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Diplomacy’s Question: Can Every Dispute Be Resolved?

Negotiation

By Roger B. Jacobs December 2017
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I recently attended a small group celebration in honor of the late Israeli politician and two-time prime minister, Yitzhak Rabin, at Newark, N.J.’s New Jersey Performing Arts Center. The presentation focused, among other things, on steps for multistate dispute resolution. Present were Daniel Kurtzer, who served as U.S. ambassador to both Egypt and Israel, and is now a professor at the Woodrow Wilson School of Public and International Affairs at Princeton University; former Israeli ambassador to the United States Itamar Rabinovich, and Rabin’s daughter, Dalia Rabin-Pelossof.

During the conversation, Ambassador Rabinovich recounted the steps leading to potential solutions to some of Israel’s problems in the “neighborhood.” He specifically spoke about the indirect negotiations between U.S. Secretary of State Warren Christopher, Former Syria President Hafez al-Assad, father of the nation’s current president, and Prime Minister Rabin. He detailed the back and forth that went on with Christopher, as well as Rabin’s candor to the secretary with regard to a resolution with Syria.

By examining that discussion, as well as reflections from Ambassador Rabinovich’s new book (“Yitzhak Rabin: Soldier, Leader, Statesman,” published by Yale University Press (March 5, 2017)), we are left with some thoughts and lessons for dispute resolution.

Ambassador Rabinovich recounted events in July 1993, when then-Prime Minister Rabin concluded that Israel’s military operation in South Lebanon had

run its course; there were no further gains to be made. Rabin asked the Clinton administration to use its good offices with Assad to negotiate a cease-fire under terms that would provide stability in South Lebanon. This was done by Secretary of State Christopher and Dennis Ross (who stayed on and became the head of the U.S. peace team), along with Christopher’s Syrian counterpart Farouk al-Shara. It was a performance of sorts; al-Shara would claim that, of course, Syria had no influence over Hezbollah, but somehow he did manage to work out the cease-fire agreement. Christopher and Ross did the initial work for the agreement on the phone and then flew to the region in August 1993 to finalize the deal.

See “Yitzhak Rabin Soldier, Leader, Statesman” at 192-193.

Rabinovich reported that Warren Christopher did not realize at that time that their visit would become a crucial turning point in the history of the peace process. Rabin decided the time had come to make crucial decisions. He knew that without a painful decision on either the Syrian or Palestinian track there would be no breakthrough in the peace process; he was determined to make one happen. … If conditions in 1993 might enable Israel to transform its relationship with the Arab world, it should seize this opportunity. Rabin also felt pressure in the narrower sense of political time. He had committed to deliver an autonomy agreement with the Palestinians within nine months. Furthermore, his coalition was fraying. … It was much better to make the requisite concessions with a right-wing Orthodox party as part of the coalition than with a center-left government relying on the votes of the Israeli Arab members of the Knesset, anathema to the Israel Right. Id. at 193. (Emphasis added.)

Secretary Christopher’s trip permitted him to first meet with Rabin, to listen to his position and questions, and then proceed to Damascus to get Assad’s responses. Ambassador Rabinovich stated that he was one of the note takers, along with Dennis Ross, at the small meeting that took place with the two principals. In this case, Rabin and Christopher spoke and

Rabin went directly to the heart of the matter; he could make a significant move on one track of the peace process; he preferred it to be the Syrian-Lebanese track and to offer the Palestinians a limited deal, such as Gaza first, without Jericho. With regard to Syria and Lebanon there were two options. One was Lebanon first, namely, an early deal with Syria’s Lebanese client to be followed by an Israeli-Syrian agreement, but he doubted that would be acceptable to Damascus. However—and this was the dramatic moment in the meeting—he asked Christopher to explore with Assad the idea that if his own demand was met (namely, full withdrawal from the Golan), would Syria be ready (a) to sign a peace treaty with Israel that was not linked to progress on other tracks; (b) for a real peace, including normalization, diplomatic relations, and all the other paraphernalia of real peace; and (c) to offer elements of this peace prior to the full implementation of complete withdrawal. Id at 194. (Emphasis added.)

Critical, and directly applicable, was the following anecdotal recollection by Ambassador Rabinovich:

Rabin raised four other points. First, he expected U.S. participation in the post-settlement security regime. Second, Rabin emphasized that he was speaking of “an assumption” (namely, a hypothetical statement, not a commitment). Third, he emphasized the strict confidentiality of this exercise and repeatedly told Christopher that his deposit was to stay in the secretary’s pocket and must not be “put on the table.” Finally, Rabin told Christopher that a referendum would have to be held in Israel before he could sign an agreement with Syria based on full withdrawal. [Id. at 195.]

Rabinovich further recounted that in a private discussion Christopher had with Rabin regarding the parallel track of negotiations with the Palestinians, Rabin’s answer was that “in the event of an agreement with Syria, the agreement with the Palestinians would have to be limited to Gaza, but should the first agreement be made with the Palestinians, both Gaza and Jericho would be included.”

In other words, this discussion was part of a complicated multi-pronged potential negotiation. Prime Minister Rabin was attempting to use Secretary Christopher as the go-between.

‘THE SECRETARY’S POCKET’

Rabin made clear to Christopher that certain things were to remain in “the secretary’s pocket” and not be put on the table. This concept is applicable in negotiating strategy and mediations regardless of topic. The mediator’s objective is to attempt to flush out positions without giving away the secret that is “in his pocket.”

