Cloaked Negotiation: Necessary Back-Channel, Under the Table and Surreptitious Strategies and Techniques to Make Deals Work

January 9, 2009

There is little question but that negotiation is a sensible and rational approach to managing conflict. At the same time, the agreements often forged by necessity, frequently defy logic, flaunt precedent and even strain the limits of principle. Anyone in business, management, or engaged in professional practice of whatever nature, has been obligated to make hard decisions and compromise between how things are intended and ideally supposed to work and how they work in fact. This gap can be wide and sometimes appears irreconcilable.

The prevailing expert advice is to approach these matters rationally and directly, an to try to contain or suppress the emotion. But in difficult and complex matters, the anger and frustration is palpable. More often than not, visceral and emotional gut level reactions trump thoughtful problem solving approaches. Despite claims to the contrary, people in general, and even professionals, seldom follow the linear problem solving model they profess. The linear model of “diagnosis (fact gathering), prognosis (assessment), treatment (prescription), cure (fix),” sounds good in theory, but many prefer to start with the answer and press the facts to fit the conclusion, a kind of “shoot first and aim later, approach.”

The first response of most human beings to a perceived or real threat—or for that matter, any animal—-is a neuro-chemically triggered reaction to fight or flee. A reasoned response, such as negotiation, requires a conscious and intentional act to over-ride the visceral response. While it is possible, and even beneficial to use and managing the energy generated by the emotion of conflict, the traditional rational and logical approaches may not be the most effective means. As many experienced conflict managers have come to recognize, the direct approach does not always work well. Telling someone who feels angry, injured and victimized to “calm down, relax, and be reasonable,” may be counter productive and exacerbate the situation.

Curiously, human and animal evolution provides examples of indirect behaviors by which individuals in conflict can manage their emotion and lessen the likelihood of open aggression and allow for negotiation. This is largely accomplished by the grace of guile: constructive forms of deception, both for us and to smooth our dealings with others. (Rue, L., 1994) Negotiators and conflict mediators, being on the front lines and staring directly into those conflict chasms, have come to appreciate the necessity for such deception and wittingly or unwittingly sense when to cloak or disguise their negotiation strategies in order to work a deal.

Each of us struggles to come to terms in our public and private lives, with the harsh reality of what must be done to survive versus what we would ideally like to have happen. This is a difficult lesson to learn, that is never fully integrated, can never be taken for granted, and must be continually re-learned. This may be in part due to the strong and pervasive influence in rational discourse and problem solving. Deeply ingrained in the Western ‘techno-rational’ culture is the belief in the Myth of Rationality, which posits that all problems and difficulties have good answers that can be discovered and that conflicts can be resolved reasonably and directly. In the past, rational thought has been the source of great scientific and technological advancement and remains exceptionally important as an analytical skill set. However, traditional rational thinking may not be as effective for managing conflict, especially in managing complex, politically charged or “wicked” disputes, where the issues are difficult to clarify, let alone the options. Careful and rigorous scientific thinking has always entertained the possibility of multiple truths; too often, however, it is eroded by reductionist ‘scientistic’ thinking wherein people believe there is only one right answer to a problem. The best scientists recognize when straightforward logic and analysis may be limiting their thinking and they need to approach the issue at hand in a wholly different way.

Similarly, experienced negotiators and conflict mediators are forced to continually re-visit the lesson of the limits of logic. They constantly work in the ambiguous terrain between an unrelenting and unforgiving world of ‘zero tolerance’ where rules are seemingly clear and certainty abounds, and the relativistic world of “don’t ask/don’t tell, where in order to survive, rules are necessarily bent or even ignored altogether. Of course, for just that reason, a negotiation process that encourages deal making and the compromise of rules is often suspect and vulnerable to second guessing. The proverbial ‘deal with the Devil’ required to mange difficult circumstances, that seldom satisfies any party completely and is more often than not far removed from Pollyannaish notions of ‘win-win,’ often cannot withstand too much scrutiny on legal or moral grounds. Negotiation is a dirty and risky business. (Benjamin, R.D., 2008)

Most practicing lawyers dread that point in a case where he or she will be required to explain to a client still simmering with righteous indignation over a real or perceived injustice the comparative risks and benefits of settlement versus trial. In many cases, no amount of logic and reasoned argument for a negotiated settlement will be sufficient to meet their feeling of let down. The injustice of being obligated to compromise is only exceeded by a sense of betrayal, often directed toward their own attorney is the messenger or ‘reality.’ Seldom is a client ready to hear what appears to them to be the wholly irrelevant considerations of the politics and ‘on the ground’ realities of the case, including, the proclivities of the particular judge, the habits of juries in the particular venue, the troublesome credibility of a particular witness, or any of the other countless details that could affect an outcome. In the clients’ view, these are less realistic considerations, than they are the simpering excuses of a ‘forked tongue’ lawyer who advocated compromise with the enemy. And if the clients’ attorney is deft enough to avoid blame, a negotiated settlement is proof positive that there is no justice and the legal system is corrupt.

