John Brand

John Brand is a lawyer, retired consultant and ADR specialist at Bowmans in South Africa, mediator, trainer, and retired director and shareholder of Conflict Dynamics. He serves on the ADR Advisory Committee of the South African Law Reform Commission. John is an IMI Certified Mediator and a member of IMI’s Independent Standards Commission and a CEDR-accredited mediator. He has specialised in dispute resolution and the training of negotiators, mediators, and arbitrators, has written extensively in journals and other publications, and co-authored “Commercial Mediation – a User’s Guide” and “Labour Dispute Resolution” both published by Juta. Over the past 30 years, he has arbitrated and mediated many large commercial and employment disputes and he regularly facilitated negotiation, strategic planning, and transformation processes. He was a member of the team of international experts appointed by the International Labour Organisation (ILO) to design mediation training for developing countries and he regularly trained mediators from countries in Africa, Asia, Eastern Europe, and South America. The ILO also commissioned John to design training material and to train parties and trainers from countries across the world in mutual gain negotiation. This training material has been translated into French, Portuguese, and Arabic and is used extensively throughout the world.

It is proving very difficult for South African political parties to negotiate coalition pacts in the highly contested metropoles and ahead of the 2024 national election. Some parties are setting pre-conditions for negotiation, and are taking up strong positions, before even getting to the negotiation table.

Typically, the pre-conditions and demands are higher than what the party expects to settle at and they usually provoke equally high counter-demands which are also higher than what the countering party expects to settle at. These excessive demands and pre-conditions cause anger and a belief that the other party is arrogant and demeaning. What then usually happens is that the parties move slowly from concession to concession, exaggerating the value of their concessions, and demeaning the value of the other party’s concessions.

In order to pressurise each other, the parties threaten to walk away from the negotiations, and they use the media to disparage one another. At best, the parties eventually reach a compromise with which they are all dissatisfied. At worst, they reach deadlock and are forced to go it alone. None of this bodes well for optimal pre-election pacts nor for sound and lasting post-election governance agreements. The negotiation process, instead of building an ongoing relationship, does much to retard it.

Roger Fisher and William Ury’s book, Getting to Yes, caused a revolution in negotiation theory and practice. It popularised the distinction between positional and interest-based approaches to negotiation. Adopting the latter approach has enabled parties to make their experience of the negotiation process more creative and fruitful. It also has helped parties build relationships rather than destroy them. Unfortunately, this negotiation revolution seems to have passed many people by although it has been successfully adopted in some very successful political and collective bargaining negotiations in South Africa.

Experience teaches us that, to embrace the new approach to negotiation and to achieve optimal and lasting multi-party and multi-issue negotiation outcomes, parties need special negotiation skills. Although politicians are usually experienced negotiators, some are often stuck in antiquated and adversarial positional ways of negotiating. They also do not always have the range of expert skills needed for extremely complex coalition negotiations.

Coalition negotiations are very challenging, both in process and in content. The parties are political rivals competing for a share of the electorate’s votes, but, at the same time, they need to be co-operative partners in pact negotiations that are intended to exclude other competitors. They also cannot afford to alienate their loyal supporters and must respect their mandate givers. In addition, some party leaders have large egos, and public personas, and are used to engaging in very public and adversarial contests. They are not always well equipped to build relationships with adversaries and relationships come under pressure very quickly. None of this makes the negotiation process easy.

What makes the negotiation even more difficult is that the content of coalition negotiations is very demanding. The issues that need to be agreed on are many, varied, and often complex.

To manage these challenges, political parties need to be familiar with modern negotiation theory and practice referred to earlier, and on how to counter outdated adversarial positional bargaining. They need to sharpen their existing negotiating skills and to ensure that they have the specific expertise necessary to participate effectively in demanding coalition negotiations.

To do this, they must, at the least, be able to:

• Prepare and strategise thoroughly for the negotiation;
• Get beneath demands and positions and understand their underlying needs, interests, fears, and concealed concerns, as well as those of other parties;
• Get to hidden causes of conflict and identify aggravators and moderators of the conflict;
• Resist starting with solutions, as this inevitably results in sub-optimal outcomes;
• Instead, appropriately create and only later claim value by separating problem analysis (discovering causes and interests), from solution search (creatively developing options), from solution evaluation (risk analysis), and from solution choice (settlement). This will help achieve optimum and sustainable outcomes;
• Brainstorm and think creatively to effectively search for solutions;
• Properly evaluate solutions and carefully assess all the parties' best, worst, and probable alternatives to an agreed solution (commonly referred to as BATNA, WATNA, or risk analysis);
• Use decision trees to order discussions and monitor progress;
• Manage the anchoring bias and work along a bargaining range to get into the Zone of Potential Agreement (ZOPA);
• Manage the mandating dynamic and the expectations of their constituencies;
• Deal with deadlock when it arises;
• Know if and when to use facilitators and mediators;
• Understand and manage their own and the other parties’ emotions, unconscious bias, and reactive devaluation;
• Properly balance empathy and assertiveness;
• Demonstrate listening and truly hear what is being said;
• Deal with difficult people and behaviours to ‘get past no’;
• Have difficult and ‘impossible’ conversations;
• Influence and persuade others effectively.

To ensure that they have all these necessary skills, political parties should consider getting their negotiation teams to undergo advanced negotiation skills training ahead of pact negotiations. This could help them hone their existing negotiation skills and to make sure that they are familiar with modern negotiation theory and practice.

It would be best for all the parties’ negotiation teams in a negotiation to undergo this training jointly. This is because the purpose of the training would not be to help one party beat another but would be to help all the parties achieve a win-win, mutual gains outcome. Alternatively, they could undergo the training separately, but then the same trainers should be used to ensure a uniform approach to negotiation.

Highly experienced negotiation skills trainers are available in the country through recognised providers such as Conflict Dynamics.

There is much at stake in trying to ensure that when coalitions become necessary in South Africa the parties are equipped to take on the challenge of both pre-election pact negotiations and post-election governance negotiations. Being better equipped is in all of the political parties’ interests and ultimately to the benefit of the broader society.