I suppose I could claim to be a leading expert in ‘failed negotiations’, because as a commercial mediator sadly we are too often called in to rescue a negotiation from deadlock, impasse and frustration on all sides.

Organisations and executives are much less alert to calling in a mediator for the constructive end of negotiations, either early enough in dialogue to prevent a conflict arising or to manage it effectively when it does, or at an early point where an independent third party can focus on coaching negotiators on how to enrich a normal negotiation or team effort.

And when you are dealing with collapsed negotiations, too often you can be sure your first advice on entering the situation, is to echo the old cultural refrain associated with Irish travel directions.  Namely, “If I were you, I would not start from here”. Interesting that so much of the Brexit endgame has turned on an Irish backstop which no one appeared to raise until well past the starting point of Brexit negotiations.

And there are so many ways to say that Brexit negotiations could have been different. Here are just a few of them:

  • lack of preparation (a basic in all negotiation tips)
  • lack of a unified negotiation team (Conservative party divisions)
  • failure to involve key stakeholders through building cross-party consensus and participation (essential because the ultimate deal needs parliament’s approval, and because nearly half our population voted for a different overall deal)
  • giving unnecessary extra leverage to the other team (by triggering Article 50 before adequate preparation, thus setting a deadline that is more harmful to us than ‘them’)
  • setting out red-line deal-breakers before exploring interests and testing both side’s sensitive zones
  • failing to use negotiation ‘deep-dive’ process techniques (commitment by negotiators to getting an outcome from a sustained and pressured negotiation session) until late in the negotiation
  • failing to use an international mediator to help corral parties and ensure good conduct and fresh perspective.

And many more. 

Nevertheless, as they say in the best negotiations also, ‘we are where we are’.  And where we are now, appears to be in the Brexit endgame.  Some politicians have been quick to throw in the old negotiation warhorse observation that deals always get done at the last minute, so urge the UK team to hold tight.  That is true but fails to take account of some critical sensitivities.  First, this negotiation is not just about gaps in numbers, but also about gaps in principle.  And principles do not suddenly evaporate just because a negotiation is near the end.  Second, where both parties adopt this ploy, it’s going to increase the cost all round, and reduce the efficiency of the new state intended by both parties.  Finally, there is the ‘random riot’ problem – there is always a random element in negotiation dynamics because of the uncertain mix of ingredients in a complex human situation.  So it is just as possible that a deal will crash in the last stages, ‘by accident’ of chemistry, as it is to be rescued by concessions – particularly where both parties have thrown their steering wheels out of the window by imposing a deadline default exit outcome.

There are probably two alternative ways to end the endgame well if the ‘late concession’ route is going to crash out.  First, the Prime Minister could adopt an alternative mindset of determination to bring parliament to consensus rather than a determination to win support for ‘her’ deal – acting as a ‘mediator’ rather than ‘agent’ of a chosen outcome, in Malhotra’s words.  That would still need selling to the EU but at least a new approach could be done with the confidence of unity.  But it would appear to need a superhuman effort in all the circumstances we have seen and has to be a challenge faced with current time pressures of 100 days to departure. 

Barring that approach, there is probably only one other ‘logical’ route.  Namely, removing the pressure of the Article 50 timetable, either by agreement with the EU, alternatively by the UK unilaterally revoking Article 50 and asking Parliament to set out an agenda of issues to raise in future EU meetings.  This leaves open the prospect of a later trigger once there is a consensus on repeating the process.  ‘How urgent is Brexit?’ is not a question ever put to the British people, but is a parameter that should figure in all the best decisions.

All these approaches have obvious disadvantages, but who said endgame negotiations were ever smooth?

Dr Karl Mackie CBE is CEDR's Founder President and one of the most experienced mediators globally. To learn more about Karl's mediation practice visit his website and to book him as a mediator contact the CEDR Commercial Team on 0207 536  6060 or email adr@cedr.com.