Responding to Other Parties

Responding to Other Parties During Negotiations 

Nicole Carle: Hello, and welcome to this module on peace negotiation skills, specifically on skills responding to other parties. My name is Nicole Carle and I'm a counsel at the Public International Law and Policy Group or PILPG. Today I'm so pleased to welcome Matt Simpson, Senior Peace Fellow at PILPG, who was the Chief Legal Advisor for the Darfuri Delegation to the Doha Negotiations, and Professor Milena Sterio, Managing Director of PILPG.

Welcome both. 

Matt Simpson: Thanks so much, Nicole. 

Prof. Milena Sterio: It's a pleasure to be here. 

Nicole Carle: Let's dive straight into it. Responding to the other party. 

Reacting to Statements or Propositions 

Matt, it seems really straightforward, but what do parties need to keep in mind before reacting to a statement or proposition? 

Matt Simpson: Sure, and yeah, Nicole, it seems obvious, it feels like a tennis match where you get a position from the other side and then you respond.

But there's a lot of strategy that has to go into how and when and if you respond to any statement or proposition from the party on the other side of a peace process. Now, first of all, you know, the first question is always, is there more than one other party? Who is the other party that's submitting the material or the position? How much does it reflect the other side's views, holistic views? Are they homogeneous? Are there multiple different parties that are in multiple different positions on this? So, really trying to understand who it's coming from and what credibility and magnitude it carries with it. Are they really speaking for a broad constituency? Or is it more of a narrow position that only a subgroup or a smaller section within the opposing party is taking? 

So, you really have to be thoughtful about the identity and the nature of the response that you're getting. How it was communicated is also a key piece, right? You have to think through is this a formal draft document that's being submitted to you as a position paper in a process coming through the mediation? Is it something that's being back channeled through insiders on the other side? Is it being handed through some other intermediary? Really trying to understand how the message is being delivered is also a key component of it.

Your instinct can be to respond right away. Obviously, there is a sense of urgency, or there should usually be a sense of urgency in peace processes. We want to resolve the conflict as soon as possible, and so there's a real motivation to do that. But we really need to focus on having measured and thoughtful responses.

You don't want to respond too quickly. You need to make sure that you're really well prepared for the response, and that you holistically respond to it. You don't want to just simply fire off a response before you've talked to your advisors, your lawyers, other advisors that you might have and gotten their input before you've talked to your constituencies, perhaps. Maybe it's a major issue that you need to get some clarification on, maybe you don't, maybe you already really know what your delegation or your constituency has in mind on the particular topic, and so you don't need to necessarily run it by them, but you really need to be thoughtful about when you respond, do you have the credibility and the force of your constituency behind you when you make that response?

It's also really important to decide, do you want to respond to that particular issue in that position? Are they trying to drag you down into an issue that is not a priority for you? Is it a distraction? We saw this all the time in Sudan and Darfur when certain issues popped up and the government of Sudan would try and push an extensive conversation on a topic that really wasn't overly relevant to moving the process along, and it was a distraction technique. And so, we would often not respond directly to their positions, but instead, try and refocus the conversation on the topics that we thought were the most important topics of the day. And the ones that were most important for leading the peace process forward.

So, you also need to debate and discuss within your group whether you actually do want to respond. So, it seems straightforward in terms of responding, but there's a lot of variables that come into play when you look at who the message is coming from? What is the message? What does it actually say? And do you want to be responding to it or do you want to try and change the narrative? 

Nicole Carle: Definitely a lot to think about there. Thanks for starting us off on this note. Milena, I'm going to turn to you for something else.

Negotiating With Inexperienced Parties 

Not always will the negotiating parties that you're working with be experienced negotiators, right? So what if you have an inexperienced party at the table, and they're not fully clear on how they should present their positions and go about the negotiations in order for you to respond like that was talking about. Do you have any thoughts on that? 

Prof. Milena Sterio: Yes, that's right, Nicole. You could be in a situation where you have an inexperienced newbie negotiator at the table. First thing I would say is that you should not immediately assume that this person is a total beginner or that this person will be easy to work with. Actually, the opposite is true. Sometimes a new inexperienced negotiator might be more difficult to work with because this person's experience level or the lack of experience could actually undermine them as a negotiator, which in turn will require you to understand that they are inexperienced, and that actually might require you to prepare differently or to prepare better for the negotiation. So what you should do to ensure that the negotiation is smooth is consider, for example, providing a written agenda to guide the discussion.

You could also provide a simple guide to your delegation's response so that the other side is completely clear on what your point of view might be, and an outline or even a verbal roadmap could be very helpful on this point. Now you could also choose to exploit the other side's lack of experience.

