The Problem of Representing a Small-Player in a Multi-Party Mediation

img_0265
Alcazar Palace of Seville, Spain (photo by Marilyn Swanson)

By: Donald L. Swanson

Have you ever been in a multi-party mediation representing a small-player in the dispute. I don’t mean your party is “small”: I mean that your party’s position in the over-all dispute (while extremely important to the client) is viewed by others as a lower-tier issue.

I have. And it’s a difficult situation: other parties are focused on “big” issues, and it’s hard to get traction.

Here’s a story of a negotiator from Spain in an international dispute, showing how it can be done.

An Illustration – Negotiating the Treaty of Amsterdam

Tony Blair addresses this situation in Chapter 6 of his Memoir, A Journey: My Political Life, at 154-155 (Alfred A. Knopf, 2010). He is discussing his mediator role in the Northern Ireland peace process. And he tells a story from his experience as U.K.’s representative in negotiating the 1997 Treaty of Amsterdam. [Fn. 1.]

–Spain’s Negotiator

The story is about the “toughness” of Spain’s Treaty negotiator, Prime Minister Jose Maria Aznar. And it begins like this.

Tony Blair enters negotiations for the Treaty of Amsterdam “just weeks” after “coming to power,” is facing “all sorts of complicating demands,” and is “negotiating hard.” This is his first international deal, and he doesn’t want to “mess up.”

Aznar, by contrast, has a year of experience as Prime Minister and has only “one major striking point.” Aznar needs the treaty to “reflect Spain’s special position” as (i) “the recipient of European support”, and (ii) “a ‘big’ country along with the other ‘bigs’, not a ‘small.’”

This “striking point” is, according to Blair, “a real problem for the other ‘bigs’, notably the Germans led by Helmut Kohl.”

–The Negotiating Problem and an “Old Tactic”

Here’s the negotiating problem: this is a multi-party negotiation, with Spain (as a small-ish party) making a limited demand that is unacceptable to the major disputing parties. How does everyone handle this limited demand?

The major parties try “the old tactic” of “leaving the Spanish demands till last.” The idea is that you settle all other issues and then “put the thumbscrews on the remaining recalcitrant.” The remaining recalcitrant then gets “bullied or shamed into submission” like this:

–“Europe needs you”!

–“How can you disturb Europe’s stability at a moment like this?”

–“Have you no sense of history?”

–“Do you want to be responsible for a European failure?”

Blair describes such tactics as: “A load of old nonsense, but effective in a large number of cases.”

–The Small-Party’s Negotiating Response

But Aznar will neither be bullied nor shamed. The story goes like this.

At the beginning of negotiations, Azner tells everyone the terms of Spain’s “striking point.”

The other parties wait “until everyone had settled” and then offer a compromise that’s “not a bad one but not a good one” either.

Aznar responds with, “no, I told you my terms.”

“Ah, yes,” comes the reply, “but we need to know your bottom line.”

“That is my bottom line,” Aznar replies. Then he adds, “I’m going into the next room to smoke a cigar.” And he promptly does.

“They tried everything,” Blair says. For example:

–“Wim Kok went in and made his disapproval clear in a mildly Dutch Protestant way”;

–“Jacques Chirac tried to lord it over him in a very French way”;

–“Helmut Kohl finally rose to his feet and carried his considerable weight into the next room, looking like a juggernaut in search of a hedgehog” but “came back mystified”: the hedgehog “had inexplicably refused to be squashed”; and

–Kohl then turned to Tony Blair: “’You’re new like him,’ he barked. ‘You go and try.’”

–Tony Blair’s Attempt and Result

So, Tony Blair takes his turn. Aznar holds a cigar, on which he is “puffing away as if he hadn’t a care in the world.” Blair and Aznar dispense with an interpreter and speak French. Blair gives him “a spiel” that includes:

–“how important” the deal is;

–“how this negotiation hung in the balance”;

–“how only he could save the day”; and

–“how truly disappointed everyone would be, especially Helmut, if he didn’t compromise.”

Aznar replies, “with an enormous grin”: “I know, I am so sad.” Then he asks Blair to “give them a message from me.” Here’s the message:

“Tell them I said” at the beginning of negotiations “on what terms this treaty was acceptable to Spain”;

Remind them that, “until now, they never asked me again”;

And tell them that, “if they had” asked, “I would have told them” that those are still “the terms acceptable to Spain”; and

Aznar added, while “pulling something out of his pocket”: “I have so many more cigars to smoke.’

–The Result

Aznar “got his terms.” He, obviously, had confidence in the traction he could get by holding out to the end.

Small-Parties and Their Limited Choices

But not every small-party is so fortunate. Many get run over—and their positions obliterated—in multi-party negotiations.

Small-parties in multi-party negotiations are faced with limited choices on how to proceed. Here are three alternative negotiating positions:

–Take an unbending position (like Aznar did for Spain) and hold out to the end—this is an all-or-nothing approach;

–Take an unbending position for as long as possible and then accept the best deal that’s offered; or

–State an opening position and engage in active negotiations to achieve the best-possible result.

–A Judgment Call

Sometimes (like the story above), the selection among choices is actually imposed upon a small-party by the dominant ones.

Otherwise, the answer on how-to-proceed is a judgment call in light of all known facts. In large part, the judgment call turns on the traction a party can create for its position. And traction turns on the answer to this question:

–How significant is my position for the dominant parties?

–Assessing Traction

Here are some traction-related questions to ponder:

–If I hold out to the end, can they move on without me—or do they need my consent?

–If they can move on without me, how valuable would my consent be to them—and what might I achieve that’s commensurate with that value?

–As a practical or legal matter, what do the dominant parties want or need from me? And what would they be willing to provide to get my consent?

Conclusion

A small-party position in a multi-party mediation is difficult and tricky to manage. A clear view of what the dominant parties want and need from the small-party is key to making a sound judgment on how to proceed.

Footnote 1: The Treaty of Amsterdam amends the 1992 “Treaty on European Union,” and “Her Majesty the Queen of the United Kingdom of Great Britain and Northern Ireland” is a signatory. The Treaty of Amsterdam begins with these declarations: (i) “CONFIRMING their attachment to fundamental social rights,” (ii) “DETERMINED to promote economic and social progress for their peoples,” (iii) “RESOLVED to implement a common foreign and security policy,” (iv) “RESOLVED to facilitate the free movement of persons, while ensuring the safety and security of their peoples,” and (v) this is “a new stage” in “creating an ever closer union among the peoples of Europe.”

** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Blog at WordPress.com.

Up ↑

%d bloggers like this: