These wise words from a shrewd observer of recent events resonated this week in Paris at the 14th annual commercial mediation competition for students from universities around the world, hosted by the International Chamber of Commerce (ICC). 66 teams took part from 37 countries, representing every continent and nearly all legal and social traditions. These young people frequently demonstrated negotiation skills and insights well beyond their years and, more importantly, well beyond what we see day today in much public and political life. They recognised that, in order to find solutions to difficult problems, they needed to transcend parochial and polarising positions. They did so with the help of 130 mediators, of which I was privileged to be one, who came from a similarly diverse community of experiences and backgrounds.
I had a mix of emotions. I felt anger about my own generation’s failure to exhibit these qualities in sufficient quantity and for having overseen a degradation of civility and loss of respect in recent years. And about the many examples of really poor negotiating skills which are bequeathing to the next generation a legacy of poor outcomes on major issues. I also felt hope for the future as I watched hundreds of young people mingle together and embrace each other, with so much more in common than ever separates them. We need to encourage this as much as we can, at home and further afield.
Suppose we decided that negotiation skills should indeed be a central part of what every young person should learn? What would a negotiation curriculum include? The ICC provides a set of principles to facilitate commercial negotiation, a modified version of which are of general application and which I reproduce here:
l Prepare carefully: define your objectives, purpose, needs and concerns;
l Be aware of (and explore) cultural and other differences and assumptions that exist;
l Identify and agree a process for negotiation, including where you will meet, who will be there and how you will go about it;
l Allocate the resources you need: time, people and technical;
l Develop a good working relationship with your negotiating partner: engage early, learn about what makes them tick, acknowledge what matters to them;
l Behave with integrity: be trustworthy, mean what you say and be clear about your values and what matters to you;
l Manage your emotions: don’t be provoked, separate the people from the problem, take care with language both written and oral, and recognise how easily we can all default into fight or flight mode;
l Be flexible: think of creative ways to meet each other’s real needs, explore all the options, don’t try to secure an advantage which will seem unfair and lead to later difficulties, and make concessions if these will enhance the prospect of an overall agreement;
l Make realistic commitments: be clear about what you can and cannot do and about your and your counterpart’s actual authority to agree;
l Confirm and review any agreement reached: check it over, is it realistic, comprehensive, durable, specific and clear?
l Be prepared for the situation where negotiations do not succeed. Having an alternative, and knowing the pros and cons of that, will give you a good benchmark for assessing what you can and cannot accept.
This is all good stuff, even obvious perhaps, for whenever we negotiate. For most of us, that will be every day. To test it out, I invite you to take a current negotiation which you have or foresee having. Whether it be a property transaction, employment problem, difficult commercial dispute, family bust-up, business investment, or the future of your country, work your way through these principles as an exercise. What do you learn? What will you do differently as a result? Can you use them to make a difference? What outside help could you call upon? And how can you help the next generation to learn to use these principles well?
John Sturrock QC is senior mediator at Core Solutions