Negotiations happen everywhere. We negotiate with others – adversaries, interested third parties, friends – with our separate goals, and prejudices. Successful negotiators understand not only their own goals and prejudices, but those of all other parties to a negotiation and they maneuver through these competing concerns through advanced preparation, strategic-thinking, and execution. The International Negotiations Handbook: Success Through Preparation, Strategy, and Planning is designed to provide tools and ideas to assist every party to a negotiation to be a more effective advocate for its interests and, as a result, to achieve successful negotiations overall. This project is the result of a year-long joint effort between Baker & McKenzie and the Public International Law & Policy Group (PILPG).
Baker & McKenzie has provided sophisticated legal advice and services to many of the world’s most dynamic and global organizations for more than 50 years.The Firm’s more than 3500 lawyers are citizens of more than 60 countries and speak more than 65 languages, and one of its core values is to encourage all of its lawyers and staff to participate in service to others. Across its offices, Baker & McKenzie makes a significant commitment to helping others, through pro bono legal service, community service, civic leadership and charitable giving.
The Firm’s pro bono and community service practice takes many forms, ranging from multi-country projects on behalf of global organizations, to local efforts to represent children, foster entrepreneurship, raise funds for medical research, support the arts and more. PILPG is a 501(c)(3) non-profit organization that operates as a global pro bono law firm providing free legal assistance to states and governments involved in conflicts. To facilitate the utilization of this legal assistance, PILPG also provides policy formulation advice and training on matters related to conflict resolution. To date, PILPG has advised over two dozen states and governments on the legal aspects of peace negotiations and post-conflict constitution drafting, and over two dozen states and War Crimes Tribunals in Europe, Asia and Africa concerning the protection of human rights, self-determination, and the prosecution of war crimes. In January 2005, a half dozen of PILPG’s pro bono clients nominated PILPG for the Nobel Peace Prize for “significantly contributing to the promotion of peace throughout the globe by providing crucial pro bono legal assistance to states and non-state entities involved in peace negotiations and in bringing war criminals to justice.” The union of Baker & McKenzie and PILPG for this important effort is unique and synergistic in many ways.
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Clients results in a team of lawyers experienced in cross-border advocacy in many areas of law and nearly every region and culture of the world. PILPG’s expertise and experience in post-conflict negotiations positions it among all global nongovernmental organizations (NGOs) to provide pro bono representation to the political parties, governments and other entities that seek peace after conflict in many corners of the world. The union of these two entities is a first of its kind and blends the experience of public and private practitioners to create a series of mechanisms used in negotiations to help clients achieve success. Baker & McKenzie and PILPG have a common interest in assuring that significant negotiations at critical junctures of the peace process do not fail because of a lack of skill, training, or legal representation. The two groups also share experience in international advocacy in many settings and a commitment to serving the public with the highest quality attorney representation. Finally, Baker & McKenzie and PILPG share a mutual respect and appreciation for each other and plan to use this exercise as an opportunity to provide joint-training sessions and to distribute the lessons embodied in The Handbook in post-conflict arenas around the world.
Mediation can be defined as the act of intervening for the purpose of bringing about resolution to a conflict (Barsky, 2007). In the mediation process mediators are considered to be a non-bias, neutral third party who directs the mediation process in effort to guide the conflicting party’s to a viable conflict resolution. Having no displayed or exhibited pre-judgment of either conflicting parties, ...
There are three keys to understanding The Handbook and to obtaining its maximum effect. “Success.” Being “successful” does not mean “winning.” It means identifying those goals or objectives that a party wishes to achieve and, through detailed advanced preparation and strategic, principled analysis, creating a plan that will maximize the chances of achieving them. Every negotiating party will have different definitions of success. Whether a party “wins” or “loses” is a subjective question that cannot be measured. Whether a party is “successful” is measurable by what it sought to achieve by the negotiations and whether it did so. The Handbook therefore provides tools in the craft of negotiations to achieve success. It leaves to others the art of how to win or lose. “Training.” The Handbook is not to be merely read. It is designed to be part of an overall training program. No one learns how to play cricket by reading a book. Everyone learns by picking up a bat and a ball. So too with the tools provided here. The Handbook has been prepared as a series of tools that can be sharpened and honed through mock exercises and active lectures and discussions. This is about the “craft” of successful international negotiations. No craft is learned without active participation and practice. “Negotiations, Parties, and Mediators.”
