Wednesday, April 18, 2018

Principled Negotiations and Complex Peace Processes: Reflections on Connecting Theory to Practice: Part I

This is the fourth installment of a blog series called From the Field. In this series we spotlight stories and insights from former students, friends, and colleagues who are working in the field of dispute resolution.

 

by Lisa Dicker ’17 and C. Danae Paterson ’16

Danae Paterson

“These methods may be fine in the classroom and maybe in some real negotiations, but they won’t be useful in truly challenging negotiations. The framework won’t work, for example, with actors who are perceived as evil, in incredibly complex contexts like wars or terrorism, or when power between the parties is extremely unbalanced.”

This is a sentiment many instructors of principled, interest-based negotiation have encountered in the classroom. Indeed, we’ve both encountered it during our time on teaching teams at Harvard Law School, for the Negotiation Workshop, for the Program on Negotiation executive education courses, and in other similar programs. When faced with this opportunity for an enriching and challenging dialogue on the applicability of these core tenets of negotiation to intractable conflict, we are

fortunate to have a unique set of experiences to inform our engagement—we are both members of Public International Law & Policy Group (PILPG)’s team, working in complex contexts of armed conflict and post-conflict peacebuilding. PILPG specializes in peace negotiations, war crimes prosecution, and constitution drafting. Collectively, our early-career experience with PILPG includes: providing technical support to the Syrian Opposition and its negotiation delegations in the context of the UN-led Geneva peace process and the Astana ceasefire framework; working on efforts to counter and prevent violent extremism in Tanzania, particularly relating to the justice sector; assisting civil society organizations in Yemen to engage in peace-building efforts and peace processes; and facilitating victim participation in emerging Hybrid War Crimes Courts in Sri Lanka, South Sudan, Kosovo, and the Central African Republic. In this post and in a subsequent post, we will examine how the theories of principled negotiation play out in the field of peacebuilding.

Lisa Dicker

In almost all cases, the work we do professionally could not be further removed, thematically and structurally, from the familiar teaching simulations such as “Oil Pricing” or “Sally Soprano” so often used in negotiation classrooms. However, while there are poignant and important differences between the typical package of Harvard simulations and how we approach our current complex negotiation work, the way we think about analyzing conflicts and designing solutions is built from the same interest-based foundation. In writing this post, we reflected on the rich nexus between our education and experience in the Harvard Negotiation & Mediation Clinical Program, and how this informs the work we do today in complex peace processes. As with any skillset, the tools and frameworks of our training at Harvard have their own unique challenges, advantages, and diverse applications. As early-career professionals and recent graduates, we still have close proximity to learning, teaching, and thinking academically about interest-based negotiation, while we are simultaneously in the midst of unpacking the nuances of that lens in application to our professional field. It has been a fascinating initiation into a complex range of negotiation dilemmas, none the least of which is the role that interest-based negotiation can play in peace processes, as well as its potential limitations, absent careful and sensitized adaptation.

At its core, it is our belief that negotiation—whether in the sale of a car, a business contract, or to establish a cessation of hostilities—is about interests. Interests drive revolutions and civil wars, push and pull individuals towards or away from violent extremism, and ultimately, can lead peace negotiators to the core discovery of what must be satisfied in order to achieve sustainable peace. Many negotiation practitioners and advisers seek to walk clients away from their overtly expressed positions (demands for certain outcomes or actions) and refocus their clients on their underlying interests (the needs, hopes, fears, and desires that motivate actors). However, this is not so easily done in peace negotiations. In conflict contexts, positional statements that draw hard lines may actually be effectual in gaining critical public support for the parties, and to meet the expectations of diverse constituents. Even more complicated, more often than not these positional statements may also represent a fundamental value, belief, or goal of the party that connects to the central cause of a conflict. For instance, political transition—particularly to remove the head of state—has been the rallying cry of many opposition groups in recent conflicts throughout the globe, and is a central position of some negotiation delegations. Parties to this brand of negotiation may not be willing or able to step back from their positions even internally or in private spaces. They may be even less likely to do so in front of another party, even if behind closed doors. Certainly, parties will almost never do this publicly.

