Fighting has the edge over negotiation as the first inclination of most people when faced with conflict. Our human brain chemistry lubricates the preference for warfare and the use of force, while negotiation, by contrast, requires a willed, determined and conscious effort. While there is little doubt that the latter mode of conflict management generally makes more sense, and may even be an essential skill set given the complexity of the issues we face as a species, negotiation remains largely underutilized and is not even widely taught or practiced outside of a narrow range of academic programs and dispute contexts.
In addition to neuro-biological priming, there often is also a long-standing and continuing deep-seated cultural resistance to negotiation, whether the controversy in question is geo-political, the allocation of scarce resources, the approach to sustainable development or environmental management, or a more mundane business, workplace or personal matter. Negotiation and, by extension, its first cousin mediation, do not spring to mind as the first considered alternatives. A good measure of this resistance is because the practice of negotiation remains haphazard and is often misunderstood and mischaracterized, even by practitioners.
Negotiation is most indicated in complex matters where the circumstances are most confused and ambiguous. This is where the simple answer is particularly alluring and often conceals the most diabolical unintended consequence. Negotiation is disliked just because it obligates the recognition that many issues are more complex than people would like to think and that there are no simple solutions, only options that sometimes range from bad to worse. Not surprisingly, any outcome negotiated is susceptible to second guessing and a negotiated agreement is frequently considered little more than a compromise of principle, “selling out,” or an outright appeasement. The more difficult the matter, the less likely the process is likely to result in the elegant “win-win,” non zero-sum game, many envision. Far from gourmet cooking, negotiation is more akin to making sausage.
And, those who negotiate or mediate conflict are not left untainted by the suspicion of the process. While they often like to think of themselves as “peacemakers” and consider their work noble, few others see them that way. They are more likely to be cast ignobly as appeasers, who are weak, and sometimes even immoral and cowardly. (Benjamin, R.D., “Negotiation and Evil (1998),” in The Guerrilla Negotiator, Mediate.com, 2007). Most negotiators through out history, from Talleyrand at the Congress of Vienna to former President Jimmy Carter”s recent involvement in the Israeli Palestinian discussions, have been vilified as much or more than they have been lauded for their efforts to settle conflicts.
Negotiation has garnered an especially ignominious reputation from the likes of Neville Chamberlain, the British Chancellor, who in 1938 negotiated with Hitler”s Third Reich on the eve of World War II an agreement that conceded to Germany the dissolution of Czechoslovakia in an effort to obtain “peace in our time.” Hitler broke the deal and, forever since, Chamberlain has been viewed as a naive dupe and his name used synonymously with appeasement. Most historians have concluded in hindsight, that anyone could have known Hitler could not be trusted. However, many other “scoundrels,” such as Soviet Premier Krushchev, Libyan President Omar Khadaffi, or even, after a fashion, Iraq”s Sadaam Hussein, all originally deemed irrational and untrustworthy, have held to agreements they have negotiated, at least as often as the United States. Arguably, had Hitler upheld the agreement, Neville Chamberlain would now be viewed as a hero of sorts.
The “negotiation as collaborative problem solving” myth
A good measure of the confusion about the real nature of negotiation originates from the practitioners and teachers of the craft. First, our techno-rationalist culture has fostered and encouraged an idealized vision of negotiation as essentially a rationalized “collaborative problem solving process.” If negotiation is thought to be a “search for common ground,” the dispassionate assessment of interest and needs, and analysis of risks and benefits, that leads to an elegant “win/win” agreement, then negotiation is an available option only when all parties involved are deemed to be reasonable actors. From this understanding, some believe negotiation to be little more than “just talking and being nice,” showing empathy, understanding and communication, and negotiation is dismissed out of hand if the other party is deemed to be irrational or “crazy.”
There is no question but that effective negotiation requires a carefully designed strategy that calls upon analytical discipline, but it is important to not allow the process to be reduced to an ineffectual, esoteric activity that cannot be taken out of the hothouse and survive on the mean streets of the real world.
Such a belief is the foundational argument of those supporting the Second War in Iraq. An often cited advocate is Jean Bethke Elshtain, who in her book, Just War Against Terror: The Burden of American Power In a Violent World, (2003), argues on page one that negotiation can only work with reasonable people. Clearly, any disposition toward negotiation has been even more retarded in the shadow of the attack on the World Trade Center and the Pentagon in the United States on September 11th, 2001.
The closeting of negotiation as a viable mode of conflict management in a dangerous, terrorist-infested world leads to the politically popular conventional wisdom that one cannot negotiate with enemies or those who vow to destroy you. This is the ostensible logic of refusing to engage President Ahmadinejad or Iran, who regularly threaten to “wipe Israel off the map.” In fact, the events of 9-11 do not fundamentally change the realities that have been “on the ground” for much of the Twentieth Century, including Soviet Premier Nikita Kruschev pounding his shoe on the table and shouting with reference to the West and the capitalist system, “we will bury you,” in the United Nations in 1960.
