Encountering Peace: Negotiating

The most complex negotiations are often conducted by a third-party mediator. When the gaps are really large, it is essential that the mediator controls the process.

July 3, 2013 21:55
Kerry and Abbas in Ramallah, June 30, 2013

Kerry and Abbas 370. (photo credit: REUTERS)

It does not seem reasonable or logical to me that the Secretary of State of the United States sat for 16 hours with Palestinian Authority President Mahmoud Abbas and 15 hours with Prime Minister Binyamin Netanyahu and all they talked about was how to open negotiations.

What did they have to say in 31 hours of discussions? It is true that neither side has any trust in the other, but it certainly should not take 31 hours to figure out how to open negotiations.

Unless, of course, the time was used more sensibly, and not only for opening negotiations, but for actually beginning to negotiate. That is what I would do if I were the mediator.

It was secretary of state Henry Kissinger who first coined the term “shuttle diplomacy” as he went back and forth between Israel and Syria to work out a separation of forces agreement.

President Jimmy Carter perfected the art of shuttle diplomacy, cutting the distance between the parties by bringing them both to Camp David. With prime minister Menachem Begin in one barracks and Anwar Sadat in another, Cater and his team went back and forth with proposals until they came out with the Camp David agreement that led to Israeli-Egyptian peace. You don’t have to be in the same room to negotiate.

The most complex negotiations are often conducted by a third-party mediator. When the gaps are really large, it is essential that the mediator controls the process. This is necessary so that the negotiations can focus on substance and not on process. The underlying assumption is that the parties do not trust each other. They probably have a lot of good reasons not to trust each other. But they both trust the mediator, and that is enough collateral to begin a negotiation.

The negotiator will spend a lot of time mapping out the conflict – clearly identifying all of the issues as both sides see them. The mediator will try to understand the positions of the parties but will put a lot more attention and focus on understanding the parties’ needs, interests, fears and threat perceptions. Positions can change in the course of negotiations, interests and needs have to be met.

One of the problems in conflict negotiations where there is clearly one very strong side and one very weak side is that the weak side tends to focus on principles while the strong party would prefer to focus on details.

The principles might be related to specific terms of reference for negotiations while the details might be specific security measures, for example.

The language of principles and the language of details are two separate negotiating languages and the mediator must find the bridge between them.

Sometimes the best approach is to simply begin to deal with substance.

Principles can often be dealt with in preambles and in the opening sentences of an agreement – all of the “whereas” and “based on” texts are meant to serve the need to provide terms of reference and principles.

Sometimes, particularly in the case of the US secretary of state, guarantees can be offered by the third party that certain issues will be taken care of later in the negotiations, or that certain outcomes of the negotiations will be achieved. This can be done by a side letter or a direct commitment to the party making the demands without having it be officially part of an agreement between the two parties in conflict.

Sometimes when the gaps are so wide it seems impossible to bridge them, the mediator could ask for “deposits.” This is what secretary of state Warren Christopher did with prime minister Yitzhak Rabin. For instance, it could be possible for the secretary of state to propose that the Palestinians answer the following statement in the affirmative, on the condition that he does not disclose it to the Israelis until the right moment: If you achieved your primary national aspirations and the agreement answers your basic needs on all of the issues being negotiated, would you be prepared to recognize Israel as the Jewish nation state? This is significantly easier to achieve than is making a demand for what is seen as a substantive concession before achieving primary results.

That kind of deposit is a very valuable asset for the mediator to bank as a “trade-off asset.” The most effective way of using these and other “bankable” assets is for the mediator to be the drafter of the text, and for the negotiations to be conducted with a single text. The mediator can request the parties submit written proposals of their ideas to present to the other side, but it is the mediator who receives the texts from both parties, without sharing them, and can then use them for drafting the single text document which is then shared with the parties.

It is the mediator’s text which becomes the focus and not the position papers of the parties. The mediator’s text is already drafted with bridging proposals in them. It then becomes much easier to make adjustments in the text without having to directly take issue with language drafted by the adversaries.

It is essential that the mediator develop a trust-building process between the parties as negotiations progress. Part of that might be, as Secretary Kerry seems to be doing, putting forward actions that can immediately improve the environment.

These things might be economic development support, releasing prisoners, upgrading security coordination and cooperation, enabling professionals from both sides to meet to address past outstanding issues – such as directors of various departments in the respective ministries of finance (as happened on Tuesday this week).

It is also possible for the mediator to seek small agreements on issues which are not of great consequence but demonstrate the ability to agree.

I may be off-base in my assessment of what is happening in the Kerry mission but I would be surprised if my assessment was completely wrong. Something is happening which is more than what has been reported so far. That is how it should be. Negotiations must be in private, as secret as possible, with as few leaks as possible. Agreements can be reached between the parties with Kerry’s assistance, but they cannot be pre-negotiated by the public.

We have to trust the leaders to reach an agreement – that is what we need them for – afterwards it will be the turn of the citizens to add our voices of support for a good agreement and a job well done.

The author is the co-chairman of IPCRI, the Israel Palestine Center for Research and Information, a columnist for The Jerusalem Post and the initiator and negotiator of the secret back channel for the release of Gilad Schalit. His new book Freeing Gilad: the Secret Back Channel has been published by Kinneret Zmora Bitan in Hebrew.

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