The Handbook has been written in the context of multi-party negotiations. “Parties” refers to each side’s delegation, as well as the mediation party. Some negotiations may involve a purely “facilitative” mediation party or an “evaluative” mediation party. A “facilitative” mediation party is one who does not pass judgment on the respective interests or positions of the delegations, but merely works with them in an attempt to reach an agreement. An “evaluative” mediation party will attempt to guide the process by providing the delegations with assessments of the relative strengths and weaknesses of their various positions. Delegations should expect pressure from an evaluative mediation party to bring the negotiations to a resolution. Whichever type of mediation party is involved in a negotiation, all of the ideas, strategies, and techniques reflected in The Handbook are intended to provide each side’s delegation the best opportunity to achieve its objectives. Dozens of lawyers from the Baker & McKenzie global network participated in creating The Handbook that follows. The lawyers came from the disciplines of litigation, corporate, tax, international, finance, and others.
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The only experience that all of the participants shared was that each was learned in the art of persuasion – whether in the negotiation room, in the board room, or in the court room. With PILPG providing its extraordinary experiences and insights that have been drawn from advising clients in any number of international negotiations from Bosnia to Sri Lanka, The Handbook provides specific insight into the techniques of successful negotiations. It reflects countless hours of experiences in all types of adversarial settings and reflects the techniques and strategies that private parties and formerly warring states have found indispensable to achieving their objectives through peaceful negotiations. Baker & McKenzie and PILPG are thus extremely proud to present The International Negotiations Handbook: Success Through Preparation, Strategy and Planning.
Chapter 1: Goal Setting
It is important that at the very beginning of the negotiation process the delegation engages in an internal evaluation of the delegation’s goals and the goals of the delegation’s constituency. These goals may be both immediate and long-term. They may be specific and minor, and they may be broad and fundamental. This exercise is the first and perhaps most important step in developing the delegation’s strategy. It is to be done with as much detached analysis as possible, attempting to remove emotion (anger, hatred, fear) from the process. The use of technical experts, such as legal counsel and others, at this stage can be invaluable. The delegation must do this analysis at the outset so that the delegation has an accurate appraisal of the delegation’s strengths and weaknesses in light of the delegation’s goals and the goals of the other parties. This initial goal setting will allow the delegation to focus the negotiation on issues that are truly important to the delegation and to avoid wasting time on irrelevant issues. Careful attention to goal setting will also avoid unnecessary focus on emotional issues that are not central to the delegation’s true goals. Determining the delegation’s goals must be done before the delegation can define an effective negotiation strategy, and defining a strategy is the first step to a successful negotiation.
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This goal setting process is best accomplished by having a group meeting where everyone in the group puts forth ideas for discussion. All ideas are encouraged. Only once the group has exhausted its creativity should the group begin evaluating each of the ideas. As a practical matter, this is usually done by writing each of the ideas down on a large board, where they can be seen by all (maintaining appropriate levels of confidentiality).
As ideas are determined to be least effective, those are removed from the board. Ultimately, the groups’ most effective ideas and strategies remain. This entire process, here and throughout the entire chapter, demands significant preparation, both in advance and in person. Your delegation should plan to meet well in advance of the first negotiation. This preparation may require several meetings of the group, and will certainly requires a substantial amount of time. Each new negotiation session requires a new “in person” advance preparation session. Your delegation should assume that the other parties are holding these preparation sessions.
