1 | Role and Tasks of the Frontline Negotiator

Introduction

The objective of the Manual is to provide a comprehensive pathway to plan effective negotiation processes for humanitarian professionals on the frontlines. This section focuses primarily on the specific tasks assigned to humanitarian negotiators, including context analysis, tactical planning, and transaction with the counterparts. These tasks assume the support of the negotiation team accompanying the planning and review of the negotiation process (see 2 | The Negotiator’s Support Team); and the framing and guidance of the mandator based on the institutional policies of the organization (see 3 | The Negotiator’s Mandator ).

In this context, specific attention should be devoted to setting up a conducive environment for relationship building with counterparts in terms of:

1. Gathering information on the situation and analyzing the political and social environment in which the process will be conducted;
2. Developing tactical tools and plans to adapt the objectives of the organization to the specific environment and actors of the negotiation; and,
3. Engaging in fruitful transactions in order to produce benefits on all sides.

This section provides critical tools to assist frontline humanitarian negotiators in the elaboration of their negotiation approach across these three steps.

Figure 1: On the specific tasks of frontline humanitarian negotiators.

As described in the Naivasha Grid, frontline negotiators have a central role to play in a negotiation process as they represent the organization in a personal relationship with the counterparts. Building on the empirical analysis of negotiation practices produced by the CCHN and research conducted by Harvard’s Advanced Training Program on Humanitarian Action (ATHA), one can observe that:

1. Humanitarian professionals operating on the frontlines have primary responsibility for establishing and maintaining the relationships with the counterparts on which agencies hope to build the necessary trust and predictability required by their operations;
2. These relationships should be understood as social constructs subject to the political, cultural, and social environments in which agencies operate; and,
3. Understanding the context is therefore a critical step to preparing a humanitarian negotiation and engaging with the counterparts regarding access to the population in need, delivery of assistance, monitoring and protection activities, and enhancing the safety and security of staff, beneficiaries, and premises.

Introduction

Analyzing the conflict environment is an integral part of the work of humanitarian profes- sionals in the field. This task is of particular importance in frontline humanitarian negotiation in order to gather a solid understanding of the social, cultural, and political aspects of the situation and to build a trusted relationship with the counterparts. This analysis is further preparation for reflections with the negotiator’s team on the position, interests, and motives of the counterparts and the mapping of the network of influence, as presented in the Naivasha Grid.

These tasks are at the core of the relational stage of the negotiation aimed at building and maintaining a rapport with counterparts and other stakeholders. This stage is also a time for the negotiation team to reflect with the humanitarian negotiator in the lead, compare notes with colleagues from within and outside their organization and develop a critical sense about everyone’s perception of the conflict environment. These reflective and consultative tools are presented in the next section (see Section 2 Yellow) on the role and tasks of the negotiation team. For now, this section focuses on practical ways to sort information about the context of a negotiation in preparation for the development of a tactical plan.

Figure 2: Analyzing context as a source of information for network mapping and analysis of the motives of the counterpart.

A humanitarian negotiation generally begins with two competing narratives about a situation. On one side, an organization is expressing serious concerns regarding the needs of a population affected by a conflict and offers its services as part of the humanitarian response. On the other side, the authority in charge of the population or of the access to the region is putting into question the accuracy or reliability of the information presented by the humanitarian organization, criticize the priority of the proposed response or challenge the mandate of the organization. The core goal of the negotiation process is to find a way to reconcile these two narratives around some pragmatic arrangements.

In the early stage of a negotiation process, the quality of the information brought forward by the humanitarian organization is of critical importance in determining the chance of success of the negotiation. The traction of the information supporting the offer of service surpasses by far the gravity or urgency of its concerns. In fact, the more intense the concerns expressed by the organization, the more scrutiny they will attract from counterparts regarding the credibility of the sources and the reliability of the information.

As a first step in planning a negotiation process, it is important to ensure that the negotiator and his/her team have all the necessary quality information about the context to establish and maintain the credibility required for the specific negotiation. The focus and depth of information will vary depending on the objective and environment of the negotiation.

While it may appear obvious, it is worth mentioning here some of the core issues and potential sources of information to start an analysis of the environment. The quality of information depends on several factors:

These factors are often interrelated: clear, unambiguous information tends to come from a trusted source, unaltered in its transmission, and easy to corroborate by third parties. Ambiguous and unclear information tends to have a problematic source or chain of custody and is usually uncorroborated.

There are several barriers to accessing quality information, especially on the frontlines, due to insecurity, suspicion, language, cultures, etc. Humanitarian organizations often find themselves relying on single-source assessments that can be easily instrumentalized, especially in tense environments. As a result, organizations often negotiate with a deficit of contextual information compared to the counterparts. The latter will often try to assess from the outset their “information advantage” in relation to how much the humanitarian negotiator does or does not know about the context, which will inform how the counterpart can leverage superiority in terms of access to information.

Unsurprisingly, counterparts in government or armed groups will not hesitate to bundle, hide, or contradict information from the humanitarian organization as a way to create confusion and uncertainty. The first defense against such tactics is to ensure that the negotiator has the best access possible to quality information from various sources in the preliminary stage of the negotiation process.

A second challenge in sharing information with the counterparts is being unable at times to disclose the source of the information out of concern for the security of the individual or organization that provided it. In the case of a single-source assessment, one may not even be able to share the original information out of fear of reprisal against the individual source.

To counter such risks, organizations and negotiators should, by default, seek out multiple sources of information in politically tense environments in order to mitigate potential pressure against identifiable sources (e.g., humanitarian negotiators should meet several representatives of a community or local authorities to corroborate information over time even if they provide little added value to the information itself).

