BREXIT REVISITED: AN UNMEDIATED DISASTER
4-5 Mediation Group’s Iain Christie is a barrister, mediator and former FCO legal adviser who has conducted negotiations on behalf of the UK at the Council of Europe, EU and United Nations. He is Secretary of the Civil Mediation Council and Vice-Chair of the Bar Council ADR Panel. The views expressed are his own.
In March 2017, just before the Government gave notice under Article 50 of its intention to leave the European Union, I posted an article on the Bar Council Direct Access Portal on how basic mediation principles could help the UK successfully navigate its way through the process. Failure to understand and follow these basic principles has directly led to the current situation in which the UK may simply be unable to implement the decision made in the EU Referendum held in June 2016. This article looks at what went wrong and the lessons to be learned for those representing parties in a mediation.
Authority to settle
The first principle I referred to was the importance of having the real decision-maker present at the mediation or at least of obtaining prior delegated authority to settle on agreed terms from the ultimate decision-maker. Failure to agree in advance an outcome that would command support from a majority of the UK Parliament has resulted in the Government negotiating a deal which (at the time of writing) cannot be implemented. The need to obtain cross-party support should have been apparent to both sides from the moment the Government lost its majority after the 2017 election (the one event which I did not predict when writing in March 2017!).
Whilst the UK Government rightly gets much of the blame for this in the British media, fault lies equally with the European Union for not having foreseen this eventuality. The lesson for a party to a mediation which doubts whether those attending for the other side have authority to settle is to work with the mediator to agree a process which will ensure that any settlement reached will be approved by their decision-maker before you begin the mediation. If that is not achieved to your satisfaction it is best to withdraw. There is absolutely no advantage in negotiating a favourable deal (which is what many say the European Union has done) if it cannot be brought into effect. That is just a waste of everyone’s time and effort, on both sides.
Another problem associated with failing to obtain authority to settle prior to reaching agreement is the inability to obtain any meaningful change to a negotiated outcome. In my earlier article I wrote “imagine being on [the other] side of the table …, to be told at the thirteenth hour that some aspect of the deal on which you thought you had finally reached agreement was now no longer acceptable.” This is exactly the position the EU now finds itself in and why it has said that the negotiations in respect of the Withdrawal Agreement are closed. Furthermore, a party which finds itself in this position is very unlikely to trust the other side to negotiate over anything else in future without a different process, and probably different negotiators, being in place.
Best Alternative to a Negotiated Agreement (“BATNA”)
The second point I made was that, unlike in most mediations, the BATNA to the withdrawal negotiations was certain: two years after giving notice under Article 50 the entire body of EU Treaty law ceases to have effect, unless some other arrangement is made. This, I suggested, allowed both sides plenty of time to prepare for that eventuality so that after two years “it will be possible to make some assessment as to whether exiting on those terms is better or worse than the offer on the table at that stage.” By failing to prepare adequately for leaving without an alternative arrangement, the UK Government has left itself in the weakest possible negotiating position.
Furthermore, the Government talked up the risks of leaving without a deal to such an extent that the threat of doing so became meaningless. It was forced to do that because it had put its primary effort into negotiating an agreement and could not countenance any other outcome. The degree of fear of the consequences of leaving without a comprehensive agreement has become so great that Parliament ultimately legislated to prevent it. Unless that legislation is amended, it will not be possible to unilaterally implement the result of the Referendum even if every conceivable measure has been taken in order to ensure that UK can function effectively outside of EU Treaty law.
The lesson for parties to mediation is to prepare in advance by giving as much attention to what you will do if you cannot reach an agreement as to what kind of settlement you hope to reach. The former is more within your control than the latter. That way you will not feel under undue pressure to accept any settlement that is offered. You can still expect to be reality-tested by the mediator as to how likely you are to get the alternative outcome you predict, but the more thought-through and detailed your plans are for that eventuality the more weight they will carry with the other side.
The third and final point concerned the effects of the withdrawal negotiations being time-limited, given that Article 50 imposes an outcome if an alternative agreement is not made after two years. Applying a variation of Parkinson’s law (with which experienced mediators will be familiar) I stated that “the process will generally use up the entirety of [the allotted] time – and possibly a little more.” I predicted that “negotiations are likely to be going on till midnight and beyond on the final day.” That is precisely the period we are in now just after 29 March 2019 whereby the Government has been forced to request a series of short extensions to the deadline because it is not willing or able to leave without an agreement.
Extensions to time-limits in mediation are usually discussed with the parties at the end of the allotted time and a joint decision made guided by the mediator’s assessment of whether devoting more time to the negotiations at this stage is likely to be productive. Sometimes it is and sometimes it isn’t. The absence of any third party neutral facilitating the UK-EU negotiations makes it very difficult to have any objective assessment of what more time will bring. This makes it even harder for the parties to know whether, and if so, for how long they should prolong the negotiations.
The other difficulty in the current situation is the power imbalance which the UK has created by its own inept negotiating strategy by being seen to be at the mercy of the other side in having to request those extensions, rather than it being a joint and equal decision. Others have commented on the tactical error in agreeing the EU’s sequencing of the withdrawal negotiations before starting future relationship talks, and the mere fact that all discussions have been held in Brussels, the seat of the EU’s negotiators. This has created a very tangible sense of the UK having to dance to the EU’s tune and go “cap in hand” to request more time. Parties to a mediation should always think carefully about these process points and whether a neutral venue will not only affect the atmosphere but even the possible outcome of the mediation itself. Mediators themselves have an over-arching duty to ensure the parties are treated fairly and to create, as far as possible, a level playing field.
Putting to one side the motivations of the parties and those influencing them, as a pure exercise in achieving a clear and unambiguous objective - namely the exit of the UK from the European Union - the conduct of the UK-EU negotiations has been an object-lesson in how not to proceed. Of course, had the process been managed and facilitated by a neutral third party, many of the tactical and procedural errors would have been identified and most likely removed. But even an understanding of these basic mediation principles by the participants, without a mediator, might have avoided the worst of them.
Instead the negotiators on both sides have walked into a series of elephant traps which has resulted in a bizarre situation. It is now very possible that the decision made in the referendum in 2016 to leave the European Union may not be able to be implemented, without there being a fresh mandate. Of course, there are some who say that this has been the intention of the EU and those in the UK who were on the losing side all along. I make no comment on that as I am only interested in the process and the consequences of not following procedures that are proven to be effective in delivering an objective.
In my earlier article I compared, as others have done, the UK’s departure from the European Union to a divorce. I stressed the need to distinguish the decision to leave from the arrangements that need to be made in order to separate. Pointing out the consequences of confusing the two, I said “if a couple who have decided to get divorced are unable to agree the terms of any settlement, they do not as an alternative decide to remain married.” To continue that analogy, if the UK does decide to change its mind and remain in the European Union, it cannot do so on the same terms as before. If a couple who are on the brink of splitting up instead make a decision to stay together, they have to accept that the relationship they used to have is over. They need to re-contract into a new relationship and address all the issues which led to their decision to divorce in the first place. If they do not do that it is very likely the same issues will arise again and within a few months or years they will be commencing divorce proceedings again.
Above all, they would be very well-advised, whatever they decide, to engage an experienced mediator to facilitate their discussions and hold in place a process which maximises the chances of a successful outcome. The fact is that mediation succeeds where negotiation fails.