Sustaining Negotiations

Sustaining Negotiations

Nicole Carle: Hello, and welcome to this module on sustaining negotiations and other ways to reach a successful resolution. My name is Nicole Carle and I'm a counsel at the Public International Law and Policy Group, or PILPG. Today, I'm pleased to welcome Matt Simpson, Senior Peace Fellow at PILPG and former Chief Legal Advisor to the Darfuri Delegation for Doha Negotiations, and of course Dr. Paul Williams, Founder and President of PILPG. Welcome, both. 

Matt Simpson: Thanks so much, Nicole. 

Dr. Paul Williams: Thanks, Nicole. It's great to be here. 

Nicole Carle: Pleasure to have you. Now, let's dive right into it. 

Negotiation Sessions

Negotiations usually last longer than just one meeting between parties. Paul, I'm going to turn to you first and ask, could you please explain why it's important for negotiators and mediators alike to prepare for ending each session of the negotiations?

Dr. Paul Williams: Well, Nicole, it's really important to prepare for the denouement or the end of a particular session because in that gap between that time and the next session, you really could lose momentum. You could lose some of the agreement that's been reached. When you're in the Rambouillet Chateau or the UN in Geneva or Key West, Florida with the Armenians, you're in a certain environment and all of the tools that a mediator is using bear fruit, ideally, and progress is made, momentum is built, the parties are identifying their interests and not just their positions. 

But then when you take a break, you often need to take a break to go back and consult with your constituency or to prepare for the next round or for whatever particular reason, you're outside of that mediation bubble and you can be pulled apart and back to your positions, ignoring your interests and ignoring the commonalities that you've identified with the other party.

And so, you need to find some way of locking in not only the progress that has been made on agreements, various provisions or on an agenda or something along those lines, but also a way of, in a sense, capturing and preserving that momentum and carrying it through the break period.

Preserving Progress

Nicole Carle: Thanks for kicking us off with that. And Matt, I want to turn to you now and ask about when ending a negotiation session. What would be your main advice for parties to preserve the progress that's already been reached? 

Matt Simpson: Sure. So, certainly the ultimate goal is to have some form of a written binding commitment among the parties that lays out exactly where we ended the process or that phase of the negotiations.

That's not always possible, but that's certainly what you should work towards. At the very least, it's always helpful to have the parties confirm their commitment and first of all, confirm and identify each significant point that has been agreed to. That's actually harder than it sounds. Oftentimes, you're making progress in the momentum, in the spirit of negotiations, and you're not always recording things clearly and as accurately as you need to.

And, taking those moments when a negotiation is going to break for a bit to pause, and look and reflect on what progress has been made and what have we in fact agreed to is a really important step. You know, some sort of an intermediate agreement or other recognition of where things have ended when the break happens is really critical.

So, at the very least, writing those intermediate agreements down, what have we agreed to at this point, and having both parties acknowledge their commitment and their agreement to that. Now, again, that can be tricky because sometimes when you see all these different points written down, it might be the first time that some of these delegations or participants have seen the totality of all these agreements and all these points in one place.

And while negotiating points in isolation, they might have been willing to agree to something, sometimes you can lose a little bit of traction or there can be a little bit of slippage where people say, ‘oh wow, I didn't realize when you add all this up, the sum of these different points isn't quite looking as attractive to me as I thought and hoped it might be.’

When that happens, you need to stay calm you need to try and acknowledge that, hey, look, this is what we agreed to, lean on the mediation in particular, to bring both parties back to the agreement to where they were, and to really ask them to, and encourage, and demand, in fact, that everybody honor the agreements that they've made so far. And to do that, you really need to move past verbal commitment as well.

While it's great that people acknowledge that, yes, this is where we are, this is the progress that we've made, we really need to write down the agreement at the end of the negotiation session so that we know what it is going forward, and so that we know where we are and what progress has been made to date. Sometimes we call that the heads of the agreement. 

Nicole Carle: This is a really important point. 

Ensuring the Intermediary Commitments Are Binding

Nicole Carle: And Paul, I want to ask for your input on these intermediary commitments that the parties make that are written down and often summarized at the end of certain sessions. How can a delegation ensure that they're hopefully binding?