Now, in order to do that, you have to be prepared. You have to research the other side's background. You have to understand what context they're familiar with or not familiar with. So in advance of your own negotiation session, you should prepare a file which has background information on each member of the opposite side.

delegation. You can also choose to try to gain their trust. You can choose to be more collegial. You can have a coffee or tea during the break with them. And this collegial approach could truly benefit your side and make the negotiations smoother. You should also, in order to prepare adequately and make sure that you're preparing when dealing with an inexperienced side, make sure that you establish the process early.

You should make sure that you know when concessions are going to be made. You should know how this will proceed, how many days, who can speak when, where things are happening. So, establish the process early on and make sure that the other inexperienced side knows what's going on. And then last, but certainly not least, you should really make sure that you understand that the other side, because they're inexperienced, might have a more emotional response.

First time negotiators, newbie negotiators, who don't have as much experience, are not necessarily able to take their emotions out of their presentation, out of their response. If you're prepared for their own likely emotional response, you will in turn be able to respond better to their own emotional response.

So, the key is really preparing for the negotiation with the understanding that the other side is not as experienced. 

Matt Simpson: Yeah, and one thing I'd add to that is that not only can you have an inexperienced opposing party, but you can also have underprepared or unprepared opposing parties. And there's a bit of a difference there because even if they are experienced, they might not be prepared for the negotiations.

There's a lot of reasons for that, right? Timing, perhaps the delegation didn't stand up until the last minute and they're suddenly finding themselves there. Perhaps the leadership of the delegation, especially for negotiating against a government, has a day job, has something else that they're expected to do because they're a military commander or within the bureaucracy of the government and they don't have the time to prepare for the peace talks, and they're trying to get up to speed when they get there. 

And so, one of the tricks that you should always think about is how to take advantage of a situation where you have an underprepared party on the other side and to turn that into an advantage for you. Being prepared on your side is the best way to anticipate that. So, working with your delegation early and often with your advisors to build out position papers to understand what your positions are going to be on various different topics is a critical piece, because any time in a negotiation that you can be starting from your documents or your position papers, you have an advantage over the other side because it is their job to then pull you off of your position rather than you trying to elevate yourself up to that position.

And so, it makes it harder for them. So, if you find yourself in a situation where you have an unprepared party, turning that around as, despite the frustration and the challenges for emotions and some of the other variables that we've just mentioned and how they can be negatives, try and turn it into a positive and impress the other side and the negotiators and the third parties with your commitment for to participation in the process and your preparation.

That'll go a very long way to building your credibility, both with the opposing party, but also with any third parties that are paying attention. Whether it's those that are funding the process, other external factors or stakeholders, and other folks that are influencing the process itself. 

Prof. Milena Sterio: And Nicole, one other thing that I would add here is that sometimes when you're dealing with an inexperienced party on the other side, you have to be prepared to postpone the negotiations to a later time if the other party is so inexperienced or unprepared so that they're not in a position to negotiate at all.

So, sometimes it's just better to postpone negotiations to a later date. And if you're doing that, just make sure that you set a definite date for these later postponed negotiations. So you can say, why don't we postpone until May 15th or until June 1st or whatever the date might be. And then finally, make sure that, you know, the other party's authority.

So when you're dealing with an inexperienced or unprepared party, make sure that you know what their authority is to make concessions. Can they truly commit to an agreement or to a partial agreement? You need to know that in order to know how to approach the negotiation, and if you understand that they simply don't have the authority to make any type of concessions, that's definitely a situation where you might want to suggest a postponement to a later date.

Matt Simpson: And that's a critical point that we saw in Sudan; one of the things that the government of Sudan did very successfully in the Darfur peace talks was they were accused of not participating or being prepared, so they delegated the ambassador to Qatar. They were hosted in Doha, Qatar at the time.

They appointed the ambassador to Qatar as their chief negotiator, which meant their chief negotiator was always in town, and he was always available. But, he had no authority to make any decisions or negotiate any points and it was a real frustrating factor for the process because time was on their side.

They were more than happy for the international government to see them participating in a peace process. They got a lot of concessions from the Americans and others for doing so. But at the same time, we weren't making progress. It was an incredibly long process that was dragged out in many ways because the Sudanese government just didn't come to the table to actually negotiate because the status quo worked quite well for them.

So, we have to see through their motivations and try and understand, are they unprepared or inexperienced for a reason? Do they actually have the authority or is this part of a negotiation tactic? So, sometimes you need to try and see through some of the smoke. 