In a dispute, it is important to decide in the beginning what the delegation is trying to achieve. From that, everything else follows. Every step and strategic choice in the negotiation process must be made after asking the fundamental question: how does this help your delegation “achieve success?” • The delegation must ask: what is your delegation trying to achieve?1 – Sometimes, this might be what is your delegation trying to avoid? • What does your delegation need? – Decide if it is complete victory, partial victory, or any progress at all. • What are the needs and goals of your delegation’s constituency? Your delegation will need to account for these factors in order to achieve success. • Evaluate the likelihood of achieving what your delegation wants, which requires evaluating the strengths of the other parties’ positions. • Decide whether your delegation is seeking a solution for now or a solution for all time (ceasefire, return of refugees, redrawing borders, sovereignty).
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• Break out the elements of your delegation’s ultimate goals – what “successes” are necessary to reach your delegation’s ultimate goals? Based on the points above – should your delegation redefine success?
Once your delegation asks itself these questions, your delegation’s next obligation will be to decide whether what your delegation thought initially would be considered “success” remains the same. Oftentimes the discipline of going through the above exercise of examining and writing down your delegation’s answers to these questions reveals the strengths and weaknesses of your delegation’s initial definition of success. As with all internal communications, confidentiality must be maintained. Measures should be taken to ensure that the documents are not disclosed to the other parties, the media or your constituents by mistake. The chosen definition of success will drive your delegation’s strategy throughout the process.
One of the challenges of a negotiation is deciding how strictly to ____________________ 1 It is often helpful to write down the delegation’s responses to these questions and to refer to them throughout the negotiation. adhere to the strategy and goals established in pre-negotiation preparation and how much flexibility would best serve your delegation. The delegation must strike a balance between strictly adhering to the conclusions that resulted from the delegation’s careful preparation and remaining flexible throughout the negotiation process so that the delegation is able to adapt to positions taken by, and information learned from, the other parties. “Success” does not mean necessarily “winning.” It means, quite simply, achieving your delegation’s objectives.
Understanding Short-Term And Long-Term Considerations Of All Parties Knowing how to weigh the delegation’s objectives is essential to achieving them. Once the delegation has identified its short-term and long-term needs, the delegation has to be able to balance them. This is particularly important when a specific event with immediate consequences is what brought the parties to the negotiation. Such an event can make short-term needs appear more significant than they may be in the long-term. Even if the delegation cannot solve the long-term problem, this does not mean there is no value in negotiating to achieve the short-term goals. • What are the delegation’s short-term needs? What are the delegation’s long-term needs? – Political, economic, health, welfare, safety, other. – Recognizing that all of these issues are emotional, it is important throughout the negotiations to use principled analysis, rather than emotion to answer these questions. • How does the delegation prioritize them? • Balancing needs:What is the delegation willing to concede in the short-term to achieve long-term goals? What goals is the delegation willing to sacrifice in the long-term to achieve the short-term objectives? • How does the delegation’s needs match up against the prioritized needs of the other parties? • What are the delegation’s resources and capabilities that will allow the delegation to achieve its short- or long-term objectives?
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Before entering any negotiation, the delegation must understand these considerations for all parties in the process, your delegation, the other delegation(s) and the mediator. To be effective, this evaluation process must be repeated for all other parties to the negotiation.
Knowing What Needs Or Goals Are Realistically Non-Negotiable (What Are The Delegation’s “Breaking Points”) In defining what it is the delegation wants to achieve, the delegation always must keep in mind that there are certain individual short-term needs or even collective long-term goals that may be considered “non-negotiable.” Non-negotiable does not just mean “important.” An issue like the price of an object can be important and yet still be negotiable. The team must identify these “breaking point(s)” at the outset. Identifying too many breaking points will inevitably reduce the delegation’s negotiating options, and potentially prohibit the delegation from reaching a negotiated settlement. Identifying too few breaking points may cause the delegation to agree to something that the delegation cannot enforce or comply with. Thus, it is important to accurately identify the delegation’s breaking points, and not simply draw up a list of important items. •
Evaluate the delegation’s short- and long-term needs and, being realistic, determine which in fact are non-negotiable. – There may be a range of needs that can be grouped into different categories among those that are non-negotiable to those that your delegation would prefer not to negotiate, but will under the right circumstances. – The delegation may have a number of needs or goals, none of which can be categorized as breaking points. However, failure to achieve enough of these goals or needs may itself constitute a breaking point. – This may be an effective method of redirecting a mediator who only wants to focus on the “non-negotiable” items. Using this approach, the delegation can discuss each of its items, stressing that failure to achieve a sufficient number of these items will itself be a breaking point. • Then, ask why they are “non-negotiable”? • Has the delegation considered all other possible alternatives? – Be open to new or creative alternatives or solutions.