The suggested path of reason advocated by the Harvard Sages of Getting to Yes fame (Fisher, R., and Ury, Wm., 1991), whereby underlying interests and needs were clarified and distinguished from positions, often did not work to counter the emotion. Any reasoned argument for negotiation can be met with a counter argument for further litigation; every logic “A” has an equal and opposite logic “B.” This battle of competing logics is a common blowback effect and incites even greater resistance to negotiation. It confirm that the process is nothing short of compromising, or more precisely, selling out.

Human beings are ‘predictably irrational.’ (Ariely, D., 2008; Kahneman, D.,and Tversky, A., 2000). In fact, suggests Antonio Damasio, a highly regarded neuro-scientist who has extensively studied how the human brain functions, there is no such thing as a ‘cool headed reasoner.” (Damasio, A. 1994) A direct approach will often be met with resistance. Peoples’ ‘irrational’ resistance to negotiation needs to be taken into account in the presentation of it as a viable option.

The frequency with which a deal close to settlement on all the major issues would ‘hit the wall’ or blow up over a detail, such as for example, who should pay the attorneys’ fees, remains a source of amazement. Framed by the client ‘as a matter of principle,’ payment of the other sides’ legal fees becomes a ‘bridge too far,” regardless of the cost/benefit analysis that clearly demonstrated that the continuation of the matter would cost several times more than the fees in question. The principle could, however, can be circumvented with a piece of deception; a side deal. While applicable to most matters, attorneys’ fees are an especially volatile issue in divorce cases where the party who does not want the divorce (typically him), detests more than anything else, the notion of paying for her attorney. However, paying the amount of those fees under a different guise could be acceptable. Paying attorneys’ fees directly is an anathema, as an add-on to the overall property settlement figure, without specific mention, they are acceptable. Despite the blatancy of the subterfuge, it allowed for face saving and did not require ‘sacrificing principle.’

The extension of the same gambit works in many cases to open the door to negotiations. If an attorney signals to opposing counsel early on that payment of ‘reasonable’ fees will not be an issue in the case and could be an expected part of any settlement concluded, then an attorney, knowing his or her fees are secure, is often more responsive to negotiating. For some, this is perilously close to a form of bribery.

The ethics of cloaked negotiation strategies

Side deals, and other cloaked negotiation strategies are common and defensible in the overall interests of reaching workable agreements. The tradeoffs and overlaps that are the core of most business and political dealings involve varying forms of “I scratch your back if you scratch mine” behavior. This is known in more polite circles as social networking.

There is no question, however, that such dealing can be risky. Barton Gellman describes in his book, Angler: The Cheney Vice Presidency, (2008), how the V.P. set up a separate and secret back channel of communications with President Bush, to intentionally bypass and undermine constituted advisors and thereby seriously undermining trust. Similarly, if side deals are blatantly self serving, they can be viewed as illegal, criminal, or immoral. The Governor of Illinois’, is recently the subject of an impeachment, in part for his alleged effort to directly ‘sell’ an appointment to the United States Senate Seat vacated by President –Elect Obama, shocking the conscience of many. Had he merely made an appointment with an unstated expectation of further benefit at a later time, the matter might have been construed as ‘normal’ politics and gone unquestioned.

The line between selling and swindling, or bribery and trade-offs vague and troublesome in any negotiations, whether in business, politics or personal matters. (Leff, A. 1976) Cloaked and surreptitious negotiation strategies and techniques are for deals to work but no less troublesome because of their necessity. This is the shadow side of negotiation that most experienced practitioners recognize and accept hesitate to acknowledge in public. (Benjamin, R.D., 1999)

Deception is a part of animal and human evolutionary psychology and a primary means by which most species survive and procreate. Recognizing this dynamic is critical for professional negotiator or conflict mediator. There can be, however, an operative distinction between a “constructive” deception, defined as a manipulation gauged to encourage settlement, and not for the gain of a party at the expense of another, as contrasted with a “destructive” deception, done for the gain of the actor at the expense of others. (Benjamin, R.D., 2003a)

The necessity of cloaked negotiation strategies

Two of the most difficult blocks to negotiation and settlement are: the loss of ‘face,’ and reactive devaluation. Cloaking strategies are particularly important and useful in countering those forms of resistance. For many, just the prospect of negotiation is viewed as a sign of weakness and demonstrates a willingness to “compromise” which is at minimum a “loss of face,” and at maximum, tantamount to selling out. No matter how etymologically competent the word compromise may be, to many people the words’ inherent meaning is taken to be giving in. For people in conflict the hardest step to take is the first one: agreeing to negotiate. If overtures can be made behind the scenes, through back channels, there is less risk of losing face.