Nicole Carle: Interesting. Thank you both for those responses.

Managing New Parties or Representatives

Now, what if you're not dealing with perhaps an inexperienced party, but you have a new party or maybe a new representative to an existing party who joins the negotiations at a later date? Do you have any tips for managing that? And Milena, I'll turn to you first.

Prof. Milena Sterio: Sure, Nicole. This can definitely happen. New delegation members could be added, and any time that's the case, such new delegation members can either slow down or speed up the negotiation process, depending on their role in the actual negotiation. Now, either can actually be used to your own delegation's advantage if this were to happen. You should make sure that when there's a new party that joins the negotiation that you educate the new party in a way that will be advantageous to your own delegation.

And here, you can use the same techniques as your delegation would with an inexperienced party. So for example, every time that there's a new party added, you should understand the extent of their authority, their interests and priorities. So, you still are going to need to do your homework, make sure you understand who they are, what their background is, and try to understand if they are experienced or are they a newbie negotiator and then what is their position with them within their own delegation? Do they have the authority to bind the other side to a particular position?

If you have new delegation members, you should also try to ascertain the interaction, the relationship between the prior delegation members, and the new delegation members. So be astute, try to see how they converse with each other. Are the new delegation members, do you think that they're more junior or more senior? Are they deferring to the prior delegation members? What exactly is their relationship? And then last but certainly not least, and this is somewhat of a Machiavellian technique, but you should consider whether to position the newer delegation members against the remaining delegation members.

Sometimes, it might be a good idea to try to create a little bit of friction on the other side, so maybe you want to use the new members and try to get them to come over to your side and try to position them against the older prior delegation members. Those are all things that you should consider anytime that there are new delegation members joining 

Nicole Carle: Okay, so now we have spoken about the different parties and delegations we could expect to see. 

Managing Fixed Positions 

Let's talk now about what to do with the party that is so fixated on its own position, it's difficult to understand why they may be negotiating at all. Matt, I'll turn to you. Do you have any tips for managing a party or delegation that is seemingly unwilling to make concessions? 

Matt Simpson: Yeah, it certainly happens a lot. It's an issue that is one you encounter in any type of negotiation, but certainly in peace negotiations, we see that a fair bit.

I firmly believe in interest based negotiation. So, I always try to see through various positions in posturing and try to really understand what the opposing party is trying to solve for. What is the issue that they are trying to negotiate? 

Because many times, You can find a path forward if you say, okay, what are you trying to solve for? Well, I would like to do X. And maybe the X is not conveyed clearly in their position, or their position's only one of a number of different ways to accomplish that goal for them. And in fact, you're okay with them getting X. And so you try and solve for it by really zeroing in on what is the position that they're so focused on.

Sometimes though, the intractability that you might experience from another side is not merely a breakdown in the communication structure, or perhaps an eloquent approach to negotiating, but can be intentional. And you just need to really try and understand, okay, why are they stuck on it? Is this an emotional issue for them for some reason?

Is there some sort of strategic or military reason that they're pushing on this issue? Maybe they're on the military side of the opposing party. And this is important for them, perhaps for their own pride. What is it that's driving their motivation? As we just talked about, the delegations themselves, whether they're new members or old members, they’re far from homogeneous.

They're not the same person. Different people will have different positions and different priorities. So, sometimes if one person is proposing a position that is seemingly intractable, you try and find another person in the delegation that you think you might be able to reason with and say, okay, what is this issue?

Why is it so important to that person? How do we get around this? Because it feels like we're stuck and I'm here at the table and I want to keep trying to find a way to unstick us. How do we move forward? Sometimes you can do that. Sometimes you just need to get up and take a break. Especially if it's an emotional issue.

Sometimes, you just need to get up and say, look I hear you. This position is very important to you. We are not going to resolve it today. We're not going to find a path forward. Right now, I suggest we take a break and meet up tomorrow and try again. Sometimes cooler heads will prevail on the next day and you can make some progress there.

Sometimes, it's going to have to be a longer break. Especially if it's a position where you are at odds with their intractability with your own, where you are saying, look, this is a deal breaker for me or not. We always try to avoid saying what a deal breaker is or not because you really need to mean it. That's the other thing, you can lose credibility if an issue is intractable and you say this is a deal breaker, I could never accept a deal without this.

It's really hard to walk back from if you ultimately do need to accept a deal without that. And so, when you're working with an opposing party and presenting your own positions and dealing with theirs, try to speak with a degree of moderation. I don't think you have to necessarily take too much off the emphasis or the importance of an issue for you. You can still say it's incredibly important without saying it's a deal breaker, because if it's truly a deal breaker and you're not making progress on it, why are you still at the table? You've now killed your credibility. 