• Continually evaluate and re-evaluate the “non-negotiability” of any need in light of new information and circumstances throughout the negotiation process. Identifying and being realistic about these non-negotiable needs or goals is critical to the development of the delegation’s overall goal setting and strategy.
Assessing And Anticipating Goals Of Other Parties
Any analysis of your delegation’s own successes and needs must consider, as realistically as possible, the strengths and goals of the other parties. Charting a course toward the delegation’s goals requires the delegation to know what barriers to expect as a result of the goals and actions of the other parties. This requires the delegation to bring the same critical analysis to the other parties’ position that the delegation brings to its own. This exercise should be done in writing so that the delegation can refer back to it later • Follow the steps of defining success as if the delegation was each of the other parties. • Follow the steps of understanding short- and long-term goals as if the delegation was each of the other parties.
Consider the cultural context of the other parties and how that cultural context will define how other parties view the delegation’s goals. • Evaluate the other parties’ strengths and weaknesses as well as their perception of their strengths and weaknesses. • It is important to recognize that the other parties’ goal setting and decision making may not be governed entirely by logic. Factors such as politics, emotion or personal issues, such as an inordinate sensitivity to being perceived as weak, may influence the process. RED TEAMING The most effective method for engaging in this process is for a small group of your delegation to be assigned the above task for one of the other parties. This role is critical to your delegation’s preparation and ultimate success. The “red team” has an on-going role throughout the negotiations as a way to continually test your delegation’s strategies against the other parties’ positions and tactics.
Identify The Delegation’s Best Alternative To A successful negotiation In setting the delegation’s goals, keep in mind what will happen if the delegation is unable to reach a negotiated solution. The delegation’s best alternative to a successful negotiation sets a standard against which proposed settlements should be measured; it is more flexible than the ultimate “bottom line.” The delegation’s best alternative to a successful negotiation should remind the negotiator that there are other objectives that may be achieved even without a negotiated resolution. • Define the alternatives to participating and achieving a negotiated solution. – It may be that it is not necessarily in your delegation’s best interest to negotiate at all, or even to reach agreement with the other parties. – It is key that your delegation recognize that a negotiation is part of a longer peace-building process. • Prioritize the alternatives. • Determine the best alternatives to a successful negotiation of all other parties to determine each of the other parties’ relative positions in the negotiation. (This is an example of a task for the “red team.”) Determining and evaluating the delegation’s best alternative to a successful negotiation must be accomplished while the delegation is in the goal-setting stage to help the delegation choose the most successful strategy in the negotiation. It will help the delegation determine which short and long-term goals should be prioritized.
A negotiation is an imperfect process. The delegation’s efforts may not result in the process or even the outcome the delegation planned and hoped for. When the delegation does reach the delegation’s goals, it may be later in the process than the delegation expected. The delegation will consider and plan for as many variables as possible in planning for the delegation’s negotiation. When setbacks take place, it is essential to have managed the expectations of the delegation that the delegation does not lose its focus or the delegation’s commitment to its goals and strategies from simple, temporary, and inevitable setbacks.
• Identify whose expectations the delegation needs to manage (the delegation’s own, the delegation’s “constituency,” the delegation’s “citizens”).
• Keep the delegation and the delegation’s constituency well-informed about the goals and the delegation’s progress throughout. • Maintain proper communication within the delegation and to your constituency in order to avoid surprise. – Consider identifying spokesperson(s) within the delegation to manage the information. • The spokesperson might be an outside technical expert. • The delegation might have several spokespersons, each of whom is responsible to particular constituencies or issues. – Every communication should be purposeful. In some cases, it may be premature to disclose certain information. In other cases it may be important to disclose as much information as possible. – Consider that the other parties may disclose certain information before your delegation is prepared for its disclosure. • Outside commentators, such as international news agencies, might be disclosing information and commenting on the process.
