dougnoll’s posthaven

Negotiation is a skill that must be learned. Most people never get beyond the simple quid pro exchange of essentially, "I'll scratch your back if you scratch mine." However, sophisticated negotiation requires much more than simple exchange. A lot of people forsake negotiation training. I think this is due to a number of myths around negotiators.

So, let's look at these myths and dispel them.

The first myth is that negotiation is only about the money. Sometimes negotiation is about the money, but many times negotiation is about anything but the money. In fact, the money simply becomes a symbol for much deeper underlying needs and issues that must be resolved.

Another myth around mediation says that negotiation means getting the best deal for me or my client. Often times, the best outcome is not going to be the best deal for me or my client. It can be making sure that everybody gets a good deal out of negotiation. Sure, there are times when negotiation can become very competitive. However great negotiators find that if they can make a deal that satisfies everybody as reasonably as possible, then they really done a great job. Negotiators that are purely selfish find that they reach impasse and suboptimal deals quite frequently.

The third myth is that negotiation is simple, or the opposite, that negotiation is hard. Actually negotiation is not a simple nor is it hard. There is a lot to understand about the theory and practice of negotiation, but it is not a simple process of simply exchanging dollar numbers in a distributive auction.Nor is it an arcane, difficult to understand, highly sophisticated practice that only experienced negotiators can successfully engage in.

There is also a myth that negotiation follows a predictable pathway and that only simple steps need to be followed. The truth is that negotiation is not always a predictable path. It is true that in some broad frameworks of distributive negotiation certain steps follow one after another. However, learning how to negotiate by formula or recipe will lead to disaster. As you study negotiation, you earn about the nuances of negotiation practice and understand that it is not a linear process at all. It is iterative, elicitive, and reflective.

Some people are thought to be born negotiators. Think about this one a moment. Even used-car salesman have to go through extensive training to learn how to sell cars. So negotiators are not born, they are made. The good news is that you do not have to wait 20 or 30 years to become a masterful negotiator.

Another myth is that wicked and evil people make better negotiators.
Actually, if you look around the Middle East in the last two years, you can see that leaders like Sadaam Hussein, Moammar Ghaddaffi, and Hosni Mubarak who have committed crimes against humanity turned out to be very poor negotiators. Most people mistake the fact that people in a position of power may often appear to have a better BATNA. BATNA means "best alternative to a negotiated agreement." 

Some people believe that negotiation is a failure if you do not gain anything at the end of the day. Well, if you are a defense lawyer, you will never gain anything in negotiation. Often times a good negotiation outcome is defined by how risk is managed by the parties and their lawyers.

In addition, there are many negotiations where there is no gain, but there is a restoration of relationship a rebalancing of power, a reconciliation of injustice, and a righting of moral wrongs.

Knowing about these myths can help you overcome the idea that sophisticated negotiation is a skill to be learned and mastered, not an arcane art left only to the very experienced professional.

Remember, the best way to win the game is to call it yourself.
Better still, change the game completely.

Douglas E. Noll, J.D., M.A.
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
for Pro Bono Service
Creator of Negotiation Mastery for the Legal Pro –
A new online course in cutting-edge legal negotiation
legalpronegotiator.com

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In a past blog, I predicted the failure of Kofi Anan's mediation efforts. This was no magical feat on my part. Anyone with an once of experience in mediation could see that Mr. Anan was the wrong person at the wrong time with the wrong skills for the job. While he is a famous international diplomat, he is not and never has been a trained, professional mediator. That became apparent as he violated mediation principle after principle during his tenure. His resignation, accompanied by a public statement excoriating the international community, was more of a reflection of how he misread and misunderstood the conflict than about the political will of the UN Security Council.

What now? Clearly, a negotiated peace between the Assad regime and the opposition forces is unlikely. Iran and Russia have publicly supported the Assad regime and cannot gracefully retreat without significant loss of international prestige. For the Iranians, in particular, that is unacceptable. Thus, the conflict will have to play out to the end with Bashar al Assad being deposed or running for asylum. His mindset is unfortunately locked into a belief structure that will not allow him to see reality. Hence, he is as likely to be killed in office as to retire from it.

