NEGOTIATION LESSONS FROM INTERNATIONAL TREATIES

INTRODUCTION

I recently had the opportunity to visit the Smithsonian National Museum of the American Indian in DC. I went specifically to see an exhibit that I was told about called "Nation to Nation: Treaties Between the United States & the American Indian Nations". From a negotiation scholar perspective, I found it not only enlightening from the US historical standpoint, but perhaps even more so from an international relations standpoint and specifically a better understanding of international treaties and treaty negotiations.

One insight that emerged for me during that visit was the difference between an agreement and a treaty. An agreement is a legal document which states and defines legal obligations, considerations, warranties and covenants between the parties, and is sustained by the rule of law and enforced through judicial consequences. (Or in cases of international law, by the United Nations charter and the International Court of Justice). A treaty, on the other hand, is not only a legal agreement, but goes way beyond that, in that it also defines the desired relationship between the parties. It is sustained not only by the rule of law, but moreover by trust, honesty and integrity. In addition to being a legal agreement, it is also very much a moral one too.

What further struck me in seeing that exhibit was how differently the United States viewed treaties as compared to the American Indian Nations.

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THE VALUE OF TIME, PATIENCE AND PERSEVERANCE IN NEGOTIATIONS

I recently mediated two very difficult disputes in which not only did the disputants themselves believe that any resolution was eternally elusive (not uncommon), but even I, as mediator had very little hope (very uncommon)! It appeared that the parties were about to terminate mediation on numerous occasions, when one or the other stormed out of the mediation session, threatening onerous law suits on their way out.

Ultimately, to my astonishment, both disputes were not only resolved to the satisfaction of the parties, but relationships were restored to some extent as well. In my post-mediation debrief, I realized that key factors that helped to advance resolution on these seemingly intractable conflicts between apparently intransigent disputants, was time, patience and perseverance.

Consider the negotiation between a buyer and prospective seller over the purchase of a piece of real estate. The seller was resisting any offer the buyer was proposing despite displaying a clear intent in wanting to sell.The buyer perceived the seller to be greedy, unreasonable and unrealistic, and assumed her motivations were entirely money driven. The negotiations were at an impasse. The buyer, faced with this impasse, was at his wits end and about to walk away from this deal.

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DID ENGLAND SLEEP - THE SCOTTISH INDEPENDENCE REFERENDUM IN A NEGOTIATION CONTEXT

INTRODUCTION

Today, the Scottish people go to the polls to vote a "YES or "NO" on the secession of Scotland from the United Kingdom. Either outcome is wrought with serious problems. If the vote is "NO", a large portion of the Scottish population will feel resentful knowing that this might be the last opportunity for generations, and demonstrations and riots are not out of the question. If the answer is "YES", there will be resentment on the part of England. This will be very serious for Scotland too, as there will still be many complex issues to negotiate with a resentful Westminster as a partner.

These issues will include; currency union; banking and financial services; Scotland's responsibility to the UK's national debt; National Health; European Union membership (currently Scotland is a member only by England's shirttails); borders and immigration; monarchy; and defense (involving amongst other things, the UK Trident nuclear deterrent currently based in Scotland).

These negotiations are likely to take a minimum of two years and will be acrimonious and messy. Did England sleep instead of preempting and possibly averting the current crisis?

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NEGOTIATION, THE CASE OF THE PRISONERS' DILEMMA AND THE POWER OF EFFECTIVE COMMUNICATION

THE CLASSIC CASE OF THE PRISONERS' DILEMMA

Ganavia and Gezlique have been arrested for robbing the Mamonia Savings Bank and placed in separate isolation cells. Both care much more about their personal freedom than about the welfare of their accomplice. A clever prosecutor makes the following offer to each. "You may choose to confess or remain silent. If you confess and your accomplice remains silent I will drop all charges against you and use your testimony to ensure that your accomplice does serious time. Likewise, if your accomplice confesses while you remain silent, they will go free while you do the time. If you both confess I get two convictions, but I'll see to it that you both get early parole. If you both remain silent, I'll have to settle for token sentences on firearms possession charges. If you wish to confess, you must leave a note with the jailer before my return tomorrow morning."

The "dilemma" faced by the prisoners is, that whatever the other does, each is better off confessing than remaining silent. But the outcome obtained when both confess is worse for each than the outcome they would have obtained had both remained silent.

This dilemma is created by the fact that neither prisoner can communicate with the other, and therefore there is no trust or strategy of collaboration. This leads to a sub-optimal outcome of both being convicted and sentenced to a long time in prison whereas had they been able to communicate, build trust and devise a strategy of collaboration they could have both received far lighter sentences.

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DISPUTE RESOLUTION - CHOOSING THE RIGHT PROCESS

Whether you are an attorney advising your client, a company or an individual embroiled in a dispute, it is necessary to understand the different processes of dispute resolution and determining which is the right process for your particular situation.

In ascending order of cost, time and adversity, the various processes for dispute resolution are: Negotiation; facilitative mediation; evaluative mediation; arbitration; and litigation. As we move along this continuum from negotiation towards litigation, the process becomes more costly, takes longer, and moves from diplomacy towards outright war.

In this column, I will address only the cardinal points on the continuum which are mediation, arbitration and litigation. I will explain the processes and when it is appropriate to use each.

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