Your elegation must take this into account as well, and, where appropriate, use it to its advantage. • Know and manage the delegation’s own emotional and intellectual expectations. No matter what the delegation plans for, there will be unexpected events during the process. Working with the delegation ahead of time and preparing for the likelihood of unexpected events will keep the delegation positive and focused when difficulties arise. There can never be too much preparation for the unexpected. This preparation must take place in advance.
One-Time v. Ongoing Negotiations
If someone else has defined the negotiation as being either a one-time or an ongoing session, then that will define the number or type of needs or goals that the delegation can achieve. This should also lead the delegation to prioritize the delegation’s own needs or goals at the outset. It will not be possible to achieve dozens of goals in one week, but perhaps the delegation can achieve one or two of the goals that are most important to it. • Know the delegation’s time limits and how strict they are. • Know who is controlling the time limitations: is your delegation, another delegation, the mediator? • Prioritize and consider the delegation’s short-term and long-term goals in light of the time limits. As discussed below, time limits can be strategic choices as well as limitations that can lead to more effective ways to achieve the delegation’s goals. In other words, keep in mind that setting time limits could be one of the delegation’s goals in itself.
Chapter 2: Preparation
One of the most important aspects of a successful negotiation is preparation. A negotiation can be won or lost in the preparation phase. If the delegation has already engaged in an internal evaluation of the delegation’s goals, the delegation has completed the first step in preparing for the negotiation. Inadequate preparation can cause irreparable damage to relationships and the possibility of future negotiations with the parties involved. Adequate preparation allows the delegation the opportunity to clarify the delegation’s goals, to familiarize the delegation’s members with the key issues and parties involved, and to identify weaknesses in the delegation’s strategy before the negotiation takes place. By adequately preparing for the negotiation, the delegation is one step closer to achieving success as the delegation has defined it.
Effective preparation can be accomplished only through in-person meetings among the delegation’s members. The preparation should be done in a location where the delegation members can be free from distractions and confidentiality maintained. Do not underestimate the amount of time that must be dedicated to preparation. As a general rule, the delegation should spend at least one day in preparation for every anticipated day of negotiation. As discussed in prior sections, proper preparation requires idea sessions with the group writing each idea down on a board, consultation with outside technical experts (lawyers for example), and “red teaming.”
Designing A Negotiation Plan
A well-designed negotiation plan and an overall strategy are at the heart of adequate preparation. Designing a plan requires the delegation to consider the issues, interests and parties involved in light of the delegation’s goals, and give the delegation the opportunity to develop the delegation’s strategy based on achieving those goals. • Design a plan that addresses any aspect of the negotiation that could affect the delegation’s ability to achieve the delegation’s goals. • An integral aspect of designing an effective plan is the knowledge and understanding of the issues, parties and interests involved (from the delegation’s perspective as well as the perspective of the other parties).
• The delegation’s negotiation plan should include: – A clear understanding of the delegation’s goals. 13
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– The delegation’s strategy to achieve those goals, i.e., a clearly written and defined path for the delegation to achieve its desired outcome. (As always, this written strategy must be kept confidential, and not made inadvertently available to the other parties or the media.) – The structure of the negotiation(s) including: setting, timing and sequence. – Built-in flexibility in the form of alternative plans (in the event there is a change of goals, interests, parties, circumstances, etc.).
The delegation’s negotiation plan should not be too rigid and can (and should) be subject to change up until, and even during, the negotiation itself. The plan should, however, continue to be a point of reference throughout the preparation phase, allowing the delegation to stay focused on not just the delegation’s ultimate goal, but the steps and means necessary for the delegation to get there. As circumstances change and evolve, the delegation must be prepared to alter its strategy and negotiation plan accordingly.
