found to be untrue or inaccurate. But trust in a negotiating context isn’t just about personal honesty or probity. The opposition need to know that you can actually deliver on what you are promising. Are you the main player on your side or should they really be talking to someone else?
Look for a few small quick wins and “low hanging fruit” – stuff you can all agree on at the outset without too much difficulty. Getting a few agreements in place early helps to build confidence that you are dealing with people who are reasonable and whom you can work with when the going gets tougher and the more contentious items need to be tackled. Sometimes such “confidence building measures” are also helpful in defusing a febrile atmosphere among rival support groups and maintain their confidence in the negotiating process.
Of course the over-riding principle is “nothing is agreed until everything is agreed”. You can always walk back previous provisional agreements if you feel your opponents are being unreasonable on everything else. But try to avoid doing so publicly. You create an impression of untrustworthiness if you seem to be continually changing your mind.
Key to building trust is keeping confidences confidential . If your opponent indicates to you privately that s/he may be prepared to make a certain concession on an issue dear to your heart – and you blab about it in public – s/he may never make such a concession again. S/he may not have cleared it with his/her boss, or done the necessary preparatory groundwork with his/her own team.
Most skilled negotiators cultivate trusted back-channels where they float proposals in order to gauge reaction. No face is lost if the proposal is turned down flat. Formal negotiating sessions are often only the tip of the iceberg. The real negotiations have already taken place privately between a small group of key players and the deal has already been done before it us ever formally discussed.
Phase 5: The bargaining process
Usually it is possible to achieve agreement on most topics without too much difficulty. The technical experts – often working in sub-groups – have been able to come up with solutions acceptable to all. Existing law or treaty obligations may severely curtail the scope of what is possible in any case. Gradually a working document or draft agreement is built up. Disputed wordings are kept in [brackets] for final resolution later.
The most difficult topics or chapters are left till last. These are the areas where no obvious technical solution is possible. Only the Principals of each team have the authority to knock heads together and suggest major concessions. Often a concession is made in return for a different concession on an entirely unrelated topic. A practice known colloquially as horse trading.
This can really upset the members of your team most concerned with the item you have just traded away. Prepare the ground with them beforehand stressing the overall benefits of the concession you got in return. But you also have to maintain discipline in your team. If they start briefing against you or the concession you have just made you may have no option but to give them a stark warning or even dismiss them from the team. This is a last resort: once they are outside the team they are free to agitate against the whole process and greatly undermine your authority to negotiate at all.
Often the negotiations stall or break down at this point. Sometimes the negotiating teams just need to take a break, catch their breath, and reassess their options. However sometimes one team may not have the authority to make a concession the other is demanding – even if they wanted to. It is outside the negotiating brief they were given at the start of the process.
At this stage the negotiating teams have to refer the problem “upstairs” to their sponsoring organisation. It is important that any negotiation process has an escalation mechanism which can break such a deadlock. There is a reason why Prime Ministers or Presidents are usually not directly involved. They are the final court of appeal if the process breaks down and there is no margin of error once it gets to that stage.
Presidents and Prime Ministers often have big egos and are more used to commanding than negotiating. They may also need a scapegoat if difficult concessions have to be made or the negotiations break down. It is the negotiators lot to be that scapegoat if the political need arises. It is therefore imperative that the negotiating teams have already agreed a deal privately and are only referring it upstairs for ratification because the agreement includes concessions beyond their authority to make. At least then you are offering your boss a solution as well as a difficult problem.
Much is made of the rituals of the negotiating process: the fiery speeches, the fists thumped on tables, the angry walk-outs, the all night sessions, the never ending missed deadlines. Sometimes these are required to persuade the partisans on both sides that a very hard bargain has been struck and that there was simply no alternative at this late stage in the process. Remember that your opponent’s partisan speech may be directed at his/her supporters, not yours.
The behind the scenes process is often much more prosaic: Dry subject experts and lawyers finding words to square the circle crafting fudges which can be unpicked later. The main thing is to get some kind of a deal through the works, or else a lot of work and political capital has been expended on a failed endeavour. Nobody – except the wreckers who never wanted to negotiate in the first place – can be a winner in that scenario.
Phase 6: Closing the deal
Negotiating can be a very frustrating process, especially when your opponent proves to be impervious to the superior logic of your position. People can get angry and emotional and very unreceptive to new ideas. But sometimes their stubbornness can be quite deliberate. You may have missed a signal that they are waiting on a concession somewhere completely different before they are ready to consider your wonderful proposal.
Timing is often critical. An idea thrown out at the wrong time can be shot down in flames if your opponent is busy venting rather than solution seeking. It then becomes very difficult for them to consider it afterwards without having to admit they were wrong to dismiss it the first time around. Most people find it difficult to admit they made a mistake.
Good negotiators therefore need a lot of emotional intelligence to gauge the right time to float a proposal – often after a previous proposal has been comprehensively debunked and everyone is casting around for a more viable option. Humour is often the best remedy for strained relations, but it too can be misjudged or mistimed. If you are going to make a joke try and ensure that it is at your own expense and not some barbed put down of your opponent. S/he may never forgive you for undermining their authority even if that was not your intention. Sometimes there is no option but to prevaricate and delay until everyone knows they have run out of time and it is time to “shit or burst”.