The dynamic of ‘reactive devaluation,’ or more colloquially understood as, “if they suggested it, I don’t trust it,” is one of the most compelling and difficult to combat in the negotiation process. To make a deal work, the distrust and skepticism of one party of the other must be overcome to a sufficient extent. Regardless of the source, whether the result of prior dealings, basic prejudices based on age, race, gender, religion, culture or some other factor, it must be minimized if a deal is to be worked.

Countering reactive devaluation is almost a definitional purpose for mediation. As a third party, a conflict mediator can often legitimate the validity of a perspective or offer by an otherwise questionable or tainted opposing party.

Forms of cloaked negotiation strategies

There are a variety of indirect, sometimes surreptitious approaches, back channel, or under the table maneuvers commonly used to secure agreements. While not intended to be exhaustive, a beginning list might include the following and is offered as a beginning point for a discussion about how negotiation and mediation are necessarily practiced in the real world.

1. Negotiation by proxy.

Experienced negotiators sense when they are not the right person to be up front in a negotiation and find ways to remain in the background. The either use the offices of a third party mediator or co-opt another party to present their perspective so that it will be more likely to be considered. The best negotiators know when to use a third party and mediation is definitional of negotiation by proxy.

Ironically, it is the best and most sophisticated negotiators that are ego-less enough to know that they should fall back and use the offices of a third person in order to keep the focus on reaching agreement. Sometimes even the third party needs to reflectively assess if, because of gender, personality, or approach, blocking movement toward agreement or even inducing or contributing to the risk of impasse. In those situations, another or different mediator might be advised.

The principle is most apparent in the games of bridge or poker; the most skillful recognize that one should not play the hand, but rather, play the opponent, studying his or her ‘tells’ —-the nuances of behavior that disclose bluffs or other tactics. Few negotiators can be effective in every matter or circumstance and they do well to recognize their limitations. Likewise, the same style of negotiation does not work across the board. An aggressive and competitive negotiator whose reputation precedes him or her, and has difficulty toning down their style, might benefit from the presence of a lower key partner or mediator. This is especially an issue in divorce matters, where gender often influences communication, thinking frames, and the negotiation styles of both the parties, lawyers if they are involved, and the mediator. Experienced negotiators don’t presume to be able to negotiate every situation; they assess the conflict and choose to work up front or off stage by proxy.

2. ‘Back channel’ and ‘under the table’ negotiations.

In circumstances that are particularly strained and any direct overture to negotiate initiated by one or the other party in a difficult conflict risks being misconstrued or placing one at a disadvantage, the use of a third party to explore or ‘feel out’ the situation indirectly, can be helpful. Offers can be pitched within the safety zone of plausible deniability if they are not received well.

President Ronald Reagan famously used back channels to negotiate with the Iran for the release of Americans being held hostage. In 1985, while publicly proclaiming that the ‘United States will not negotiate with terrorists,’ he was doing exactly that under the table and through back channels. Colonel Oliver North was working behind the scenes on a deal to supply arms to Iran from the South American Nicaraguan Contras, an Anti-Communist military force, in exchange for the hostages release.

More recently in Iraq, while the Secretary of Defense, Donald Rumsfeld, and the Bush administration publicly held to a unilateral policy of no-negotiation with North Korea, Syria, or Iran—-countries identified as rogue and harbors for terrorists, discussions were happening through third parties.

Curiously, even in the current, deeply aggravated conflict between the Palestinian Hamas organization and Israel, what is little known publicly, are the long standing back channel connections and contacts between the two ‘sworn enemies.’ Notwithstanding the fact that as of this writing thousands have been injured and hundreds have died, Robert Fisk, a long standing Middle East Correspondent for the British Newspaper, The Independent, described in a recent BBC broadcast, how Israel actually participated in the early development and support of Hamas to counter Yassir Arrafat’s Fatah group and that many Hamas officials have the current home telephone numbers of Israeli officials. Even in the present circumstance there continues to be back channel communications. While he found this state of affairs to be from the ‘cynical dark side,” from a negotiation perspective, it may be a hopeful sign that, at the very least, the contact is in place.

