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Pushing The Boundaries: Negotiating With Kidnappers And Pirates

From the Business Conflict Blog of Peter Phillips.

A sobering — even frightening — panel at the IBA’s Vancouver conference addressed negotiation in volatile, politically charged and dangerous circumstances — pushing the boundaries of mediation past the purely commercial, into a world where lives may depend on the skill and success of the negotiator or mediator.

Maritime pirates off Somalia, for example, do not rationally seek and underlying political or even monetary interests, and their behavior is not deliberative. Charles Crawford CMG reflected on his years of service in the UK Foreign Office and concluded that, in Somalia and in the Balkans, a terrorist’s irrationality is his strength. It’s like a bankrupt buying a car, or a dog chasing a car: the pirate, the kidnapper and the terrorist seek to introduce chaos into order.

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What are the principles of negotiation when the counterparty does not have an identifiable and rational underlying interest, and when the thing being negotiated is a human life?

Jonathan Lux of Ince & Co described some of the legal terrain. A recent Executive Order by US President Obama made the payment of ransom to criminals legal, but payment of ransom to terrorists unlawful. The distinction is between political/ideological goals on the one hand and personal gain on the other. But a maritime insurer of a seized vessel will insist upon legal clearance before authorizing payment. Moreover, a shipowner’s or charterer’s failure to disclose the presence of armed security on a ship may void coverage because such security increases the likelihood of harm to the ship.

So there are many interests and many stakeholders in the sezure of a ship by pirates: the ship owner, the ship charterer, the owner of the cargo, the crew, the nation under whose flag the ship sails, the nation in which the seizure occurs, the insurers of the various commercial interests, the other nations whose public policy is affected, and so on. Some conflicts of interest among these stakeholders are riviting to contemplate: Experience dictates that ransom can be lowered over time, but that the welfare of hostages deteriorates over time. The ship owner suffers economically as time passes and the ship is unavailable for charter; yet the ship’s insurer benefits as the demands of the pirates lower. Public policy is perhaps vindicated but hostages are endangered. Mediation, anyone?

Duncan Jarrett shared his experience of many years in such situations. UK policy with respect to the taking of UK nationals is to cooperate with the host country’s policies. As a negotiator in such circumstances, Jarrett sees himself as an instrument of the decision-maker, not ultimately empowered in his own right. He acts as a buffer and creates a gap in time between a demand and a response to the demand. Time, in this context, is the negotiator’s friend.

Hostage situations, Jarrett explained, result from ill-conceived, poorly prepared, opportunistic and impetuous acts. Positions change as more data becomes available to both sides. It is a team game, with a team goal and very straightforward rules.

As an example, Jarrett posited an instance where each member of the audience was part of a kidnapped couple who had been released to air the kidnappers’ grievances. If we failed to return to our kidnappers after our job was completed, our spouse would be killed. When prompted, each of us signified that we would go back. But Jarrett said “I wouldn’t let you. I would prevent you. By requiring you to stay here I would have saved one life — which is my job after all — and I would have reduced the kidnappers’ commodities to only one. They will not eliminate their only leverage.”

The clarity and outlandishness of Jarrett’s analysis was reflected in other guides, or rules, that he used in these situations. He said these pirate kidnappings were not state-run actions but loose, non-national criminal bands communicating to colleagues by internet and other cyber capacities. A skiff with rifles can hold up a global economy. This is not war/peace or win/lose. This is crime. How do you build a negotiation structure to influence behavior in such a context?

Somali Pirates - Merka, Banaadir

First, ”Liking.” Admit your respect for the pirates’ decision. They are doing this because the oil tankers destroyed the fish they used to live on. Healthy respect is good, and it is often mutual. You will get nowhere if you hold the other side in contempt, particularly if you convey that contempt.

Second, “Authority.” Accept the authority of the person you’re dealing with and assert your own. Jarrett fits into early conversations with a kidnapper, “I have done 120 of these kinds of problems and I tend to resolve them.”

Third, “Social Proof.” Behave as your counterpart would expect you to behave. Look the part you have been cast in. Among other things, wear a suit.

Fourth, “Reciprocity.” This is a most effective tool, because it makes the other side beholden. Give them something. They will feel they owe you something back. It may be anything: A cigarette or a chocolate bar, but one per three hours, no more. The promise of a life sentence instead of hanging.

Fifth, “Commitment/Consistency.” If you never pay ransom, then never pay it and be known as someone who doesn’t pay it. Act predictably in all instances. If you promise something, always do what you promised. If you threaten something, then always carry out the threat.

Sixth, “Scarcity.” Be the only path to what the party needs. Be clear: “I am the only person who will deal with you.”

Thus is influence earned, and thus might behavior be changed. Through this progression, time is the negotiator’s friend, and as time passes rational decisions are encouraged and rewarded. Anxiety and impetuosity are reduced, and reason comes into play. Moreover, Jarrett suggested that the progress of such negotiations mirrors the progress of many more familiar, commercial negotiations:

Introduction –> Opening Statement

Active Listening, Empathy –> Exchange of Opening Positions

Rapport –> Negotiation

Influence –> Bargaining

Change Behavior –> Close the Deal

It’s quite a world we live in, and quite a set of tools we must bring to our work as problem-solvers.


F. Peter Phillips

F. Peter Phillips is a commercial arbitrator and mediator with substantial experience providing consultation on the management of business disputes to companies around the globe. A cum laude graduate of Dartmouth College and a magna cum laude graduate of New York Law School, Mr. Phillips served for nearly ten years… MORE >

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