Sometimes the only way to maintain some kind of a veneer of success is to remove all the offending chapters – the ones that can’t be agreed – from the scope of the deal and run with only those chapters which can. This may, of course, only be storing up problems for later, but sometimes you have to take drastic measures to get any kind of deal across the line. An incremental deal can move the conflict resolution process forward whereas a complete failure can knock the process back for years.
As a last resort you also have to prepare for the possibility of complete failure – the implications of which may be enough to get at least a partial deal across the line. But there is no guarantee that the negotiating parties will ever get an opportunity to negotiate another deal later. So most negotiators will strain every muscle to get the job done – including frantic phone calls to see if another concession might close the deal. Failure often amplifies pre-exiting tensions and can make a bad situation much worse. Sometimes it is preferable to keep even deadlocked negotiations on life-support rather than let the war mongers on both sides take the initiative.
But it is remarkable how many negotiations actually succeed even if the final outcome is very different to what both parties expected at the start of the process. When done well the group dynamic of two sets of negotiators working together in a room takes over and often surprising solutions to the most intractable problems are found. Negotiators learn to understand and respect each other and sometimes become lifelong friends.
Phase 7: Last Minute Brinkmanship
The last minute Brinkmanship phase of the negotiating process is when the negotiations come up against some hard, non-negotiable dead-line and the parties are still far apart on certain issues even if disagreement on others is largely formal pending an already signalled quid pro quo swap as the deadline approaches. The subject matter experts are working away in the back-rooms agreeing circumlocutory passages which take the sting out of the minor compromises both sides are having to make.
But at least one intractable issue of Principle remains. Let’s say, in this instance, it is the question of a customs border “in the Irish sea” which effectively keeps N. Ireland in the Customs Union and Single Market. For the DUP this is an issue of principle, as having customs controls on trade with Britain could be seen as one step towards a United Ireland. It would be an historic defeat for their absolutist “N. Ireland is British” position even though the UK is formally entitled The United Kingdom of Great Britain AND N. Ireland. Their active pro-Brexit campaign -including using dark money received from murky sources – will be seen to have backfired spectacularly.
For the Tories, it is critical to keep their fragile coalition and working Commons majority together. If they lose a Commons vote on such a critical issue as the Brexit agreement, a general election will be unavoidable and who knows where that would lead? Neither Remainers nor Leavers are happy with the deal and Corbyn could well win by promising a referendum on any deal in order to unite his own party. May would face a leadership contest for having so obviously betrayed a fellow Unionist party.
Ireland and the EU would point out in vain that such a border might not be required in any case could other “technological” means be found to address the problem of collecting tariffs and policing regulatory divergences. Some divergences between GB and NI already exist in the case of agricultural products and their are wide divergences on legislation on social issues. Customs controls do not imply any change in Sovereignty and a large majority of N. Ireland citizens voted to remain in the EU in any case.
So what gives? Ireland could agree to postpone resolution of the issue until the Transition phase of the Brexit agreement as customs controls will not be required during that phase in any case. But what leverage would Ireland have then if a post Brexit EU/UK FTA is still far from agreed? The DUP’s position would be unchanged, but would they still hold the balance of power, and who would be in government and in the Prime Minister job at that stage? Jeremy Corbyn wouldn’t care as he supports a United Ireland in any case.
So who needs a deal more? The Brexiteers make great play about being content with “WTO rules” of trade and of favouring a “clean break” no deal Brexit without further entanglement with Brussels regulation. Is this just bravado to stiffen the resolve of the UK negotiating team? It also allows them to retain the high ground if some deal is agreed and Brexit turns out to be a disaster. “We told you so” would be the refrain if subsequent negotiations (during the Transition phase) get nowhere.
But the reality of what a no deal Brexit might mean – food, medicine, and air transport shortages – is slowly seeming through the body politic and into the populace at large. Appeals to “keep calm and carry on” are sounding more frantic by the day. The Barnier led EU negotiating team could be forgiven for biding their time and letting the onrushing reality of a train wreck Brexit do it’s work of concentrating the hearts and minds of UK negotiators wonderfully. This one could go down to the wire, to be resolved only in the last minute brinkmanship zone of the negotiations when the prospect of complete failure is staring everyone in the face.
Once again the A. 50 negotiating process has created an asymmetrical negotiating space. The closer we get to the hard deadline (which may be much closer to March 2019 than the EU officially concedes) the more pressure will come on the UK side to salvage what they can. The hard line Brexiteers and hard line Remainers will never be appeased, but is there enough space in the middle to squeeze through any kind of deal? A lot depends on the political negotiating and selling skills of the main protagonists, and the signs to date have not been promising.
The Irish Government, too, could lose its nerve as a no deal Brexit approaches. That is why it has been seeking constant assurances from the EU that a hard border will not be imposed under any circumstances. Brexit of any kind will be very damaging to the Irish economy, and particularly to the politically vital rural base of the Fine Gael and Fianna Fail ruling parties. The question is will the Government be blamed for a no-deal outcome or will the electorate concede that some things were simply outside the Irish government’s control?