Simplistic determinations about when and with whom to negotiate do not work well. Despite the moral ambiguity of negotiating with enemies in general and especially terrorists, the question remains as to how to obtain any real measure of security? Does that come by force, by negotiation or both? Curiously, one who has endured that ambiguity is Shlomo Ben-Ami. As Foreign Minister under Ehud Barak, he was a key participant in years of Israeli-Palestinian peace talks, including the Camp David and Taba talks in 2000 and 2001. In his new book, Scars of War, Wounds of Peace: The Israeli-Arab Tragedy (2006), he suggests that there is a good opportunity for negotiation with the elected Palestinian militant organization Hamas, who denies the existence of Israel. He argues, at once philosophically and pragmatically, that since the founding of the State of Israel, negotiations have necessarily been engaged with such enemies. He sees little purpose served in the “tough stance” of the United States in discouraging such talks, observing that realistic and pragmatic negotiations that are not constrained by ideological labels or preconceived judgments of the motives of opposing parties are ultimately essential to secure, if not peace, a workable cessation of hostility. (www.democracynow.org 2006).
The risks of negotiation ideology
The second source of confusion about negotiation is more problematic because it is the very character trait of those mediators and negotiators who are drawn to the conflict management field that makes them most effective that places them at greatest risk of conceding too much and opening themselves up to the criticism of appeasement. Negotiators are necessarily confident, often verging on overconfidence, in their ability to obtain agreements, even or especially when all realistic assessments of the situation are to the contrary. They also tend to believe in the value and importance of negotiation as a preferred mode of conflict management that is sometimes taken beyond being a mere skill set to become an ideology in itself. That pre-disposition and bias is both a negotiator’s greatest strength and most serious weakness. Even the most sophisticated negotiators and mediators are at risk.
Equal to the study of conflict, analytical acumen, and disciplined technique and skill, most experienced negotiators have discovered that their best work requires a visceral, gut level feel for the surrounding politics and the psyche of the other person. Negotiation cannot be done effectively by formulaic structures in accordance with set theories or ideologies. This is the intuitive aspect that Malcolm Gladwell describes in his book, Blink (2005), and sometimes includes resort to unconventional “crazy wisdom” strategies and techniques. Neither the analytical nor the intuitive is sufficient alone; both must be seamlessly integrated in an approach I term “systematic intuition.” (Benjamin, R.D., The Effective Negotiation and Mediation of Disputes: Applied Theory and Practice and Handbook, 10th ed., Mediate.com, 2007.)
Less proficient negotiators sometimes think their gut instinct is sufficient. Nowhere is that more immediately clear than in considering negotiation with terrorists or other “enemies.” Even the most sophisticated and experienced negotiator can get burned. Being able to sense when, where, how and with whom to negotiate is hard enough, but more often than not, there are any number of “wild cards” — intervening uncontrollable variables that are simply unknowable.
President George W. Bush believed he could “see into Vladamir Putin”s soul” and felt he could “do business with him.” While it is easy to satirize such a naive notion, he is not the first. President Harry Truman said much the same thing about Joseph Stalin — ”I kind of like the little guy” — upon first meeting him. Neville Chamberlain ostensibly had the same sense of Adolf Hitler, as did a good number of Americans — Republicans and Democrats –who were determined to stay out of Europe’s war.
Gut instinct can usefully aid negotiation or stop it in its tracks. That is why it is so risky. Many agreements have been obtained because negotiators had a hunch or a feeling — they picked up on a clue — as to what the other side might need to make the deal work. Sometimes, however, a gut instinct can kill a deal, especially if there is a tendency to let a “bad” feeling about the other party take over. Iran’s Ahmadinejad, Iraq’s former head, Sadaam Hussein, along with many other enemies, have been cast as either irrational, immoral, or terroristic, and unworthy or unable to negotiate. Beyond the geo-political, the same demonizing process goes on in many, if not most, other disputes contexts, be they business or domestic matters. Visceral repulsion against a wrong-doer, be it an errant husband, wife, or corporate executive, drives a primal desire for revenge and obligates the sanction of force, not the reward of a negotiated settlement.
The risk of the enthusiastic negotiator
This discussion is as apparent, relevant and shrill as ever in the current Presidential campaign. John McCain, whether an accurate characterization or not, charges that Barack Obama’s naiveté and inexperience is demonstrated by his “stated” willingness to engage in “unconditional” direct negotiations with the likes of someone as crazy as Ahmadinejad, thereby risking the loss of U.S. credibility and the prospect of appeasement. Obama counters with the use of President John F. Kennedy’s oft cited admonition, that we should “never negotiate out of fear, but never fear to negotiate.” Some suggest that drawing Kennedy into the fray was ill advised.