For this reason, focusing on shifting the parties from position to interests—which can be highly productive in other contexts—can sometimes be less effective in complex peace negotiations. In these cases, it can be productive to take another approach. For instance, technical advisors may find that they are able to provide better assistance if they first ensure that they generate a deep understanding of their client’s interests, so as to provide a strong foundation upon which to generate meaningful options to meet those interests. From this important baseline, advisors can then frame those options in such a way as to both align with the stated position, and meet the underlying interest(s)—without getting entangled in attempting to separate the two. It can be useful in highly public and deeply fraught negotiations in particular, to focus on meeting actors where they are (and in some cases, embracing the reality that public positions are a tool that parties must and will continue to cultivate), while still crafting interest-based options. The rhetoric surrounding negotiations may continue to be positional, but the solutions themselves are more likely to be grounded in interests, facilitating an interest-based negotiation framework that is adapted to the context of the parties.

Interest-based negotiation is often referred to as synonymous with seeking a “win-win” agreement, but our work often represents a divergence between the two. The contexts in which we work frequently result in very real tension with the concept of value creation: overtly seeking an outcome that is beneficial to adverse parties is rarely desired in contexts of armed conflict, atrocity crimes, or mass human rights violations (although there are, of course, exceptions). Indeed, publicly admitting to seeking such value creation can be deeply untenable for certain parties. Furthermore, while many interest-based negotiation practitioners aim to “expand the pie” for parties so as to satisfy more interests of more parties, in contexts of armed conflict there may be very serious human consequences to this flavor of value creation. For instance, creating value that results in a bigger slice of the (expanded) pie going towards an opposing party (who may be responsible for massacres, ethnic cleansing, or utilizing rape as a weapon of war, for example), can cause the party who does so to lose much-needed supporters and credibility. Indeed, explicitly working to create value for an opposing party in these circumstances can cause a negotiating delegation to be perceived as pandering to perpetrators, or, painfully, betraying victims, survivors, and rights-holders. This loss of legitimacy can be catastrophic to the stability of a party and their ongoing ability to negotiate effectively.

Furthermore, in realist terms, creating value that assists the opposing party may enable them to retain critical power and influence, which can result in that adverse party’s continued ability to perpetrate atrocities, or potentially a resurgence of violence. Creating value for adverse parties can also facilitate that party’s ability to impact destructively the state or region in question, which may be the very outcome that a negotiating party was fighting to end or prevent. This is especially true of asymmetric negotiations between governments and opposition groups, where fluctuating power dynamics are complex and highly interconnected to the harsh facts emanating from the ground. Ultimately, due to the unique and potentially devastating concerns in these contexts, negotiations of this nature can sometimes trend towards minimally satisfying the interests of the other party—just enough to achieve commitment to an agreement that is stable in the short-term, but nothing more. In certain circumstances, this can limit the long-term effectiveness or sustainability of the resulting peace agreement.

Focusing on interests and emphasizing value creation are generally viewed as hallmarks of principled negotiation. However, as with any negotiation context, these concepts have a unique application and delicate nuances within the field of peacebuilding. In the next installment we will look further into how principled negotiation plays out in a dynanmic peace negotiation by examining the important issues of process, commitment authority and principal agent tensions.

 

Lisa Dicker ’17 is a Law Fellow at Public International Law & Policy Group and is currently based in Amman, Jordan. Lisa is also an adjunct faculty member for Bay Path University’s M.S. in Leadership & Negotiation. While at Harvard Law School, Lisa was co-Editor-in-Chief of the Harvard Negotiation Law Review; a two-time teaching assistant for the Negotiation Workshop; a teaching fellow for the Program on Negotiation’s Negotiation and Dispute Resolution Seminar and Harvard Negotiation Institute; a two-time student of the Negotiation and Mediation Clinic (HNMCP); and a co-President HLS Negotiators.
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Danae Paterson ’16 is a Program Manager at the Public International Law & Policy Group, managing portfolios including PILPG’s Syria Negotiations Support Program, Yemen Program, and Victim Participation in Hybrid War Crimes Courts Program. While at Harvard Law School, Danae was a teaching assistant for the Negotiation Workshop; a teaching assistant for the Harvard Negotiation Institute; and a Harvard Program on Negotiation Summer Fellow. More recently, Danae was a partner organization liaison on behalf of PILPG to the Harvard Negotiation Mediation Clinic (HNMCP).

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