If anyone is thinking in the international community, they should be planning on how to prevent all out chaos and anarchy in Syria post-Assad. With the removal of the Alawites from power, there will a vacuum crying to be filled. A host of interests are eager to rush in, including Shiite fundamentalists, Sunni fundamentalists, al Queda-affiliated forces, and the Muslim Brotherhood. The Syrian people are not experienced in the tug and pull of democracy, do not have a strong civil society, and do not have foundational institutions to allow for a free society. These all have to be built from scratch. At the same time, the bureaucracy has to remain functional to provide basic services. Hopefully, the world learned that lesson from Iraq and Libya.

If mediators can assist at all, they will work on the inevitable conflicts arising in the opposition forces and help the various factions form political coalitions that approach independent self-determination.  This is messy, difficult work. Once the common enemy, Bashar al Assad, is gone, the glue holding together the opposition will melt away. Finding common purpose in a peaceful, nonviolent transition to an appropriate form of government will be very challenging. It will take courageous, visionary Syrian leadership to guide the people.

In addition, the internal factions will face the prospect of dealing with outside spoilers. Those spoilers could include Russia and Iran, looking to maintain and perhaps strengthen their influence in the new Syria. The US and European powers could also be spoilers if they see disadvantage to a truly independent, self-determinative Syria. The Kurds are also a wild card, and may negate Turkey's potentially positive influence on the Syrian outcome. The only way the outside power players can be thwarted is if the Syrian factions unite against outside interference. This poses a classic Prisoner's Dilemma situation for the Syrian factions as the decision to defect from cooperation with other factions may appear more attractive than agreeing to cooperate and facing the possibility of exploitation. Again, mediators might be able to facilitate the decision making process towards cooperation and away from self-interested choices that will ultimately defeat a peaceful Syria.

The experiences in the Middle East over the past 10 years should inform us all that classic international power politics is more likely to generate war than peace. The international powers certainly are not oriented to stability. Instead, they continue to joust for influence by thwarting each other's ambitions and interests. Thus, if the Syrian people want peace and self-determination they will need the discipline to turn away from the power inducements of the west or of Russia and Iran. They will have to turn inward and solve their own problems in their own way. They can do this with the help of skilled mediators. Time will tell if that is the path they choose.

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As a professional mediator, I am always encouraged by the use of mediation to resolve international conflicts. However, in the case of Syria, I have little confidence that mediation will bring peace to the conflict. Very few of the essential elements for successful mediation are present in this conflict.

The first consideration in convening any mediation is deciding who the parties at the table will be. In this case, the current Syrian government will certainly be a party. However, there does not appear to be a credible spokesperson for the rebels. One of the reasons that international support has not coalesced in support of the rebels like it did in Libya is because the rebels have not proven themselves capable of creating a coherent political force. Since mediation is about decision-making, we have to ask the question: "Who has the power to make binding decisions for the parties?" Obviously, the Syrian government can make decisions. Who, in the rebel group, can make binding decisions for the people that oppose the al Assad regime?

The Syrian National Council claims authority for the resistance against the al Assad regime. Burhan Galioun, a professor of political sociology at the Universite de Paris III Sorbonne University, was appointed as head of the SNC on August 29, 2011. However, Professor Galioun has made statements that are not universally shared by the various rebel factions. It is unlikely that either he or the Syrian National Council speaks for all factions.

One of the issues that plagues peaceful resolution of internal conflicts and civil wars is decision-making authority. It's one thing to mediate a dispute in a contested presidential election, when the disputants are easily recognized as political opponents. It's another thing altogether to mediate the dispute the between a fractious rebel group and an antagonistic government. The al Assad regime can rightfully ask by what authority to the representatives of the rebels come to the table? Any mediator taking on the Syrian problem will spend a considerable amount of time answering that question, and the entire enterprise will collapse if it is not answered thoroughly.

A related issue has to do with legitimizing the antagonists. In the 1970s, the protracted negotiations over the shapes of the tables and who would sit where in the US North Vietnam talks was about legitimizing primary parties at the table. In Syria’s case, the al Assad regime could protest participation of rebel representatives because allowing participation would confer unwanted legitimacy. At the outset, the mediator will have to be prepared to deal with challenges to legitimate participation by primary parties.

The people of Syria have the most at stake in any mediated talks. The mediator will have to consider how to make sure that the legitimate concerns of the people, which will include social and distributive injustices, political inclusion, economic reform, safety from violence and social stability. In this regard, the mediator may consider finding civil society representatives, including women, to participate as direct and primary participants. The mediator will have to secure the consent of the rebel representatives and the government representatives to share decision-making power with civil society representatives who otherwise would not have a voice in the process.