Knowing The Other Parties
The importance of knowing the other parties to the negotiation cannot be overstated. Be careful not to make assumptions in this phase. While your delegation may be very familiar with the other parties, making assumptions about the other parties’ interests and goals can hide the issues, impede the delegation’s ability to successfully negotiate with the parties and prevent the delegation from achieving success. Remember knowing the mediator is often as important as knowing the other delegation(s).
• Learn as much as the delegation can about the other parties before the negotiations commence, based on the timing and circumstances. • Knowing the other parties includes researching the individuals, organizations and countries involved. – Look at each party’s history and the behaviors of the specific delegation representing the other party so that the delegation may try to anticipate their style and how they may approach the negotiation. • Identify the objectives, interests, priorities and goals of the other parties. – Financial interests, political interests, reputational interests, liberty interests, other. 14
The International Negotiations Handbook
Researching Other Parties In order to learn as much as possible about the other parties, the delegation should utilize its personal and professional relationships for information, in addition to using standard research techniques such as the internet and other media. These relationships include local and international agencies, special interest groups, non-governmental organizations, outside technical experts, and the media. As part of this research, it is important to develop an understanding of how the other parties are perceived by and among these various persons. In order to have any real value, this must be accomplished in advance of your preparation sessions. • Understand the mediator’s role. – Prior to the commencement of any negotiation process, it is important that the mediator’s role be understood. Your delegation should have a full and complete understanding of the mediator’s interests and expectations. • Remember that the mediator has its own interests, biases and agenda.
One of the benefits of hiring a lawyer experienced in negotiations is that he or she will typically be familiar with the mediation party. – There are several degrees of mediator’s roles, ranging from merely providing a neutral site for the purposes of conducting the negotiation (a host) to one imposing a resolution on the delegations (a United Nations sanctioned arbitrator).
• Avoid making assumptions. – Ask the other side to identify their objectives, interests, priorities and goals. Listen. – Do not assume that the other side will speak the delegation’s language. • Sometimes it may be useful for the delegation to have its own interpreter even though the other parties believe that none is required – i.e., they believe their language skills are sufficient. Though it is important to be sensitive to the other parties’ wishes, ensure an interpreter is present if the delegation believes that the communication process will be hampered by the lack of a competent interpreter, the delegation should ensure that one is present.
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• If possible, your delegation’s interpreter should be experienced in international negotiations. At a minimum, the interpreter should be an experienced translator. • The interpreter is a technical expert that should be hired to be a part of your delegation. The interpreter must recognize that they are acting on behalf of, and at the direction of, your delegation. • Assess the legal rights and positions of all parties involved. • Evaluate the respective power, as well as the constraints of all parties. – Political, cultural, economic, social, intellectual. • Understand the cultures, customs and formalities of the other parties, and the relative importance of adhering to such formalities. – Formalities can include when, and in what form, the delegation set out the delegation’s “demands.” – Formalities may include the custom of communication in negotiation. • Know and respect the other delegation’s sensitivity points and “breaking points.” – The delegation may be able to get a sense of the other party’s deal breakers by forwarding an agenda in advance of the meeting for their comments.
If the other delegation simply refuses to speak about certain agenda items, that is a good indication that those items are breaking points. – The other delegation may have legitimate breaking points. It is worthwhile to put some effort into finding a way to accommodate their breaking points, if reasonable. Although thoroughly researching the parties involved is essential, the importance of communicating with the other parties and looking at the negotiation from their perspective cannot be overstated. Sometimes, important information can be gleaned from informal conversations. If timing allows, consider having preliminary conversations before the actual negotiation to become familiar with all aspects described above. Setting The Setting: Where To Conduct The Negotiation
In preparing for a negotiation, the setting can make a difference. Using physicality and logistics strategically and understanding how the setting can affect the parties involved and the negotiation itself is an integral part of preparation. By making decisions based on those understandings, the delegation should be able to choose a setting strategically that will help the delegation meet the delegation’s goals. • What setting would help achieve the delegation’s interests? – Determine which aspects of the setting the delegation is willing to compromise, and which the delegation is not. • Evaluate various aspects of the setting and ask how each aspect can help the delegation to achieve a successful negotiation. – Geographic setting. • Home location vs. other parties’ location vs. neutral location – weigh the importance of having all parties feel comfortable against the advantage of gaining or losing a subtle psychological advantage (and potentially leaving the other party at a slight psychological disadvantage).