Dr. Paul Williams: Yeah, so I think that there's a number of things that should happen in that period when there's been some agreement reached or some consensus built. The mediator definitely should put in writing a summary of what has been discussed, what the positions of the parties are, where some collaboration, you know, what are some of the results of the collaboration? 

Because every party likes to see its views acknowledged, recorded, even if the agreement represents a compromise or there isn't yet an agreement at the end of, whatever particular round it is the parties are engaged in, they've at least been heard. And they can also show that to their constituencies to say, look we've made, we've made the case for security sector reform, or we made the case for DDR, or for power sharing, etc. If there's any preliminary agreements, or if there's language where some of the language is agreed and the other is in brackets, that should also be condensed, and this may want to be kept confidential or private because you have to balance out everybody's successes over the course of the negotiation and you don't want one party thinking it's one more or less, but have the parties initial it so they can't go back on it. 

It's not binding. It's not a peace agreement. It's not a signature, but they initial that they acknowledge yes, this reflects where we are. We started at A, we started at Z and now we're at D and we're at R. We're moving in the direction of a compromise, and so that's one tool that the mediators can use.

Now on the flip side, each party should do exactly the same thing. Each party should write down their own summary of what happened. And, they should write down what agreement has been reached. And, I would encourage them to do this every evening. Matt and I had this experience when we were in Doha. There was a hard fought negotiation on three issues. And the same thing happened to me at Dayton as well. It happened to be three issues. And the mediator came back and said, yes, we reached agreement on issue one and two yesterday. Now let's discuss three. And our client had made serious concessions on one and two in order to get three. One and two reflected those concessions, but somehow the mediator simply forgot about number three, and it caused a breakdown for that entire day in the negotiations, because it was seen as bad faith. And it was just poor note taking, poor lawyering on the part of the U. N. mediators in that process.

So it's important that the party can say, no, look, remember, here's our summary of our negotiations, here's the conversation, here's the timestamp, and these are the three things that we agreed upon. So it's incumbent upon not only the mediator, but each of the parties to crystallize a summary and to crystallize points of agreement. You can also write down points of contention. That's also helpful to point out so that you can remind yourselves of what the positions in the interest of the different parties are. 

Ending Sessions

Nicole Carle: So once the intermediary agreements are written down and perhaps initiated, like you mentioned, what would the ending of a negotiation session look like in practice?

Now, Matt, I'll turn to you for this one. What other things can parties do or what do they need to consider at the end of a particular session or meeting? 

Matt Simpson: Sure. So as Paul says, the writing down of these agreements and the proper note taking is a critical piece here. Again, it's not binding, but that should always be the main goal.

It gives you what we might call moral high ground, a position to turn to the other party and say, this is important. You know, we understood this. As Paul said, we saw it time and time again, where proper note taking really made sure that the process runs well and improper note taking or unsuccessful note taking caused a lot of trouble.

So, writing it down is always critical. Sometimes again, if you're having a hard time building that intermediate agreement and having everybody acknowledge and recognize the progress that has been made and the outstanding points, you might need to take a little bit of a break. It might be a mini negotiation in itself, but the goal really should be record keeping when it comes to these intermediate agreements, not further negotiations.

And that's where if you and your delegation are prepared and have taken good notes along the way and held the mediators and the other parties to the same standard so that the progress has been well documented along the way, it shouldn't be a surprise to anybody when you sit down and try and summarize it all.

Once you have that intermediate agreement and are ready to break, first of all, I should add, don't leave until that happens. Don't leave the talks. You need to show that you are committed, you don't want to be accused of leaving early or before that is done. It is bad. From a public relations perspective, from a process perspective, for you to be seen as leaving.

So, if you need to take a break, if both parties need to cool off for a little bit and then come back so that you can better record, then that's fine. But don't leave the talks until you have this clear agreement written down on the progress that was made. Sometimes, it is also helpful if the break is for a known reason and perhaps a known duration and not necessarily because the talks have fallen apart, make a plan for the next session.

So really, that focuses on, who's going to be back, when are we going to do it, and what are we going to talk about? Identifying what we're going to talk about is critical. Where do we want to go next? We've cleared off these key pieces on the agenda, let's move into the next two or three.

We tackled some easier low hanging fruit, perhaps. In this session, we made a lot of progress. Let's work our way into more difficult sessions. But identifying what you're going to talk about will then help you answer who's going to talk about it, and make sure that the delegations are prepared to re-engage, again, when the time is then right.

