What Negotiation Theory Tells us About How the EU has Handled Article 50

A little bit of theory

Roger Fisher & William Ury’s model of principled negotiation developed in the early 1980s as a different way of understanding and practising negotiation. Typically, people think that you have to be tough and inflexible in order to break the other side and make them do what you want, otherwise, you will only find agreement by being completely flexible and making all the concessions.

Fisher & Ury’s big insight was that there was a middle way through these two extremes, one that focused on what you do, rather than how powerful you might be. Not only was that good if you’re weak, but it also should produce better outcomes for everyone.

Those better outcomes are what they term a ‘wise agreement’, which is one which meets the interests of each side as far as possible, is fair and lasting and doesn’t worsen the sides’ wider relationship. Importantly, this all suggests that negotiations aren’t about ‘winning’ or ‘beating the other side’, but rather about exploring options to solve problems.

How principled is the EU?

All of this is useful in understanding how the EU has performed to date in Article 50, especially at the political level. The contrast between the British and EU sides in the negotiations has been one of the most striking features of the period since March 2017, alongside the differences between the technical discussions between the two sides – which have run largely very smoothly – and the much-more fraught strategic level. In short, British politicians seem to be the ones struggling most, so perhaps something might be learnt from their counterparts across the table.

The easiest way of doing this is to work through Fisher and Ury’s core propositions of how principled negotiation works, to understand better how that explains the EU’s words and actions.

Interests, not positions

At the centre of the principled negotiation model is a clear distinction between interests and positions. The former are broad needs that shape the ‘why’ of negotiating, while the latter are specific and defined expressions of those interests. If you’ve even haggled with someone, then you’ve traded positions (on price) that express your underlying interests – saving money, if you’re the buyer; making a profit, if you’re the seller.

The reason for the distinction is firstly that interests can be addressed in various ways, whereas positions cannot; so if you’re looking to create some space, then this can help. But more importantly, it’s necessary to understand what everyone wants from the negotiation. That means knowing what you’re trying to achieve, and what the other side is aiming for: without those two elements, you risk finding an agreement for its own sake that doesn’t actually help anyone.

This is very clearly seen in how the EU has presented itself in Article 50, in a number of ways.

From its earliest pronouncements, and through all its strategic documents, you’ll find examples of this interest-based approach, not least in the way it frames the Brexit process as being an existential challenge to the Union itself. For all the major players on the European side, the priority has been to defend the value of membership.

Internally, that has meant reminding other member states and publics of why staying in the EU is preferable to following the UK out: the fears about ‘contagion’ might not now be as strong as they were immediately after the referendum, but they still exist. Externally, it has strengthened and legitimated the ‘no cherry-picking’ line, to show the UK that rights have to be balanced by obligations, and so it cannot expect to have all the benefits with none of the costs.

We can also find this interest-driven approach in the more successful examples of individual member states getting their priorities uploaded to the EU level. Most striking, part of Ireland’s diplomatic success in getting minds focused on the implications for its border with the UK has been because it has presented Brexit as a threat to the functioning of the union’s single market, which defines much of what the EU is about. By invoking the principle of loyal cooperation, which requires member states to work to help each other, the Irish government has found further broad interests that have incentivised other small members to speak up in support, just in case it’s them next time.

Separate the people from the problem

The second big idea from Fisher and Ury is to avoid getting sucked into the drama of personalities; you’re trying to solve a problem, not a person. Quite aside from minimising efforts to be manipulative, it also puts you on the same side of the table as each other, working together to find a good outcome.

Here, the European Union has tried to follow through on this by avoiding making comments on UK domestic politics, or on individual politicians. That’s not always happened, as when briefings were made by Commission officials following the dinner in October 2017 between Theresa May and Commission President Jean-Claude Juncker, but even that saw much negative comment from other member state capitals.

Despite the presence in the EU’s lead group on Brexit of several individuals with a history of opinions that they are keen to share with the world, the line has been a relatively consistent one: they might not think the UK made the right choice in the referendum, but they will respect and work to that agenda.

Generate options for mutual gain

As has been mentioned already, using interests allows for more flexibility; there’s more than one way to skin a cat, especially when it comes to political deal-making. Article 50 is an excellent demonstration of this, if only because of the very many different elements and aspects that it contains and shapes. Two examples highlight how the EU has used this idea to create more space and increase the chances of finding an outcome that is acceptable to all involved.