And so, one of the elements that you should always focus on, especially when faced with an intractable position on the other side, is what is your best alternative to the negotiated agreement, right? What is your bet now? What else could you be doing? Because sometimes, if you find yourself having to get up and walk away from the table, you need to know what your BATNA is, and you need to remind the other side. I don't need to be here. We can go do this elsewhere. 

We can go work with this other venue or this other foreign government that's willing to sponsor talks. We can break off and go do back channel conversations. We can go back to war. Any number of different variables can come into play that are your alternatives. And if somebody on the other side is getting very aggressive and really intractable in a position, sometimes your BATNA is really the place to go.

Managing Emotions

Nicole Carle: So what I'm hearing is it sounds like negotiations can become quite heated if it were to get to this point. What do you do when emotions run so high? And Matt, I'll stay with you for this one. 

Matt Simpson: Yeah, sure. Certainly emotions can run high. The negotiations can very much get heated. I've seen chokeholds and arm wrestling and people being taken to the ground in the middle of a negotiation session, that was unexpected, but it certainly happens. 

But I think it's always important to remember emotions are a very powerful tool in a negotiation, but you have to use them consciously. First of all, you have to acknowledge that the topics that you're negotiating in a peace process are incredibly emotional in ways that I could never relate to, fortunately, from my background. 

You’re dealing with IDP and refugee return, you're dealing with transitional justice mechanisms. You're dealing with war crimes often. There are emotions and there should be emotions running through all of that. I don't think it does anybody a service to suggest that you can negotiate in a vacuum or without an appreciation for the contact context for the human toll that is really being taken by war crimes.

And inflicted by the conflict that you're trying to resolve. So emotions are very common. They're present. I personally think they should be present. But, one of the things we always try and advise our delegations on is to use them consciously. And what I mean by that is, sometimes it's useful to be mad. Sometimes it conveys a strong message to the other side if you have somebody yell and scream and slam their fist against the table, that can be powerful, that can help convey magnitude for a particular issue for you and importance and say, this is meaningful to me, I need to have that.

So that emotion can be good, but you can't all be yelling and screaming at the same time. You then need to have the counterpart to that, and you need to have the calm and cool and collected person that the other side can identify and recognize as somebody to talk to and actually make some progress. And so, the delegation is more than one person and we will often work with folks in advance of peace talks to understand their various roles and responsibilities in the negotiations and the roles that they want to play. 

You try to pair those roles and responsibilities to fit the personalities. Often, it's pretty easy to identify who should be the one that yells and screams. It should be the one that gets upset about particular issues and who's the calm, collected person that is viewed as the rational, reasonable person for people to engage with. When those emotions are being used against you, which can often happen as well or present against you, I think you have to do your best to respond calmly.

Try not to take the bait. Sometimes they're doing it for the very reason that I just articulated, is to try and convey the importance of a point, and you only lend credibility to that importance if you respond with an equal degree of emotion. Keeping your head when all about you are losing theirs is a famous line from a Rudger Kipling poem, but I think it's very important to try and remain calm in the face of emotions and pressure from the other side as best you can.

It's not an easy thing to do, but with training and with practice, and this is why we simulate negotiations often ahead of peace talks, it can be a really powerful tool for you. 

Managing Disruptive Delegation Members

Nicole Carle: Absolutely. And sticking with the heat of the moment, Milena, I want to turn to you to ask, what if the other party begins to make personal comments about a delegation member, which might be embarrassing, resentful, or otherwise disruptive to the negotiations?

Prof. Milena Sterio: The key here is to not respond in kind, and Matt just alluded to this. Most importantly, again, you should not respond. You should put emotion aside, and you should return to the negotiating table with a cool head, with the understanding that you're not going to respond that way, and that you're going to try recenter the negotiations in a professional way.

So, you should tell the other party that you intend to ignore the personal attack and that you intend to move on. In other words, you're telling them that you're not taking the bait. You're not going down to that level. And at the same time, you should remember that oftentimes when the other side is resorting to a personal attack, a lot of the time it's because they're upset, or it's purposefully because they're trying to upset your delegation. In other words, they're trying to get you to take the bait. And so, the best thing to do is just to not lose focus, to put emotions aside, not take the bait and simply say, I'm not going to respond. I'm going to ignore your personal attack and instead, we're going to talk about issues. X, Y, and Z. 