In addition to primary parties, mediation involves secondary parties. In the case of Syria, the secondary parties are numerous. They include Hamas, Iran, Russia and China, the US, Israel, and the EU, the Arab League, the UN, the Muslim Brotherhood, Sunni Arab nations such as Saudi Arabia, and other conservative Islamic groups. All of these parties have vested and conflicting interests in the outcome of the Syrian conflict. All of these parties wish to influence the outcome to benefit their particular interests. They will be seeking direct participation at the table. If they are denied participation of the table, they will seek to influence the process in other ways, including as spoilers. The mediator will have to design a process that provides for secondary party participation and inclusion, but does not permit undue interference in the direct talks between the primary parties.

Assuming that agreements can be reached upon who will participate in the process, the mediator will be confronted with what is to be mediated. The superficial answer will be to mediate a political solution to the violence. However, that is grossly insufficient to bring about a lasting peace. As we have seen in Kenya, the superficial political solution has led to continued gross economic and social injustice, continued tribal conflict, and the essential shutdown of an effective government. The Sentinel Project observes that Kenya is ripe for genocide. (http://thesentinelproject.org/wp-content/uploads/Risk-Assessment-Kenya-2011.pdf). I believe this is a direct result of the failure of the mediator to force Odinga and Kibaki to address serious structural injustices instead choosing to seek superficial political solutions through an ineffective and unworkable power-sharing arrangement.

The same problem exists in Syria, except that it is worse. Rather than mediating a contested presidential election, the mediator will have to end a civil war and deal with generations of abuse, injustice, and human rights violations. Burhan Ghalioun, the appointed head of the Syrian National Council, is skeptical of dialogue with the al Assad regime. “The regime is not interested in or willing to meet the requirements of a meaningful dialogue,” Ghalioun wrote. The opposition cannot join dialogue with “officials who contributed to or ordered the killing of defenseless children, women, and young people.” He has said that dialogue would be fruitless unless the clear objective was “to dismantle the regime of repression, oppression, and tyranny and replace it with a democratic order in which the people alone have the final say and the government is fully empowered and answerable to elected representatives of the people.”

Ghalioun believes that “dialogue should not mean a deal with the regime. It must not be about broadening the circle of participation” to members of the authorities; rather “it must be about a timetable for a transition to democracy by peaceful means, in the hope of avoiding more human casualties and material losses, and creating the necessary conditions for new institutions to be built and function properly.” To Ghalioun, the government leaders “lost their legitimacy” when they unleashed bloody violence against peaceful protesters.

From these statements, it is clear that if the mediator seeks a superficial political solution through power-sharing, without forcing the parties to confront the centuries old conflicts between the Alawites, the Sunnis, and the Syrian minorities, the mediation will make the situation worse, not better.

Thus, the mediator will be well advised to discuss what is to be mediated and to explore the potential range of outcomes that will be satisfactory to all of the participants. This exploration by itself will be time-consuming and exhausting as it will consist of a negotiation over what is to be negotiated. However, that is the work of the mediator and is to be anticipated and planned for.

Finally, does the mediator have the staying power that the Syrian mediation will require? In the Kenyan election crisis, the mediator abandoned the mediation process after six weeks and turned it over to another mediator who abandoned the process six weeks after that. There was no long-term plan for engagement and no plan for helping the parties resolve ongoing differences and conflicts. Will the mediator in the Syrian conflict be committed to the years it may take to bring peace to Syria? This is not a six week or six-month engagement. The intractability of the dispute and the ongoing violence suggests that a mediated negotiation might last for years. Even then, success will be problematic.

International conflict mediation has not been typified by exemplary mediation practice. Instead, most international conflict mediations have been ad hoc affairs conducted by diplomats and political envoys with little or no experience in decision making theory, conflict theory, neuro social psychology, behavioral economics, and a host of other disciplines that modern mediators study and practice. The Syrian conflict will call upon the deepest skills and reserves of the very best mediator. Even then, a peaceful resolution is improbable. I hope that the mediator considers some of these issues before he starts his work.

 

 

Douglas E. Noll is author of the award-winning book Elusive Peace: How Modern Diplomatic Strategies Could Better Resolve World Conflicts (Prometheus Books 2011). He may reached through the book website, www.elusivepeace.com.