I find great profit in the study of the art of negotiation.  Where two opposing wills collide, it is essential to understand the dynamics of the interaction, so that one may have some chance of achieving the desired outcome.

When one has conducted numerous negotiations in his career, one begins to see patterns emerge.  These same patterns are also evident on the international stage, when the antagonisms of nation-states find uneasy resolution in dialogue.

Even popular culture can be a useful training tool.  One recent film that did not attract the attention it deserved was Tobias Lindholm’s A Hijacking (2012).  The plot of the film centers around the hijacking of a Danish tanker in the Indian Ocean by Somali pirates.  Anyone interested in the art of negotiation should study this movie carefully.

What to me was utterly compelling was how the dynamics of the negotiations took place between the pirates and the corporate executives.  There was a stark contrast between the apparent “primitiveness” of the Somalis and the “sophistication” of the Danes on the other end of the phone back in Europe.

But appearances can be very deceptive.  For despite the lack of technological sophistication of the Somalis, they proved to be very capable negotiators.  It is an advantage that comes from being the product of a patient culture, one that is not driven by consumerism and instant results.

“They don’t have our western concept of time,” one advisor told the corporate president.  “They are patient, very patient, and cunning.  If we simply agree to the first price they ask for, they will take it, and then claim it to be a down payment for more money.  So we have to play this game the right way.”

Essential to negotiation is the idea of pressure.  One does not simply talk.  And one does not simply fight.  One must both talk and fight.  Pressure must be kept up on the other side in other ways.  Negotiation is simply the extension of the clash of wills into a different venue.  It is not a substitute for fighting, as anyone knows who enters into negotiations from a position of weakness.

One must talk, and fight.  The two things go hand in hand.  During the talks which led to the Paris Peace Accords of 1973 (“ending” the Vietnam War), both belligerents kept up—even increased—unrelenting military pressure on the other.  The better the military situation on the ground, the more chips one side would be able to hold.  Thus the United States kept up its bombing campaign, and the North Vietnamese its ground offensives across South Vietnam.

One subtle negotiating tactic that is used with some frequency is what I call “stacking the deck.”  It is the attempt to “load” the agenda before negotiations even begin.  I am familiar with this tactic because I see it played out in the arena of international politics, as well as in my own profession, the practice of law.  One side will try to gain an advantage over the other even before they both sit down at the conference table.

Consider, for example, the proposals of the Western powers for a “ceasefire” in the current war in Syria.  This is a war that has dragged on for several years, and one that was instigated and prolonged by the West’s client states in the region:  Saudi Arabia and the Gulf states, Turkey, and Jordan.  These states funded, supported, and provided sanctuary to insurgent groups of varying types, with the object of overthrowing the current government in Damascus.

But when Russian and Iranian intervention began to tip the balance against the West’s instruments, and threatened to rout them on the battlefield, suddenly we heard calls for “truces” and “ceasefires.”

These “rebel” groups claimed to want an end to the conflict, but made certain demands before they would enter into negotiations with the Syrian government.  They demanded that the air campaign against them should stop.  They demanded that combat operations should cease.  They demanded that the Syrian president should “step down.”

And so on, and so on.

Thus, they did not seek real negotiations that would end the war.  What they sought was a breathing space.  What they sought was the attainment of their objectives—which they were unable to accomplish by military means—by mutual agreement before peace talks even began!  These ridiculous demands were quite rightly rejected by the opposing side.

Why should the government forfeit the hard-won gains it had made against a ruthless enemy?  If there was a good-faith desire to negotiate, there would have been no preconditions set.  The parties simply would agree to an agenda, and begin talking.

Another good example of “stacking the deck” in a negotiation scenario can be found in the talks which brought an armistice in the Korean War of 1950-1953.  Admiral C. Turner Joy conducted the talks on behalf of the United States.  The opposing sides were the military commands of the People’s Republic of China and North Korea.  All in all, these talks must rank as among the most grueling and complicated in military history.

The Communist forces proved to be extremely tough adversaries.  They were implacable, untrustworthy, and consumed with contempt for their adversary.

But battlefield conditions favored an armistice.

Both sides had exhausted themselves after three years of combat, and each was looking for a way out of the meat grinder.

In his highly readable account of the negotiations, entitled How Communists Negotiate.  Admiral Joy later explained how the Communist forces tried to “stack the deck” from the very beginning:

They seek an agenda composed of conclusions favorable to their basic objectives.  Among men who adhere to logic, an agenda is understood to be only a list of topics to be discussed, concerning which agreed conclusions are later required.  For example, Americans meeting to discuss arrangements for a baseball game might adopt an agenda as follows:

1. Place the game is to be played
2. Time the game is to start
3. Selection of umpires

Communists, however, would submit an agenda like this:

1. Agreement that game is to be played in Shanghai
2. Agreement that game be played at night
3. Agreement that umpires be Chinese officials

Thus the Communists seek to place their negotiating opponents on the defensive from the outset.  If their rigged agenda is carelessly accepted by their opponents, the Communists are able to argue that the only questions remaining are exactly where in Shanghai the ball game is to be played, exactly what tune at night the game is to start, and precisely which Chinese are to officiate.