Probably easier said than done, but as Matt just said, the most important point here is that if you have been adequately prepared, if you have participated in simulated negotiations, you've been adequately trained, you are going to be so much better at responding in this professional way and in not responding with emotions.

Managing Intimidation

Nicole Carle: Matt, anything to add here or particularly when a party might try to purposely intimidate another party? 

Matt Simpson: Yeah, absolutely. I think there's a fair bit of intimidation that goes on. It's an important element in strategic tactics in negotiations. So, I would assume at times, you're going to find yourself the subject of intimidation, and that can come in any different types of forms, right?

It can be them flexing and making statements about their own size and power or authority. They can be more passive and make you wait or adjust the room in an uncomfortable manner. We've certainly seen that in negotiations. And trying to sort of get you off your game and distract you. Or it can be outright threats of intimidation or violence against you or your family or others that are participating in the peace process.

And they can always try and throw you off your game by trying to interrupt you or acting irrationally or inconsistently or without the professionalism that you and your delegation might bring to the table. When faced with this type of intimidation, you know, first of all, we're going to continue to hit home on the preparation point. 

Preparation is key. The more you've prepared, the less these types of intimidation factors will affect you, and the less successful they will be. So, the more work that you've done to train and be prepared, the less successful the opposing party's intimidation efforts will be upon you. What we often try to do in those situations is play to your strengths, play to your own delegation's strengths.

Once you're aware that they're trying to intimidate you, try and reposition the conversation to focus on your strengths to highlight the power that you might have in areas where they might be weaker, or to shift the conversation into an area that makes you look stronger than weaker. Obviously, sometimes, intimidation response might come up, but again, you should only ever do so consciously and thoughtfully as part of a larger plan.

You really need to try and remain calm and really try to avoid irrational or instinctive or emotional responses to intimidation. If you're going to respond, it should always be thoughtful and as part of the larger strategic plan. 

Ending Negotiations

Nicole Carle: Absolutely. Now, Milena, you mentioned earlier about perhaps walking out of negotiations or postponing if needed. I assume ending a negotiation early is usually not the preferred outcome. What do you do when another party decides to outright leave negotiations? 

Prof. Milena Sterio: Yes, Nicole, this is a great question because obviously when you're negotiating, you are trying to achieve some kind of an end goal, some kind of an agreement, otherwise you wouldn't be there at all.

So, if the other side walks out, typically you're not going to be too happy about it. First thing you should do is try to figure out if the other side is actually walking out, or are they actually leaving, or is this some kind of a negotiation ploy? Are they trying to put pressure on you? Are they playing with you?

So, are they truly leaving or is this some kind of a negotiation tactic? You should try to contact a member of the other side, either directly or indirectly through a third party. And you should always try to have some kind of a contingency plan, according to which you can reorganize, reschedule another round of negotiations.

And this really goes into your preparation, as we already talked about. If you're well prepared, you are going to have that kind of a contingency plan. You're going to be able to tell yourself, if they walk out, then I'm going to try to reschedule for June 15th. Now, oftentimes, you might have to resort to using a third party.

For example, if the other side has some kind of a sponsoring intermediary, maybe you should try to attempt negotiations with that intermediary about scheduling a future date, or if there's some other external party, external constituency that you think has an influence on the other side, maybe you want to reach out to them and try to ask that person to pressure your opponent into rescheduling.

You can also consider going public with the walkout. Now, before you do this, you should definitely discuss this with your media advisor. So, having a media and communications plan that also goes into adequate preparations. And I think we already discussed it at another training session. But, if you have a media communications strategy and you have a media communications advisor, you can talk to them about whether you want to go public with the walkout in order to put pressure on the other side and publicly shame the other side for walking out on you.

And then finally, you can consider involving some kind of an international or regional organization as a third party. If that type of an international or regional or organization has authority with your opponent in order to assist you with restarting the negotiations. 

So in a nutshell, you shouldn't panic. You should assess whether they're truly walking out or not, and if they're truly walking out, then you should do everything to try to get another date for restarting the negotiation schedule, and you might have to use some kind of an intermediary or third party in order to do that.

Nicole Carle: Matt, anything to add? 

Matt Simpson: No, I think that's absolutely right. Sometimes walking out on a negotiation is a very powerful tool. Sometimes it's one you want to use, and sometimes it's one that others will use. But you need to handle it well, and you need to be able to manage it well, because you can have a lot of blowback if you're the one walking out. 

Nicole Carle: Absolutely, so thank you for that answer on ending negotiations. And that now brings us to the end of today's discussion. Thank you both so much for joining and to our listeners. I hope this was helpful to you in your negotiation skill building. Thanks both.