• Ask whether the location allows for the safety, security and confidentiality of all parties involved. – Accessibility. • Remote location vs. easily accessible. – Ask whether the delegation wants the negotiation to be free from distractions and whether the delegation wants the media to have access. – Does the setting allow each party the ability to confer privately in comfortable surroundings? • Does the delegation want access to the media, or to avoid media scrutiny? • Would the delegation benefit from access to external assistance, such as embassies, consulates, etc.?
• Consider whether the proposed location allows equal access to necessary resources, such as communications, as well as equal rights to travel (such as visa requirements).
– Means of communication. • Identify secure means of communication, including www.hushmail.com, cell phones and “private” meeting areas. • If translators are required, attempt to ensure that the facility has equipment for simultaneous translation. • While keeping in mind what aspects of the setting will help the delegation to achieve the delegation’s goals, consider the setting from each party’s perspective to ensure that the setting chosen will not ultimately impede the negotiation. – The delegation never wants easily-identifiable and easily-avoidable practical issues to hinder the delegation’s “success.” • Determine the most appropriate party to choose the setting. After considering the setting from each party’s perspective, would another setting be more conducive to the delegation’s overall negotiation strategy? Once the setting has been chosen make sure the necessary logistics discussed above are arranged.
Choosing Who Is In The Room
Determining who the delegation places “in the room” during the negotiation and at what phase of the negotiation the delegation has them there can affect the success and ultimate outcome of the negotiation. As part of the delegation’s negotiation plan, consider not only who will be in the room during the actual negotiation, but also who should participate in other aspects of the negotiation, including preparation, communications (internal or external) advising the team, etc. Learning about the other parties in the room is crucial in assembling the delegation’s negotiation team. • What individuals will help our team attain its goals and ultimately achieve success, at every phase of the negotiation? • Evaluate the status of who should be in the room. – The people in the room, from both parties, should be of equal status. – The delegation does not want the delegation’s “decision makers” in the room if the other party’s decision makers will not be there.
• Evaluate at what stage the delegation is in the negotiations. – Preliminary stages or the “deal-making” stages. • When selecting individuals for the negotiation team, consider choosing people: (i) experienced in negotiations; (ii) who are (or can become) knowledgeable about the issues, parties and interests involved; and (iii) who have the desire and means to be involved. • Are there other individuals the delegation should have on the team based on other considerations? – Internal politics, to get “buy-in” from the delegation’s side/from their side. – Are there particular factions of the delegation’s constituency that the delegation wants to have represented on the delegation’s negotiating team in order to ease the process for obtaining approval for any agreements that are reached? – Flexibility and ability to adapt their own beliefs and interests to the needs of the negotiating team. • Consider whom the other side may bring to the room. – Be aware of internal constraints on the other side – i.e., political, cultural. – Determine who on their side has the authority to make deals and/or is the ultimate decision maker. • Recognize any potential or actual personality conflicts among parties. • Establishing personal trust and rapport can have a substantially beneficial impact on the outcome of the negotiations.
Be sensitive to cultural considerations or other issues related to whom the delegation chooses to be in the room. • Never be afraid to re-evaluate the delegation’s representing decisions. Different styles of negotiations may call for different talent, experience and expertise. After considering the above issues, including the stage of negotiation, comparable authority, and the personality and cultures of the parties involved, determine if the delegation wants to reconsider whom the delegation has chosen to be in the room.
