Brussels, Belgium. 21st Nov 2018. Meeting between Prime Minister of the United Kingdom Theresa May and European Commission President Jean-Claude Juncker at the EU Commission headquarters

Mediation, at its simplest, is ‘Third Party facilitated’ negotiation and a crucial part of the role of a mediator is active attention to the nuances of negotiation.

Adjudication may be the best way of sorting out two-party disputes that involve a clean break, require the clarity of precedent, and can be reduced to a financial payment. But disputes are more complex. Litigating companies, even if they no longer trade together, are concerned with reputational risk. Divorcing couples, although no longer partners, remain related as parents.

It is not only the loser in court adjudication who may feel aggrieved. Often those winning the case may only recover a fraction of their legal costs. The emotional costs of broken relationships, loss of good will and reputational risks, leave many winners bitterly regretting their ‘day in court.’ Cases involving multi-party disputes are particularly problematic for the adversarial process of court adjudication.

Urry and Fisher’s ‘Getting to Yes’ is a good starting point for developing some of the skills of effective negotiation. Theresa May might have benefited from a quick skim before heading off to Brussels for Brexit negotiations. ‘Anchoring’ is important in any negotiation. Unless there is a deep asymmetry of information, the party that makes the first move is often at an advantage in determining the Zone of Potential Agreement – the area within which decisions are made. By refusing to set out her stall and inviting EU negotiators to set out their vision for a future relationship, she lost the initiative in the early stages of negotiation.

Crucial in any negotiation is not just your BATNA or Best Alternative to a Negotiated Agreement but your WATNA or Worst Alternative to a Negotiated Agreement – the nightmare scenario that you don’t want to occur if negotiation fails. A good alternative to a negotiated agreement strengthens your arm and leads to better settlements. When negotiating over sovereign debt with the European Central Bank in 2015, the Syriza Greek government had no better alternative than a moral plea to the European Bank. It suffered the consequences of unparalleled austerity. Had it instead declared that if negotiation failed it would withdraw from the Euro and create its own currency and the printing presses were ready to roll, it might have strengthened its position. The UK’s BATNA of a crashing out of the EU with a ‘no deal’ scenario confused the two. The potential damage to the UK was always going to be greater than the damage to an integrated economy of billions of Euros. Any threat needs to be credible and less damaging to your self than your negotiating partner. Employing a company that didn’t own a boat to transport essential supplies across the Channel risked derision.

Parties in effective negotiations will have a number of distinct positions in their mind: their ‘ideal outcome’ often an opening position, ‘what they reasonably hope to achieve’ and their ‘bottom line’ – the point at which they will cut their losses and walk away from the table. The essence of effective negotiation is not to reveal that bottom line. A danger in the ‘negotiation dance’ in which both sides adopt positions seeking to push each other to their bottom line is to paint your self into a corner giving no room for a graceful turn. By setting out impossible ‘red lines’ early in a negotiation to which the EU could not accede, Theresa May was left without her dancing shoes.

Timing is of the essence in any negotiation – whom is the clock running against? William of Orange was a master of the technique. When in 1688, the Catholic James II became increasingly unpopular, a clique of powerful political leaders (the ‘immortal seven’) sought to replace him with a Protestant monarch. They sent a delegation to talk to William (James cousin) and his wife Mary (James half sister) in Holland. Mary had the closer hereditary right and it was unclear what William’s role would be. Rather than staking a claim, he asserted that the priority was replacing the tyranny and the nature of his role could wait. Was he to be Prince Consort, Regent or King only in his wife’s life was a secondary issue. William and Mary landed in Brixton with 250 ships and allowed James II to escape to France. It was only when James had been deposed and the throne vacant that William staked his claim to Kingship or nothing, declaring he would return to the Netherlands with his wife if he was refused. By that time the leaders realised that if the rebellion failed they would be left without a monarch and potentially guilty of treason if James returned. They acceded to William’s demands and he became Joint King with Mary.

The present UK government has been rather less effective in their use of timing. Until the UK triggered Article 50, it remained at the table in EU decision-making with a strategic say over its future direction. There were dangers to both UK and EU of political instability but there was also a balance of risk. Once Britain triggered Article 50 leading to automatic exit in 2 years, the clock was running against it. According to the Lisbon Treaty, Britain could not negotiate a new Custom’s arrangement until it had left the EU and if a deal could not be agreed Britain would be left without a framework for huge areas of legal policy including patents and civil aviation. With the expiry of time on 29 March, no legislation in place for crucial areas of the economy and Parliament having ruled out a ‘no-deal’ scenario, the Government had no alternative but to beg for an extension.

Brexit represents one of the most complex and intractable political conundrums of the last 50 years. Polarised opinion makes compromise appear to be betrayal to those on both sides of a divide. As David Runciman questions: ‘Are we stuck because we are so divided or so divided because we are stuck.

While mediation may not provide a quick fix or antidote to a political problem of this scale, the core skills of negotiation are as relevant to multi-party as binary disputes. The alternative dispute resolution (ADR) values of empathy, reason and dialogue are as relevant to multi-party political negotiations such as the political divorce, taking place in the shadow of elections, as the kind of fraught marital ‘divorce’ that takes place in the ‘shadow of the court’.

  • Michael Bartlet teaches Alternative Dispute Resolution and Public Law at SOAS University of London. He is the convenor of ADR modules that include lectures both on ‘negotiation’ and ‘ADR in a political context’.

 

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