Israel continues to this day to do business “off the books,” with a number of its’ sworn enemies in the Middle East, including Syria, Jordan, and Iran, as does the United States and most other countries. Even though surreptitious, back channel and under the table negotiations are unkempt, sometimes border on being illegal, not openly discussed or likely to be revealed soon, if ever, openly, they are essential and will eventually provide the framework for political accommodation and business negotiations between onetime enemies. Note also that the same cloaking strategies are present and applicable not just in geo-political conflicts, but in every other dispute context as well. be it in politics, business or families— especially among those who are publicly identified as enemies. .

General David Petraeus discusses the use of such back channel strategies in his book, The US Army/Marine Corps Manual on Counterinsurgency Warfare, (2007), acknowledging a critical reality of warfare in the current day: it is frequently difficult to know who is the enemy, and to distinguish between civilians and combatants. Back channels and under the table feelers and negotiations are not just useful but a means of survival. This is the lesson of the 2005 ‘Anbar Awakening’ in Iraq where Sunni tribes, who had only months before been sworn enemies of U.S., were encouraged to come together as an armed force against Al Queda.

One of the obvious risks of back channel and under the table negotiations, of course, is the confusion the outing of such happenings cause in an on-looking public conditioned to simplistically believing there are good guys and bad guys. Most people and not inured and prepared to deal with the ambiguity inherent in negotiation and to many, such strategies appear to nothing more than duplicitous and downright deceptive maneuvers.

3. Side deals.

In the 1962 President John F. Kennedy was confronted with the discovery of the placement of Soviet Missiles in Cuba, a scant 90 miles away from the United States. Over the objection of his military advisors who recommended a first strike against the installations, risking nuclear war, Kennedy pursued a risky and tense diplomatic overture that included challenging Russian ships delivering the missiles. The principle at issue in this Cuban Missile Crisis was territorial integrity and security of the United States. After many rounds of maneuvering, the negotiated agreement included a critically important, but secret, side deal. In return for the Soviet removal of missiles from Cuba, the US agreed to remove missiles, albeit largely non-functional, from sites in Turkey within a year. (Dodd, M., 2008)

Side deals are common in most negotiations and often take the form of confidentiality and non-disclosure provisions, and clauses that provide for general denial of liability. Side deals lubricate and make negotiated agreements possible. At the same time, they often raise troublesome public policy issues. For example, in most of the child sexual abuse against the Catholic Church, settled by negotiation or mediation, there was typically a confidentiality provision that effectively gave rise to a conspiracy of silence that some contend allowed the behaviors of Priests involved to continue and the Catholic Church hierarchy to evade responsibility, thereby placing many other children at risk.

4. Engaging people to negotiate under false pretenses

The biggest hurdle encountered by anyone who wants to negotiate or mediate an issue is overcoming the initial resistance to discussing the matter directly. Most people tend to avoid direct conflict. Engaging them in the process is the first and often most difficult task. The straightforward approach, “negotiation will save you time and money,” while likely to be factually accurate, is insufficient. Few people buy any product or service on a purely rational basis.

Sometimes using a false pretense as an excuse to have an in-person meeting with an opposing party, allows an opportunity for real purpose of negotiation to emerge. For example, attorneys are often met with an opposing counsel who is difficult to deal with and has refused every effort to discuss a case, preferring instead to prepare for trial. Setting the matter for formal depositions of one of the opposing party, at the same time making sure one’s own client is present, allows for the makings of a four way conversation. In an adversarial tone that opposing counsel expects, while the court reporter bides his or her time in the lobby, counsel may want to insinuate in, under the guise of saving time, a discussion about what are areas of agreement and what matters remain open. Not infrequently, as a result, the formal deposition procedure gives way to becoming an informal forum for settlement negotiations without anyone having to admit to what is really going on. (Benjamin, R.D., 1997)

The value of and purpose for studying cloaked negotiation strategies.

The value and purpose of studying cloaked strategies is twofold: first, to acknowledge and legitimate them as relevant and necessary. They are part of our repertoire of human behavior. Second, considering the full scope of negotiation strategies, both those that are direct and those that are indirect, encourages a more complete understanding and creative thinking about the negotiation process and encourages a broader range of approaches to conflict management.