But who is critical so that the experts, if it's a particular subject matter, for those that represent a certain constituency with a particular interest in that topic are well represented. You want to make sure that you identify what you're going to talk about next, who should be there, and then when should everybody expect to come back together.

And that's a key piece for continuing the momentum from the talks that have just ended and broken with the intermediary agreement and then working your way into the next session. 

Nicole Carle: All right, and with that answer, we've covered two key steps for ending negotiation sessions, the first being summarizing and writing down agreements or perhaps concessions, and second, like you just mentioned, planning the next session. Paul, I want to turn to you for the last question. Do you have any further recommendations for delegations when concluding a session?

Dr. Paul Williams: Yeah, Nicole, I think for both the mediator and for the parties, it's important to take a beat, so to speak, and think about how their message is going to be received by their constituencies, by the international community, and what role that public messaging is going to play in maintaining the momentum until the next round of negotiations.

And I say take a beat because, you're negotiating intensively, you've reached a little bit of agreement, there's a lot that you don't agree upon, there will be lots of tension, and then, okay, we're going to take a pause and you want to go out to the, if you're a party, you want to go out and you want to shout about how awful the other party is and, yeah, the mediator isn't doing a really good job.

And, you know, we're working hard here on our delegation. But then if you think about it, okay, the international community may say this is a wasted effort. Why are we funding this? Why are we paying for this? Why are we providing security? Let's just give it a pause. You want to do your own part in contributing to maintaining momentum. And then that way, when you do have something serious to say, when you do have a concern, you don't have this reputation of being the party that's always whining about the negotiations and the role of the mediator.

Same thing with the mediator, every mediator, if they really said what they thought about the parties, it wouldn't be pretty but you have to be unbiased, you have to be equitable until a time at which you may want to call out a party or pressure a party. But until that time, you have to maintain that even-handedness and that relaxed approach.

You know, this is difficult. This is tough. It's going to be a long haul, but things are going well and you find the three things that the parties did well together and you highlight, and you emphasize those again, because you really get into the mentality of inside the negotiating box.

But that box is part of a larger effort to bring peace to a country or to a region. And how you end that particular round of negotiation is characterized by your public statement, and you need to do it in such a way that it energizes, that it doesn't debilitate the process that you're a part of, or if you're a mediator, the process that you're in charge of.

Nicole Carle: Matt, anything to add on this? 

Matt Simpson: I think the only other thing I would add on the topic of taking a break in the process is that just because the formal negotiations themselves break doesn't mean the work stops for both parties as well as the mediator. And so, from the mediator's perspective, shadow diplomacy, shadow conversations, process conversations, you have to be very thoughtful and sensitive to how you are doing these things and perhaps transparent, but it doesn't mean all communication breaks down and everybody just goes back to their corners for a month or two months. 

Time kills all deals. It's a line that we use frequently in my corporate practice of law, but also when it comes to peace negotiations. The more time that people have to move in other directions, to think, to be influenced by other factors, the more challenging it can be.

And so, taking the break for whatever reason it might be, but still trying to make progress, still trying to identify who was productive in the delegation. Let's make sure that they're back and communicating that message. Who wasn't so productive in the prior session. Maybe talk to the leaders of the team and say, hey, look, thinking about your team for this topic.

Perhaps, you could bring somebody else in. I think that might land better with the opposing party. And then for the parties to take the public message that Paul just talked about and some of the confidential conversations as well and bring them back to their people to continue to incrementally build support for the progress that is being made in the concessions are being made, again, not to surprise them at the end of a negotiation session that's taken six months to say, here's what we've agreed to. 

But use the time of those breaks to communicate, to solidify your positions, to better understand what your positions are, and perhaps refine them, and to educate yourselves and train further. There's a lot of work that can be done during these breaks that can help make the subsequent sessions that much more productive.

Conclusion

Nicole Carle: Thank you both. And with that, we are at the end of today's discussion on sustaining negotiations. Thank you both for joining this session and for our listeners and later videos, we will continue to discuss other aspects of negotiations and the techniques you can employ. Thank you again. 

Dr. Paul Williams: Thanks so much, Nicole.

Matt Simpson: Great. Thank you, Nicole.