The first is the interim set of proposals on the Irish dimension. Agreed in December 2017 with the UK, this established a set of commonly-held principles, together with three options for achieving them: either the UK and EU would agree a deal that avoided the need for re-imposing border controls, or they’d find technical solutions to make those controls non-intrusive, or Northern Ireland would align itself with EU’s regulations, enough to make controls unnecessary. Even though the EU only considers the last to be genuinely viable at this stage, it does reflect an effort to leave the door open to alternative approaches, although that relies on the British government working them through.

The second can be found in the way that the question of finances was handled. Originally seen as one of the major sticking points in Article 50, it has actually turned out to be one of the first to be concluded. A key part of that was the decision to avoid any mention of specific amounts of money: instead the discussion was framed entirely around the principles and logic of calculating and including specific liabilities. This also suited the UK, as the one having to make the payments and justify it to the press and public. Even at this stage, with the formulas largely agreed, it is very difficult to work out the actual sums involved, which might not be very transparent, but which has helped grease the wheels of the wider process.

Use objective criteria

Fisher and Ury often suggest trying to find benchmarks outside a negotiation as a way to increase fairness and equity: if you’re buying a car, being able to point to a similar listing elsewhere on a website should get you further than just your opinion of what it’s worth. So too here, particularly as no one has tried to leave the European Union before.

And this is the first major example of using objective criteria in Brexit: following Article 50 itself. While some in the UK talked of cutting out a new, speedier procedure, the EU has always pointed towards its treaties as the source of what happens and how, not least since the UK itself signed up to these. That might seem a bit self-serving – Article 50 essentially gives the EU the power to decide what to offer the UK, rather than the UK being free to decide – but the alternative of an immediate rescinding of membership would have given the UK even less leverage.

The Irish dimension has also seen the same approach, with the Good Friday Agreement – another document signed by the UK – being pressed into service to shape the range of possible outcomes, reminding London of its commitments. Likewise, even the World Trade Organisation (WTO) finds its rules being used by the EU to remind the UK that there are still obligations that ensue, should the British go down the hard Brexit route.

Know your BATNA

Finally, Fisher and Ury make the oft- overlooked point that sometimes the best option in a negotiation is not to agree. Instead, you might be able to achieve more outside the negotiation. But to do that, you have to know what your Best Alternative to a Negotiated Agreement (BATNA) might be. And for that, you need to know the costs and benefits of all your options.

Here the EU has put a considerable amount of resources, both in Brussels and in national capitals, to map out the implications of different scenarios in Article 50: several governments and Parliaments have produced quite detailed public reports on this, in contrast to the secretive British approach.

This has helped bolster EU support for finding an agreement, since the calculations look rather favourable to the Union. While there would be a cost to the EU of not agreeing a deal, that cost would be much bigger for the UK, so the working assumption has been that London will eventually realise this and begin to work towards finding an agreed outcome. And this has indeed been the pattern of the past 12 months.

While the British line that ‘no deal is better than a bad deal’ always sounded hollow to European ears, the willingness of European stakeholders – German car-manufacturers, for example – to give up access to the British market in exchange for maintaining the rest of the EU’s internal market has been a more plausible view, at least outside of the UK.

The EU as a negotiation

Taken as a whole, the European Union looks a lot like a model performer as a negotiator. In part that’s because it is itself a negotiation, a permanent set of discussions and debates between its constituent parts. Across Brussels and all the national capitals there is an extensive network of individuals, organizations and governments practising their skills every day, both with each other with third parties. That makes for a deeply internalised process that places it in a relatively favourable position, even before any of the other, more specific factors are taken into account.

That the UK has struggled with all of the five propositions outlined above, has only helped make things easier for the EU. At a political level, the British government remains unclear about its purpose for leaving the EU, fails to suggest detailed proposals or to know clearly the implications of different outcomes, and has been known to speak less-than-flatteringly about those on the other side of the table.

Indeed, the success of the EU’s approach has had the effect of reinforcing that approach: why challenge something that seems to be working so well? The degree to which all 27 member states have kept in close step with the EU on Article 50 has been very striking indeed.

But some clouds do loom on the horizon. As happens in any negotiation, some of the tougher questions have been left until last, so the effectiveness of a principled approach has still to be tested to its limits. Similarly, as talk moves from Article 50 to the future trading relationship, the EU might find it harder to keep its unity, as the existential threat is removed and narrower economic calculations move in.

However the biggest question mark for the EU isn’t itself, but its negotiating partner; the UK. Negotiations need two parties and if one side is unwilling or unable to play its part, then finding a ‘wise agreement’ will become very difficult indeed. If the first year of Article 50 has been tricky, then the second might prove to be very much more so.