Kennedy pursued negotiations with Soviet Premier Kruschev early in his administration, and in the view of many, with “disastrous” results. (James, Frank, “Should Obama Rethink JFK-Krushchev?” New York Times, May 22, 2008) Kennedy’s own self assessment was no less harsh as Robert Dallek recounted in his biography of JFK. The President observed the risk of allowing talk for talk’s sake: “He just beat the hell out of me. I’ve got a terrible problem if he thinks I am inexperienced and have no guts.” Some historians assert that the Berlin Wall and the Cuban Missile Crisis were, in part, a result of Krushchev”s belief based on those early meetings that he could push Kennedy around. (Dallek, Robert, An Unfinished Life: John F. Kennedy, 2003)
While the hindsight of history can be helpful, too much can be made of it. Kennedy may have done better than he thought, albeit unintended. In drawing Krushchev into believing he was weak, Kennedy was able to become all the more effective in dealing with the Cuban Missile Crisis later. (Kennedy, Robert F., Thirteen Days, 1967.) There is sometimes value in playing a “rope-a-dope” game. In poker, a player can do well to lose with a good hand early on in order to win with a weak hand later; the appearance of weakness can be turned into a strength. The supposed lessons of history need to be scrutinized carefully; they can be misleading and misapplied, especially if reduced to settled, simplistic axioms for future action. Each circumstance has a unique and fluid set of variables of which historical parallels are useful to be considered, but not taken as determinative.
Starting negotiations with a kick
At the same time, like it or not, being too anxious to talk is often seen as a sign of weakness, regardless of how reasonable it might appear. Further, any suggestions made by the party who has initiated talk are often likely to be viewed suspiciously, discounted, distrusted and subject to reactive devaluation. Sometimes, to give negotiations a good chance of being taken seriously, they should start with swift kick. For example, while not strictly logical, there is a rationality to filing suit first to grab a recalcitrant party’s attention and proving serious intent.
Negotiators and mediators, because of their bias, can tend to show too much enthusiasm for negotiation, making the prospects of a successful agreement all the more elusive. By trying to hard to sell negotiation, they may unwittingly contribute to resistance. Success in negotiation, in addition to skill and intuition, requires tenacity and optimism, sometimes to the point of being pollyannaish; the same character traits can be their downfall. (Benjamin, R.D., “Working Dogs and Conflict Mediators: Character Traits in Common,” Mediate.com, 2007.)
Negotiation is a dirty business because principles are typically in competition with the realities of available resources, the surrounding politics, timing and the personalities involved. Negotiators can not forget principles entirely, nor can they afford to be too obsessed with them and are necessarily tempered by pragmatism. Concessions are obligatory and sometimes the resulting agreement can appear to be perilously close to outright appeasement.
A poignant illustration of the strain is available in Samantha Power”s book, Chasing the Flame (2007), a biography of Viera de Mello, a United Nations negotiator on scene and working to manage some of the most wrenching and difficult man-made disasters of the late Twentieth Century, including the wars and genocide in Cambodia, Serbia/Bosnia, and Rwanda, to name but a few. He ultimately was killed in a peacekeeping mission in Iraq in 2003. Power, had to struggle to appreciate that de Mello was almost always forced to accept that if he was to do his work: “feeding people was often incompatible with speaking out … (against violations of human rights).” Many criticized him for being too neutral and too close to the oppressors.
Michael Massing, offers a particularly incisive view of Power”s struggle, especially in light of her first book, A Problem From Hell (2002), where she pressed for unilateral action and condemnation of the violations of human rights as a matter of principle in the Bosnian Serbian war. Massing suggests that Power has more work to do in reconciling her first book of principle with her second book of pragmatics. (Massing, Michael, “The Power Conundrum,” The Nation, June 9, 2008) But her failing to reconcile her two books may be the reader’s gain. Her confusion is genuine and far too often overlooked. Perhaps there is no reconciliation available and we all must come to terms with the ambiguity that cannot be easily sidestepped. Negotiation and mediation are often a dirty and risky business.
Appeasement, giving away too much or being played for a fool, is always a risk in negotiation, and even then, only determined in hindsight. And, the risks of failing to negotiate may be greater still. One lesson, however, should be clear: The question is not whether or not to negotiate, but rather how and when. While negotiation should be preferred, if negotiation becomes an ideology in itself, the risk of appeasement is heightened. If negotiation becomes an ideology, then the only proof of its validity is an agreement, which may be an ill-advised settlement at all costs. Straying too far from the skill set of negotiation into the pursuit of social justice, peacemaking and transformation neither helps the negotiation nor furthers the pursuit of human rights. (Benjamin, R.D., “The Guerrilla versus the Humanist Negotiator,” Mediate.com, March, 2008)
The dirtiest trick of all is, paradoxically, for the negotiator or mediator to keep in check his natural bias for a negotiated settlement and free himself sufficiently to negotiate effectively, he must sometimes be willing to accept the risk that the negotiation made need to fail, even if the consequences are severe.
From ADRAC- The Australian Dispute Resolution Advisory Council Blog, organized with Shirli Kirschner Adapted from Prof Tania Sourdin, Alternative Dispute Resolution, 5th ed, 2016, Thomson Reuters. ADRAC gratefully acknowledges the authorship of...By Shirli Kirschner