Monday, April 30, 2018

Principled Negotiations and Complex Peace Processes: Reflections on connecting theory to practice—Part II

This is the fifth 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

Lisa Dicker

In the first installment of our reflection on the pedagogy of principled negotiation, we began our consideration of the practicalities of applying theories of interest-based negotiation to peacebuilding.

We turn now to the concept of negotiation process. Agenda-setting can be a highly chaotic and challenging aspect of peace negotiations. Sometimes, this aspect of the process can hold a great deal of importance to parties, as the agenda can impact both the substance of negotiations (which is critical, and often highly political), as well as how the negotiation framework and its participants are viewed by constituents. The outcome of an agenda-setting processes can also impact how the negotiation framework is perceived by the international community, whose support may be sought by certain parties in the peace process.  Sequencing as expressed through agenda-setting can be one particularly impactful factor in this regard. For instance, negotiating disarmament and demobilization without a prior agreement on governance could in theory be more likely to lead to the current government remaining in power rather than a transition in leadership (depending on the context). And, for an opposition group, the image of engaging in negotiations to lay down weapons or withdraw from combat without securing a new governance structure may be viewed by their base as lack of commitment to the highest priority of the opposition (or indeed, as “surrendering” militarily to the opposing party). Furthermore, in some cases parties do exploit early disarmament by other parties so as to enact a swift military solution to a conflict, and therefore premature agreement on this issue may obviate the peace process entirely—or, at the least, the risk of this outcome may cause certain parties to refuse to negotiate on this topic until other agreements and guarantees have been put into place. Indeed, peace processes world-wide have seen parties falter, and even withdraw from the peace process entirely, due to disagreements over the agenda. This delicate process may require a significant investment of time in order to lay a sufficient foundation for complex talks. In Syria, for instance, the first two years of the UN-led Geneva process focused almost exclusively on setting  a broad agenda for negotiations. In applying interest-based negotiations to peace processes, technical advisors can benefit from careful attention to the fact that the process for agenda-setting can sometimes raise particularly thorny and resonant questions, which may require a thoughtful resolution before digging into substantive negotiations.

Danae Paterson

In addition to agenda-setting, parties to peace agreements may also have fundamental interests in other aspects of the negotiation process, including which parties to the negotiation should be included at the table, who, if anyone, should mediate the negotiations, how transparent and accessible the negotiations will be to the public, where negotiations should physically take place, and more. Sometimes an agenda that allows for incremental agreements can be a useful vehicle for progress, perhaps allowing for the selection of discrete, less-fraught topics for earlier discussion (although there are many reasons to design incremental agreement processes in other ways). Depending on the design strategy that best suits the parties needs, parties could advocate for a process whereby somewhat more manageable topics are to be agreed upon one by one as they are discussed, so as to build trust and momentum as the process develops over time. In other cases, parties may not wish to proceed in this manner, but rather to refrain from agreements of any kind until all topics for negotiation have been thoroughly discussed. Although this particular brand of process design may not be right for all negotiations, or for all parties, in at least some cases this approach can facilitate the parties’ ability to achieve small wins early on, in relation to these more easily-negotiated topics. In these types of negotiating frameworks, the concept of process can become closely intertwined with another recurring negotiation concept: commitment authority.

Particularly in peace processes involving non-state actors and intervening third-party states, the principled negotiation element of commitment authority can be crucial. In many negotiations the question of which person or entity represents a particular party to the conflict is clear. Similarly, while this is not always true (and an important aspect of negotiation preparation for parties), the authority of that person or entity to commit to an agreement may also be relatively ascertainable in many diverse negotiations. However, peace processes often reflect more hazy representation arrangements and, relatedly, commitment authority. This is especially true in contexts that incorporate an umbrella coalition opposition group, which may internally struggle to determine decision-making authority or to design decision-making structures. Similarly, in coalition platforms throughout the world, certain members (especially those with significant influence on actors on the ground, including military actors), may have the ability to more or less defect from the coalition at will, or simply chose to ignore agreements made by the umbrella group. This can limit the consistency of representation for a particular party at the negotiating table (and in some cases lead to competing splinter parties who may or may not be automatically incorporated into the negotiations), and may also delimit or delegitimize the perceived credibility of the negotiating party’s commitment authority.

Furthermore, principal-agent tensions are a regular theme in commitment authority in the peace negotiations context. For instance, a third-party state that backs a particular party to the conflict may commit on their behalf to a ceasefire or other agreement, but the principal may not have given the third-party this authority, or may later withdraw it. There also may be a significant disconnect between actors on the ground and negotiation delegations, in relation to the level of commitment authority actually vested in the delegation. This has serious implications for the success of any peace agreement that a process might produce, particularly given that the actors on the ground are likely to be critical for successful implementation. Without their buy-in to whatever has been agreed, implementation may prove to be very difficult or, indeed, impossible.

Our time engaging with the contours of interest-based negotiation while at Harvard provided a critical foundation, from which we have developed our early-career engagement in peace processes and related negotiations. The introspective application of the elements of principled negotiations to these complex and often highly specific contexts has proven to be a useful exercise throughout our engagement in this work. Thoughtful adaptation and an unflinching focus on the specific contexts in which we are working has been a critical tool for success in transitioning our interest-based negotiation skill set into this niche field. As we continue in our careers and encounter new challenges and circumstances, we look forward to deepening our understanding in relation to applying the skills of interest-based negotiations in armed conflict and post-conflict peacebuilding, in a manner that promotes sustainable peace and human rights. In our work, we have the privilege and opportunity to hone our ability to answer the question posed by so many students of negotiation: How does this framework apply in the most fraught and complex of contexts, where certain parties may have committed horrific violations, and the underlying issues are unimaginably entangled and difficult to identify? This question is not a hypothetical to many peace negotiators and technical advisors, but rather, represents a critical aspect of how we are able to best serve our clients. It is a timely and pressing inquiry, and we hope to spend our careers seeking satisfying answers.

 

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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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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