Rabin also made clear to Christopher that there was an alternate track if the Syrian track was not successful. Thus, it should have been clear to Secretary Christopher that any tipping of his hand would jeopardize the Syrian track and move forward the Palestinian track. Simply put, in terms of a negotiating strategy, the mediator, in this case the Secretary of State, knew or should have known that there were alternate and parallel tracks available and that one could go forward without the other. But as the neutral, he could not tip his hand unless he had sign off from the principal—in this case, Rabin.

Ambassador Rabinovich opined that before Rabin made a final commitment to Oslo, which ultimately ended being the deal done with the Palestinians, Rabin was “attempting to find out whether there was a Syrian alternative. Had it turned out that there was, he would have been willing to pay the requisite price to secure it.” Rabinovich then recounted in detail the discussions between Christopher and Assad, which is fully described in Rabinovich’s book.

Rabinovich stated that Assad was willing to offer formal contractual peace for full withdrawal and was “in principle” willing to review the agreement.

But Assad then had a long list of ifs and buts and did not accept either the time frame or the implementation phase. Christopher “saw Assad’s response as positive” because he accepted the basic equation for peace.

Rabin, however, had a very different analysis of that discussion.

Significantly,

Rabin understood that his deposit had not in fact been kept in the secretary’s so-called pocket during the meeting with Assad but instead had been laid squarely on the table. As might be expected in response to such a tactic, Assad, while offering a positive response in principle, started the bargaining process. Rabin had padded his position in anticipation of such a bargaining process, but he felt the rug had been pulled out from under him. He was also surprised to hear from Christopher that he and his team were flying back to the United States for their summer vacation. Did that leave him with a Syrian option or not? (Emphasis added.)

Ambassador Rabinovich opined that Assad had given a positive response but only “in principle” that the Secretary Christopher misread, and instead felt it was “adequate.”

A decision by Rabin to abandon the Syrian option and proceed with the Oslo negotiations was bound to anger the administration. It was also a full commitment to a scenario Rabin was ambivalent about. Yet the option of abandoning Oslo for a lengthy, arduous, and possibly futile negotiation with Assad on the Syrian track seemed even less attractive. And an open rift with [then Israeli Foreign Minister Shimon] Peres caused by abandoning the Oslo option and replacing it with a limited agreement with the Palestinians as a corollary to a Syrian deal would probably be more painful than Christopher’s pique. Had Rabin been able to display a breakthrough with Syria, he could have overcome Peres’s wrath and potential challenge, but Assad’s response and Christopher’s decision to depart immediately for the States left him with nothing to show. There was another advantage to the Oslo option: it was an interim agreement, and the toughest decisions could be delayed for five years. In a deal with Syria, the most painful choices would have to be made up front. Rabin ended up deciding to give the green light to conclude the Oslo negotiations and forsook a Syrian track. But he insisted that Washington’s endorsement of the Oslo negotiations would have to be secured before the deal could be formally made. Id. at 197-198.

ANALYZING THE CRITICAL DECISION

The balance of the negotiations and details I leave to Ambassador Rabinovich and his readers. The messages regarding mediation and negotiation, however, must be noted and discussed.

There were surface negotiations going on using an intermediary who was typically bringing messages back and forth. But the critical decision, in this case by Secretary of State Christopher, to reveal what was in his theoretical pocket caused Rabin to actually conclude that his Syrian option was not a real choice.

Instead, Rabin continued to negotiate a resolution which culminated in 1993’s Oslo Accords with the Palestinians, now called the Palestinian Authority.

The discussion also revealed that Rabin had to consider the internal politics, which we must also always recognize are going on, whether dealing with corporations, labor unions, or other entities.

There were also complex relationships between the parties—in this case between Israel and its intermediary, the U.S. Secretary of State, and the leaders of both Israel and Syria.

The neutral must always be aware of all of the parties both at the table, and not directly at the table. In this case the parties were unable to complete a settlement with Syria which would have resulted in a giveback of the Golan Heights and a total peace. Unfortunately, the use of back channels was not successful and that situation never resolved to date.

What are the lessons for all of us?

As just noted, the neutral, mediator or interlocutor must always be aware of all of the parties who are or may be affected by the negotiations directly or indirectly. The implications of the negotiations, both with the parties directly and those affected by the resolution, must always be considered.

When there are multiple or parallel tracks of negotiations going on, the neutral must be aware of the options and be careful to make sure that he or she has clearly followed the principals’ instructions.

In other words, information that is to be “kept in your pocket” must remain there. Even hinting that there is a potential deal that is beyond your authority is highly problematic, and will usually result in a loss of credibility to the negotiator or mediator.

Negotiations are difficult. In fact, they are like a ballet of words, and one must not give away the end too soon. As the neutral, you must use your wisdom and experience to know the moment.

It is not an exact science.

The Neutral’s Awareness

The setting: The Middle East peace negotiations, circa 1993.

The outcome: The Oslo Accords.

The focus: To prevent a risk to the neutral’s credibility, in multiparty negotiations, the mediator must be vigilant about the status of parties’ private information. In other words, don’t let it slip.

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Biography

The author is a Roseland, N.J., attorney focusing on neutral’s work as both a mediator and arbitrator. He is a Cornell University graduate and earned his J.D. and Master of Law in Labor Law from New York University. He has been appointed as an arbitrator in hundreds of commercial disputes. He has taught bargaining and negotiations at New York’s Fordham University School of Law.


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