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Why Brexit negotiations will fail

by Matthew Rushton on 29 Nov 2016

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Brexit negotiations present a soup of toxic ingredients familiar to any commercial mediator: high stakes, high emotions, personality clashes, lack of preparation, restricted time and a misconceived negotiation strategy.

At stake is the world order that has kept the peace in Western Europe for seventy years. The EU’s founding premise was to bind France and Germany in so tight an embrace that they could never again raise arms against each other. The Brexiteers are far from unified, but reject the status quo. At their outer fringes they rejoice in the possibility that Brexit could trigger the EU’s ultimate destruction. Their vision is a Europe of disaggregated independent states, with strong borders and restrictions on free movement of people.

The backdrop to these competing visions is emotional and antagonistic: threats of civil disobedience, coupled with a surge in hate crime and the murder of a Member of Parliament, hint at the likely social cost of an unsatisfactory outcome to negotiations. The economic cost of failure is likewise grave, and would fall disproportionately on the UK where lower investment, lower productivity, higher inflation and increased government borrowing could impact generations as yet unborn.

What will Brexit mean?

The scale of the challenge is almost incalculable and the negotiable parameters myriad. Nevertheless, political debate has seldom risen above emotional invective as complexity is denied and expert opinion derided. Most dangerously from the point of view of negotiation strategy is the UK government’s failure to articulate a plan. The referendum delivered a democratic mandate, but no negotiating parameters.

With credit to @IanDunt, below is a non-exhaustive list of options to be negotiated, and issues on which the government has, to date, remained silent:

  • Leave the EU and stay in the single market and the customs union.
  • Leave the single market but stay in the customs union.
  • Stay in the single market but leave the customs union.
  • Leave all three.
  • Leave with a trade deal.
  • Leave without one.
  • Join the European Free Trade Association and stay in the single market.
  • Join the European Free Trade Association and leave the single market.
  • Leave everything but maintain all existing policing and security arrangements as well as European coordination on disease control.
  • End every single aspect of European cooperation and retreat behind the cliffs of Dover.

In order to keep its negotiation strategy in relation to these matters confidential, the UK government has fought through the courts to argue (to date unsuccessfully) that the executive has the constitutional right to trigger Article 50 of the Treaty of the EU under the auspices of the Royal Prerogative. While some believe that the Government’s anxiety about involving Parliament is to conceal rifts in the Cabinet and the absence of a plan, it is also consistent with a zero sum approach to negotiations. Such an approach, on all available evidence, will fail.

The Government is on the attack and views negotiations as a fight it must win. Implicit in its approach is the mistaken belief that any gain in negotiations represents a loss to the counterparty, and vice versa. The result will be an unnecessary narrowing of the playing field and the reduction of negotiating process to a mere power struggle. With hubristic optimism, Brexiteers believe that they are the more powerful party, and that what negotiation theorists call positional bargaining will achieve “the best possible Brexit”. What it will more likely achieve is a weak and ugly compromise as the UK’s negotiating position diminishes sharply as the two-year negotiating deadline approaches. Such an ill-founded strategy also increases the likelihood of securing no deal, as any commercial mediator can attest.

The UK Government’s determination to make the negotiations a mere contest of strength is evident in its oft-stated refusal to provide Parliament with a “running commentary” on the deal it seeks. This too flies in the face of established negotiation theory and abundant practical experience. The apparent purpose of such secrecy is to outwit the counterparty: to wrong-foot and deceive. These are ambush tactics, consistent with a zero-sum mentality. Far from being the silver bullets that the government hopes will devastate EU negotiators and lead them to sign a deal in the UK’s favour, the evidence is that surprises will only frustrate and delay a mutually satisfactory deal. As well as being wrong in principle, the practical effect will be to further weaken the UK’s position as the two-year cliff-edge looms. Unlike the UK, the consequences of no deal for the EU are significant but not devastating. The option to walk away when confronted with surprises does not, therefore, favour the UK.

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Brexit through the lens of commercial mediation

Again, some central precepts of commercial mediation inform the debate over the merits and demerits of secrecy. Where mediators often succeed is in generating an atmosphere of trust between the parties such that they feel comfortable divulging “interests.” By shifting parties away from a positional mindset (“the law says X, so I’m entitled to Y”) to interests-based negotiation (“I really need Z in order to sign a deal”) dialogue is enriched and the scope to strike a deal expands. Without an exploration of interests, negotiation is little more than posturing and climb downs, and the prospect of achieving a mutually satisfactory deal is incomparably diminished. By contrast, the earlier and more robustly such interests are explored, defined and reality-checked, the greater the likelihood of a deal.  

It follows, therefore, that public scrutiny of negotiating priorities in Parliament would not only strengthen government’s mandate, but begin to generate a constructive dialogue concerning genuine needs and wants, rather than exaggerated positional claims. By doing so, the debate could be depersonalised, becoming tougher on the issues and kinder to the people. By sparing the protagonists the ritualised humiliation of political demagoguery and lowering the temperature of public debate, divisions could be bridged and progress achieved.

A team of independent and impartial mediators could, and in my view should, help structure negotiations, elevate the quality of debate and train negotiators' focus on the broad acres of common ground. That would be a pragmatic, reasonable and inclusive response to a challenge of the utmost gravity.

But politics seldom embraces these values, except in rhetoric. Political discourse is inherently and increasingly adversarial, ideological and divisive. The referendum campaign demonstrated the unconscionable extent to which either side will exaggerate to achieve its ends, and while extreme positions may have proved persuasive on the political battlefield, taking such a strategy to the negotiating table will fail us all.

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Topics: ADR

Matthew Rushton

Written by Matthew Rushton