As the prospect of complete failure looms the blame games will begin and there will be no shortage of blame to go around. The calibre of your negotiating team and their ability to hold their nerve, may be crucial in determining the outcome. There is an unavoidably human element to the negotiating process which we should celebrate rather than decry.
Phase 8: Selling the deal
If the deal is very different to what one or other or both parties expected at the start of the process there is bound to be a lot of anger and disappointment amongst the effected partisans. There may even be accusations of betrayal and threats not to ratify the deal. Good negotiators will have gradually moderated expectations as the process was proceeding so that the surprise at the final outcome is not too great.
Great emphasis will be placed on the benefits of the deal and the fact that the alternative of no deal was very much worse. Many will have forgotten that their expectations at the start of the process were very very different. If the negotiators have managed to retain public confidence their protestations that this was the best deal possible will be accepted by all but the most committed partisans.
However if the Principals – the Presidents and Prime Ministers – don’t get fully behind the deal and endorse it forcefully it could all be for nought. If one side or other doesn’t ratify or fully implement the deal all trust will be lost and further negotiations will seem pointless.
Just as a negotiation is a process of bringing two or more sides slowly together, a complete breakdown can result in both sides moving moving ever further apart with vitriolic recriminations and accusations of bad faith setting the tone for an ever more difficult relationship. Group pride on both sides comes into play and blame games proliferate. Success has a hundred fathers but defeat is an orphan. The negotiators are scape-goated and the process discredited. There is no reason why things have to get worse before they can get better, and no guarantee that they will ever get better again.
Lessons for the Brexit negotiations.
Looking at the Brexit negotiations, it is obvious that the above guidelines have been broken in many instances, especially by the UK side. A.50 was triggered before an opening negotiation position was agreed or even any clear objectives had been established.
Theresa May could have threatened not to trigger A.50 unless and until all her cabinet had signed up to a clear and comprehensive negotiating brief. Instead disagreements were allowed to fester indefinitely.
There has been a complete failure on the UK side to appreciate the relative power dynamics at play and to listen to what the other side is saying. The composition of the negotiating team has continually changed as experienced and knowledgeable people were sacked or resigned in protest.
David Davis spent a total of four hours in negotiations all year and seemed unable to grasp the complexity of the issues at stake. So much for relationship building.
Boris Johnson is probably one of the most despised and ridiculed men on the continent, and his repeated claims that the negotiations were going to be easy and that they could have their cake and eat it could not have been more damaging to the UK cause. If negotiations are also about reaching out to the other side and developing a sense of shared endeavour, he is not the guy for the job.
His successor, Jeremy Hunt’s claim that it is EU inflexibility that has held up the talks could not have been more undermining of his own credibility when the UK Government has yet to agree a clear and unified opening negotiating position.
EU negotiators have been left to craft their own draft agreement with their own opening negotiating positions barely challenged. With 27 different governments to work for there could have been ample opportunities for the UK side to probe for disunity or incoherence on the EU side, and yet the real negotiations have barely begun. Do the UK side even know what the EU’s real red lines and bargaining chips are? Have EU negotiators had to reach for their fall back proposals?
And all of this is against the backdrop of a ticking clock whereby the UK’s negotiating leverage shrinks ever further as the dead-line approaches. It is the UK which should have been driving the negotiations along with clear objectives and a strategy to get at least a weighted majority of the Council on board.
Now, as the deadline approaches, any extension would require unanimity on the council which may not be forthcoming unless the individual priorities and grievances of all 27 member countries are addressed. Good luck with that.
No doubt we may yet see dramatic walk-outs and breakdowns and attempts to pretend that a serious negotiation is taking place. The problem is that the UK side has lost so much credibility that the reaction of the EU side may well be a Gallic shrug of indifference.
Theresa May may well try to play her trump card: “give me what I want or you will have to deal with Boris Johnson or Jeremy Corbyn”. I don’t think the EU side would care very much any more, because there is no point in dealing with a Prime Minster who cannot be trusted to deliver on her side of the deal. Failing to do a deal with Boris Johnson or Jeremy Corbyn would hardly lose EU leaders much political capital at home.
All of these issues arise from the reality of a deeply divided country, parliament, government, and negotiating team. If the UK cannot get it’s act together now, there is little anyone else can do to help it. There is almost no incentive for the EU to make significant concessions now, and every incentive just to wait it out until March 29th. mercifully arrives.
The UK will be given a more or less take it or leave it offer in the autumn addressing only the bare minimum of the issues which need to be settled from an EU point of view. Questions around the future relationship will be fudged to be addressed during the transition period when the UK will be negotiating as a third party.
The final deal will involve a Canada type FTA plus a requirement that N. Ireland remain within the Single Market and Customs Union. It is simply not the EU’s problem if the DUP doesn’t like it. It is a minority party in N. Ireland supporting a minority pro-Brexit policy and has been unable to form a government or uphold its responsibilities under the Good Friday Agreement.
And then the world will move on.
