Negotiating Brexit: BATNAs and beyond

Simon Usherwood / Sep 2016

Image: Shutterstock


The thing I find most annoying about theory is that, as much as I dislike it, it keeps on turning out to be useful. This keeps on happening when I’m teaching, or designing some research, or – as in this case – observing the world around me. There’s probably a good theoretical explanation for this, but I’m not going to give theorists the satisfaction of working out what it might be.

Even when I teach my students about negotiation and I want them to get as much hands-on experience as possible, we keep on coming back to theory. It gives us reference points and models for understanding what we’re doing: just as you can’t learn to negotiate without negotiating, so too you can’t learn it without some framework for reflection and self-development.

Reflection and self-development are not words that are being bandied about with regard to Brexit. Instead, we witness a car-crash of unclear objectives and processes, with key figures neither providing leadership nor creating solutions. The end of the summer recess has produced about as much useful reflection as a mirror with a blanket over it. Hidden in a cupboard. In a basement. At night.

But griping about the failings of others only gets us so far: now is the time to practise our lemonade-making skills.

Negotiation theory has focused in recent decades on the idea of ‘principled negotiation’. The key text of this is Getting to Yes, a book that I recommend to students for its virtues of brevity, clarity and very reasonable pricing. The authors, Roger Fisher and William Ury, provide a framework that can be applied to all sorts of negotiation, big and small.

In essence, the process is grounded in deep preparation; understanding what you want, what others want and what options are out there, before actually coming together to discuss all these things and reach an agreement. It’s not a million miles from how the EU has developed, gradually building agreements, with occasional bodges to accommodate particular situations.

Brexit also fits into this, although you might not feel it does. The problem is that the individuals and organisations involved in Article 50 do know what they want, but have yet to find agreed stances with others: thus lots of people in the British government have ideas, but don’t have the power to force others to fall in line. And that’s nearly as true for Theresa May as it is for anyone else.

So conceptually we’re in the right ball park, but when we look at the concepts that Fisher and Ury build out from their model, things look much more tricky.

If not this, then what?

Importantly, they developed the notion of a BATNA, or Best Alternative to a Negotiated Agreement, i.e. if you don’t reach an agreement, what’s your fall-back? For the EU, failure to conclude terms within Article 50 isn’t great, but it’s manageable, because the status quo will hold (broadly speaking). But for the UK, the BATNA looks pretty poor.

As has been noted elsewhere, there is much pressure within the UK to go for a ‘hard Brexit’ and turn down any Article 50 deal. In that case, all existing membership obligations lapse and there are only the residual relations that derive from other international treaties, such as the UN Charter or the World Trade Organisation (WTO). Problematically, the UK’s membership of the latter is tied to its EU membership, so there would have to be renegotiation of schedules with all the other WTO members (including the EU27), something that would be neither easy nor fast. Likewise, while it might be legally feasible to grandfather the UK’s access to the EU’s preferential trade agreements, it would only take one party to feel that this was a good moment to secure more favourable terms for itself for things to fall apart. As the theory notes, you can’t rely on good will to get you through, only solid preparation and a robust position, grounded in principles that can’t be contested.

In short, whatever one thinks of a ‘hard Brexit’, it’s not as robust as it needs to be, and if it does fail then there’s a very painful (and protracted) period for the UK as it scrambles to secure whatever deals it can, this time with no BATNA worth the name.

Mine. Mine.

A second idea that clearly applies – partly as an extension of the previous point – is the notion of claiming value. Brexit necessarily means considering the full range of public policy and myriad points of interaction.

Theoretically, if you don’t get everything off the table with your final agreement, then you undermine that agreement: it becomes something that causes uncertainty, even resentment and gives raise to calls for revisiting what has been agreed. It’s why the EU27 will make an offer to the UK once Article 50 begins, even though they’re not obliged to, and why the UK might well accept it: most agreements would provide more certainty and benefit to both sides than non-agreement (that BATNA again) and would reduce later uncertainties.

It’s also why any agreement will need to provide for principles and a mechanism to resolve those uncertainties that do arise. The legal ramifications of Brexit are immense, so both sides need to decide at least the outlines of how to proceed: EU laws applying until British ones specifically replace them, for example.

Lukes’ second face

Which brings us – ironically – to the final idea, namely agenda-setting. The more you can define the terms on which you negotiate, the more you can shape the final agreement. As we all know, if someone turns up with some ideas about whatever you’re discussing, then it’s easier to work from that than to create something from scratch.

This is why May isn’t notifying on Article 50: she wants to set as much of an agenda as she can while she holds some power in the process. Even if the UK does have to cleave to any EU27 offer within Article 50, that will have taken some account of the British position (once that gets decided).

And there’s the rub. Right now, no-one is really setting the agenda. The EU27 don’t appear to have enough of a consensus to set out the broad lines of their offer, let alone anything more detailed. From the British perspective, this helps, but it comes with a big caveat: delay notification too long and the EU27 are likely to harden their stance and be less flexible when the UK does finally get round to it.

Fisher and Ury talk of ‘wise agreements’, ones that meet all sides’ interests and which improve the relationship between those involved. Right now, we’re still some way from that.


Simon Usherwood

Simon Usherwood

September 2016

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