Most people, even and including business and professional people, don’t like to negotiate, and if they do, often prefer for it to be behind closed doors so that they do not have to admit to it publicly. For many it remains a sign of weakness and parties in conflict have to be lured and sometimes even tricked into negotiation. Cloaking strategies offer a way to do what parties in conflict know needs to be done without admitting to it; this gives a measure of protection and plausible deniability.

To paraphrase and extend Winston Churchill’s observation about Americans’ belated entry into World War II, people are capable of doing the right thing, but sometimes they must first exhaust all the alternatives, maybe people must try everything else before they fall into negotiating their differences. Cloaked negotiation strategies allow people to slip into settlement discussions sooner, rather than later. The first step in to accept the non-linear, and sometimes irrational thinking frame of many people in conflict and acknowledging that the road to negotiation is often less a straight, reasoned and direct choice, but twisted and circuitous.

Much like open heart surgery, negotiation for many is discomforting, and sometimes even nauseating, and many will avoid it at any cost. It often cannot be done in the open, under the glare of too much scrutiny; it thrives in the shadows. The most difficult conflicts are the most personal where emotions are often raw and nerves exposed. If people are to be engaged to negotiate or mediate those difficult matters, then each party will need to be reassured that they will not be played for a fool, and offered the protection cloaking can provide.

Finally, practitioners cannot be too firmly anchored in any particular practice style or adhere to the orthodoxy of a particular ideology. While using these techniques is not necessarily about the pursuit of agreement at all costs, it is about fashioning a approach to conflict that is realistic and geared toward bringing about a pragmatic, resilient and effective agreement. The authenticity of the negotiator is critical; but it is not so much connected with relationship as it is a genuine commitment to seeking a workable agreement. (Benjamin, R.D., 2003b)

Negotiation occurs in the ambiguous terrain of no right answers. For the same reason negotiation is often found by many to be distasteful, it is essential for the management of conflict. The use of cloaking strategies to bring people into negotiation, while seemingly deceptive, are drawn from human nature and used to the party’s advantage so that they do not defeat themselves by precluding that process. The purpose is not to take advantage of any party or to force any particular settlement, but merely to assure people are given the fullest opportunity to consider an alternative course of managing conflict.

January 9, 2009

Resources:

– Ariely, D., Predictably Irrational: The Hidden Forces That Shape Our Decisions, Harper Collins, 2008

-Benjamin, R.D., “The Use of Mediative Strategies in Traditional Legal Practice, Jrnl of the Academy of Matrimonial Lawyers,” 1997; also Guerrilla Negotiation, Articles of R.D. Benjamin, CD rom, Mediate.com, 2004

– Benjamin, R.D., “Guerrilla Mediation: The Use of Warfare Strategies in the Management of Conflict,” Mediate.com, 1999; also Guerrilla Negotiation, Articles of R.D. Benjamin, CD rom, Mediate.com,

– Benjamin, R.D., “Managing the Natural Energy of Conflict: Tricksters, Mediators and the Constructive Uses of Deception,” in Bringing Peace Into the Room, Jossey Bass, Publishers, 2003a; also in Guerrilla Negotiation: Articles of R.D. Benjamin, mediate.com, 2004)

-Benjamin, R.D., “Terry Waite: A Study in Authenticity,” Resolutions, Straus Institute For Dispute Resolution, 2003b; also Guerilla Negotiator: Articles of R.D. Benjami, CD rom, Mediate.com, 2004

-2004 Benjamin, R.D. “The Dirty, Risky Business of Negotiation and the Risk of Appeasement,” Mediate.com, 2008.

-Damasio, Antonio, Descartes’ Error: Emotion, Reason and the Human Brain, Putnam, 1994

-Dodd, M., One Minute to Midnight: Kennedy, Krushchev, and Castro On the Brink of Nuclear War, Knopf, 2008)

-Fisher, R. Ury, Wm. and Patton, Getting to Yes, 2d edit, Penguin Books, 1991

-Fisk, R., BBC, World Have Your Say, Jan. 7, 2009

-Gellman, B., Angler: The Cheney Vice Presidency, Penguin Press, 2008

– Kahneman, Daniel, and Tversky, Amos, eds., Choices, Values and Frames, Cambridge Univ Press, 2000

-Leff, A., Swindling and Selling, Free Press, 1976

-Petraeus, D., The US Army/Marine Corps Manual on Counterinsurgency Warfare, Univ of Chicago Press, 2007

– Rue, L., By the Grace of Guile: The Role of Deception in Natural History and Human Affairs, Oxford Univ. Press, 1994

                       

Robert Benjamin

Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and… MORE >