Notice how the Communists sought these advantages by such procedures at Kaesong.  Consistent with their concept of an agenda as a set of conclusions, the Communists formally proposed the following as the first two items for discussion:

1. Establishment of the 38th Parallel as the military demarcation line between both sides, and establishment of a demilitarized zone, as basic conditions for the cessation of hostilities in Korea
2. Withdrawal of all armed forces of foreign countries from Korea. Nam II supported these two points by simply asserting that they were “basic and inseparable.” He said that withdrawal of foreign troops from Korea was “a basic step toward peace”

Thus the Communist concept of an agenda was a set of conclusions which would restore the situation in Korea to that obtaining before they launched their aggression.  In contrast, note the agenda proposals made by the United Nations Command on the same day in connection with the same two points:  (a) agreement on a demilitarized zone across Korea; and (b) cessation of hostilities and acts of armed force under conditions which will assure against resumption of hostilities in Korea

I consider Admiral Joy’s book to be required reading.  This above example demonstrates how an aggressive and unscrupulous adversary can try to rig the outcome of the negotiations before they even begin.  Therefore, one must always be alert to this sort of tactic when entering a negotiation scenario.

The Communists in the above example sought to accomplish by agreement what they could not accomplish by force.  At the time of their “proposal,” their forces had been in fact driven significantly northward from the 38^th Parallel.

Agreeing to their preconditions would have amounted to surrendering hard-fought territory needlessly.

When crafting an agenda for negotiations, then, one must do the following:

1. Be aware of the balance of power “on the ground.” Know who has the upper hand.  There are times to advance, and times to retreat.  Know when to make concessions, and when not to.
2. Agendas should be set in the most general way possible, so as not to fall victim to “stacking the deck.”
3. When discussing an agenda, do not get into the specifics of the negotiation yet. That is what the conference is for.  Often the other side will try to get you to commit to one thing or another at the very outset.

Consider this exchange between Admiral Joy and Nam Il, the chief negotiator for the North Korean side:

ADMIRAL JOY: When I use the term “agenda” I am referring to a group of items which are general questions general items such as the demilitarized zone.  You, however, are in fact talking about one line [the 38th Parallel] when as a matter of fact there are many lines many possible lines.

GENERAL NAM IL:  We have showed you our line.  What are the possible lines for you?

ADMIRAL JOY:  We do not suggest any line yet because that is getting into the substance of that item of the agenda.

GENERAL NAM IL:  As for a line, we proposed a concrete line.

ADMIRAL JOY:  As I understand it, you do not wish to broaden the question of a demilitarized zone.

GENERAL NAM IL:  May I ask what you imply by “broaden”?

ADMIRAL JOY:  To make it more general.

GENERAL NAM IL: Our proposal is general.

ADMIRAL JOY:  Referring again to your item on the agenda, we cannot agree to have any specific line on the agenda as you propose.

GENERAL NAM IL:  You do not agree?

ADMIRAL JOY:  We will agree to place on the agenda an item calling for the establishment of some demilitarized zone.  The location and limits of that zone can be discussed later when the substance of the item is taken up.  I would like to re-emphasize that the work of this meeting on the agenda is not to determine solutions of problems, lines, etc., but to formulate an agenda in other words, to state the problems to be discussed at later meetings.

GENERAL NAM IL:  We cannot consider the 38th Parallel line as an imaginary line.  The 38th Parallel line had existed and the war broke out on that line.  Therefore, it is the principle that the question of the cease-fire must be concluded also on the 38th Parallel.  Therefore, this must be on the agenda.

In order to comprehend fully the arrogance of Nam Il’s self-termed “agenda,” it is necessary to recollect the military situation as it then existed.  The line of ground battle extended across Korea on the bias, with its western terminus south of the 38th Parallel, and its eastern terminus well north of the Parallel.  This line of ground contact constituted defensible battle positions from which the United States Eighth Army had been launching punishing attacks on the Communists.

The 38th Parallel afforded no such positions.  In the air, the domain of the Fifth Air Force was unchallenged on either side of the ground battle line, except along the Yalu River far to the north.  On the sea, United States Naval forces held uncontested sway to the northernmost extremities of the Korean coast line.

During the spring of 1951, this combination of United Nations Command combat arms had beaten the Communists severely, so severely that in June they sought an armistice.  Communist supplies to the ground forces had been reduced to a trickle by the incessant pounding of the Navy and the Air Force.

It is inevitable that opposing sides will seek every advantage they can gain.  The burden is on us to know what to expect, and to be alert to all attempts to gain an unwarranted advantage.

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