It is imperative during the preparation stage that the delegation establishes its roles and responsibilities, which may be influenced by the delegation’s goals. There are several different approaches to the way in which delegations can be structured, from a purely egalitarian structure to a hierarchical structure. States have found that the most effective delegations are those structured in the hierarchical manner. Once the structure is decided upon, determining what roles each member will play within that structure, adequately defining those roles, and explaining to the delegation how the roles fit together will allow the delegation to work together effectively and towards a common goal. It is important that each member of the delegation, including its technical experts, know their role on the delegation and understand their individual responsibilities in the process.
The following persons are recommended: • Decision maker. – The member of the delegation who will be responsible for ensuring that the strategy is implemented and each of the other delegation members fulfill their responsibilities as planned. • Spokesperson. – Generally, there should be one person delegated to speak on behalf of the delegation so as to ensure that a consistent message is being delivered and that the pre-determined negotiation strategy is preserved. – If the other parties or media speak with multiple delegation members, the message and strategy must remain consistent. – The choice of spokesperson may also influence the delegate with whom the mediator communicates on the other side. • Technical person who fully understands the key issues. • Person of influence. • Antagonist (i.e. military or religious figure) if necessary. • Designated member responsible for anticipating the other delegation’s strengths and strategies (“red team” member).
• Interpreter / language facilitator. • Scribe to document everything being said and to note down any physical responses being exhibited by the various representatives of the opposing party. In each case, the size and composition of the delegation should be carefully considered as the delegation may wish to have these people at the negotiation table or the delegation may need to keep them away to meet the delegation’s objectives. Each of these roles should be taken by a member of the delegation, though one member may have several roles. Most states have found that the scribe and interpreter should not hold any additional roles. The delegation should know in advance who the other delegation is bringing to the negotiation so that the appropriate people from each delegation are present and that the delegations are properly balanced. I
t is important to plan in advance for the possibility that there could be a breakdown in roles, where someone fails to “obey their role.” To avoid this, develop a means of communication among the delegation. For example, in the event of a breakdown during a negotiation session, the decision maker may use this as an opportunity to take a break from the negotiation and discuss the matter with the delegation. This way, the delegation may be able to return to its original strategic plan with minimal negative effects.
Choosing A Style
Choosing a negotiation style will help set the tone as well as influence the ultimate outcome of the delegation’s negotiation. Choose a style that the delegation believes is the most effective means to achieving the delegation’s goals. At the same time, only adopt a style that is both natural and credible. • Based on the type of negotiation, the timing and the parties involved, evaluate what style would be most effective in achieving the delegation’s goals. • Think about how and whether the delegation should adjust the delegation’s style to account for differences of culture, gender, personality, etc. • Learn the mediator’s culture, including rituals, styles and customs and consider choosing a style that can accommodate or exploit such customs. • Appreciate the other delegation’s culture, including rituals, styles and customs and consider choosing a style that can accommodate or exploit such customs.
– Some styles that can be effective include those that are conciliatory in tone, those that are more aggressive and harsh in tone, and those that are more neutral. It is sometimes effective to have certain delegation members purposefully assume different styles. • Balance being flexible with the importance of keeping a consistent style in order to gain credibility and trust. • Recognize the needs and constraints within the delegation’s own organization, as well as those of the other side.
Be The Fact And Issue “Expert” In The Room
Regardless of how much time and effort the delegation spends while getting ready for the negotiation, unless the delegation’s members have thoroughly researched and familiarized themselves with all of the key facts and issues involved, the delegation is not prepared. Understanding all of the facts and issues involved in the negotiation is the most critical aspect of being prepared. Do not rely on others to know the key facts and issues involved. • If the delegation’s team has sub-groups, make sure that at least the team leader understands all of the key facts and issues, as well as short- and long-term goals. • Understand what is at stake. Make a checklist of the key issues and facts involved so that in the middle of negotiations, the delegation does not lose sight of important issues on the way to achieving the delegation’s end goal. • Consider internal factors such as: the relationships of the parties and organizational and social structure. • Consider external factors such as: political and economic policies, the international marketplace, geographic locations, resources. • Evaluate other considerations, including: legal factors and moral or ethical concerns. • Remember that third-party experts, and mediators, have their own views, interests and biases.