SUBSTANTIVE NEGOTIATIONS

At the outset of the actual negotiations, you have an interest in projecting confidence, as this suggests a strong BATNA. But you also have an interest in building trust, as these early encounters can be crucial for establishing a rapport with your counterparts and ensuring that they believe you are negotiating in good faith.

Without a minimum of mutual trust and confidence, chances of a negotiated outcome are slim. Explicitly acknowledging the interests and emotions of the other side shows respect and builds trust.

Courteous and polite behaviour also go a long way to establishing respect.

Understanding the mind-set of the other side on the day of the negotiation enables you to adjust your approach accordingly.

How does your counterpart see the overall negotiation and the specific negotiation session? Recent incidents or statements may have influenced the other side’s attitude and posture. Addressing these before moving on to the substantial discussions can clear the air and create a more conducive environment for the negotiations.

Formal negotiations typically begin with the sides making opening statements to present their positions. This is an opportunity to recall the issues, frame the discussion, and define the parameters for the negotiations. The words you use to describe the issues can set a conceptual framework for the process. The agreed procedures can be recalled in order to ensure that they become part of the official record and to avoid any future disagreement. Once the opening statements have been made, the parties are normally invited to respond with a reaction.

The advantage of being the first to make the opening statement is that it allows you to frame the discussion and that it puts the other side on the defensive. The disadvantage is that you are presenting your position without having had the benefit of listening to the other side and adjusting the statement accordingly. Letting the other side go first enables you to gain a better understanding of their positions and their approach to the negotiations.

In text-based negotiations, the parties go through a prepared draft text, such as a statement or treaty, usually prepared by a secretariat or mediator. The draft can also have been prepared by one of the parties, although this can raise questions of whether it is sufficiently balanced to serve effectively as the basis for a negotiation. As a rule you have an interest in providing the texts upon which the negotiation are based.

You and the other side typically go through the draft text line by line from beginning to end. The meaning of each line is discussed and agreed, or alternative language is proposed. If there is no agreement on specific language, the text may be put in hard brackets to be revisited later. When going back over the language in hard brackets, circumstances may have changed or bargains may have been struck over other issues that allow the initially contentious text to be agreed.

A key strategic consideration is whether to approach the negotiation from the general or the specific. Beginning with the

general entails trying at first to seek agreement on principles. These tend to be broad and vague so that they accommodate the positions of all parties. Once there is agreement on such a framework, negotiations move on to specific provisions consistent with the principles or formula.

This top-down approach – beginning with the general and moving on to the particular – is often used if positions are entrenched and far apart. It allows for constructive ambiguity to paper over the core differences. The problem with this approach is that the ambiguity can be so great that the principles lose real meaning. If there eventually is agreement at the general level, problems can begin when trying to reach agreement on the specific.

As the old adage goes, “the devil is in the details.”

Another strategic consideration is whether to begin with the most contentious issues or the least contentious ones. You may have an interest in securing early agreement on the easy issues in order to improve the environment for dealing with the more difficult issues. Agreement on some issues adds pressure to come to agreement on other issues, in particular if the principle that

“nothing is agreed until everything is agreed” is followed.

It is crucial to know when to pause a negotiation. It may be in your interest to have a discussion with the other party that is off the record to resolve a particular issue. Or you may have to consult with your political masters on how far you can go on a particular issue. A break in the negotiations can often provide an opportunity for informal consultations to move a process forward.

Events outside the negotiation can have a direct impact on the negotiations. Circumstances can change and influence interests and positions. It is essential to coordinate closely with allies outside the negotiation room and have an open channel of communication, to influence events and to follow what the other side is up to outside the negotiation room and how this factors into their negotiation strategy.

AGREEMENT

A negotiated agreement is not worth much if not implemented. The mechanisms for implementing the agreement and the consequences of non-compliance can be decisive for whether an agreement is implemented or not. But the negotiation process itself can also be paramount: An agreement is less likely to be implemented if a party does not consider the process that led to it as fair. Your negotiation strategy and tactics play directly into procedural fairness and can therefore affect the implementation of an eventual agreement.

Your relationship with the other side can also influence whether the agreement is implemented or not. If the other side sees no interest in a relationship with you beyond the agreement, the side has less of an incentive to implement the agreement. If the negotiation is part of a long-standing relationship that is likely to lead to future negotiations and agreements, implementation becomes significant for the sake of future credibility. In such a case, both you and the other side have an interest in carrying out the negotiation in such a way as to maintain the relationship.