How to Evaluate and Sort the Quality of the Information

As discussed above, the planning of a negotiation requires the gathering of information about a number of issues, including, but not limited to, the humanitarian needs of the population. An organization’s moral authority (which may not be seen as such by the counterpart) is not enough to leverage influence on the counterpart. Quality information must be presented to the counterpart to support the request of the humanitarian organization, uphold the credibility and legitimacy of the negotiator, and respond to the needs of the population in the most adequate manner.

The quality of the information can be sorted in a straightforward way, assigning a degree of relative quality to elements of information by adding nominal values from 0 (poor quality) to 3 (high quality) for each criterion mentioned above. It provides for a scale of a maximum 12 units (3 degrees X 4 criteria) for each element of information.

For example:

As reported by a local NGO, Justice for All, community leaders estimate that there are between 20,000–30,000 inhabitants in Camp Alpha located on the outskirts of the city. What is the potential traction of this information as the negotiator meets with the authority to seek access to the IDP camp?

The information in this example will have limited value in the negotiation process in view of the uncertainty attached to it. Corroborating and narrowing the estimated number of IDPs could help considerably in improving the value of the statement at the negotiation table.

Another example:

A nutritional assessment in the remote district Alpha conducted by Food Without Borders (FWB), a recognized INGO and implementing partner of your organization, demonstrates an increase in rates of malnutrition over the last six months, affecting especially children under 5 suffering from chronic wasting. This assessment was confirmed in the latest report of Help the Displaced International (HDI), a UK church-based charity. According to the Ministry of Agriculture, the latest crops in the region yielded poor results due to the lack of rain, resulting, as observed by the local staff of FWB, in families selling household items in the market to be able to purchase minimal amounts of food. The situation is expected to worsen as winter approaches.

What is the value of this statement in terms of quality information as the negotiator meets with the authority to undertake a food distribution program in the district?

This statement presents high-quality information that may provide significant traction at the negotiation table. It could be further improved by gathering more detailed data on the evolution of malnutrition levels.

Analysis of the quality of the information can be amalgamated in one table which allows a sorting of priority elements based on their degree of quality, using the following example.

What information will the SfA negotiator use in the first meeting with the head of police to find a solution to this problem and get the release of the day laborer before nightfall?

The following table can be used to sort the validity of each element of the case on a scale of 0 – 3) 3 being the highest quality.

Elements of information will present various degrees of quality (from 0 to 12). Bundling the five statements as the overarching story weakens the starting position of this negotiation. As the negotiator prepares to meet with the police chief, the most authoritative information (> 6) in terms of traction appears as:

• 8 units: The day laborer was arrested in the morning at the crossroad by unknown men.
• 11 units: There is clear information that the day laborer was transferred by the police to a remote location in the rural area at 12h30 today.
• 8 units: There are fears of ethnic retribution.

The least informative and weakest elements (< 6) relate to:

• 5 units: There are unclear allegations of ill treatment and forced disappearance by the police.
• 4 units: There are rumors that the day laborer was detained at the police station in the village.
• 4 units: The day laborer is accused of stealing seeds distributed by SfA.

As a result, the representative of SfA should:

• Seek additional information to strengthen the case before the meeting (e.g., more details regarding the name and profile of the day laborer, the location of the police station in the rural area or information about the men who arrested him, allegations of ill treatment by the police);
• Skip over the weakest elements of information to increase the overall reliability of the case to be presented to the head of police; and,
• Recognize the limited information available but emphasize the trust in the strong elements.

Ultimately, the life and welfare of the day laborer will depend on the ability of the SfA negotiator to demonstrate from the outset, through the provision of quality information, the seriousness and networking capability of his/her organization within the political and social environment of the head of police. The negotiator should avoid introducing weak elements which will likely derail the process and strengthen the ability of the head of police to deny the involvement of his men.

Humanitarian professionals have to acquire a good sense of the conflict situation to be able to operate in terms of population needs, programming, logistics, and risk management. Our common understanding of conflict environments is largely made of observable facts (e.g., hunger, insecurity, displaced populations, etc.) and commonly accepted norms (e.g., violent, tragic, disastrous, sad, etc.). These facts and norms form our reading of the reality. They also represent our vision of how we wish the reality would be construed by others. The reality is therefore as much an objective description of the environment in which we operate as a constructed “story” we use to project our vision and mission through it.

Recognition of the subjective nature of our understanding of “reality” is of importance in frontline negotiations, as the starting point of a negotiation process is generally a mix of divergent narratives about reality —i.e., the parties to the negotiation see the world differently.

The purpose of this module is to propose tools that will help humanitarian negotiators to better perceive the counterpart’s reading of reality and find areas of agreement in order to start the conversation about finding pragmatic solutions to the humanitarian needs of the population.

The negotiation environment requires not only a cultural and social fluency to understand the counterpart’s narrative, but also an ability to integrate often contradictory assertions into the agency’s own analysis and discourse as one strives to become more pragmatic. Hence, an operational agency may describe a “famine” situation based on factual elements such as the nutritional status of a population where the scarcity of food is threatening the lives of a large number of people. But “famine” can have a different normative reading based on political, cultural, and social values of the dominant group controlling access to food. In some negotiations, the determination of a “famine” situation may be welcomed by the counterpart; in others, it may be rejected by the counterpart regardless of the objective assessment of the agency.

This contextual dynamic applies to the application of international norms such as humanitarian access. Negotiating access does not require the parties to agree on the existence of an international norm of access. At times, the international norm will be recognized by the counterparts; at other times, the international norm will be rejected. Yet, access to populations can be negotiated on multiple grounds (e.g., moral, cultural, religious, professional, etc.) that may be more acceptable to the counterparts and communities affected. Parties to the negotiation may agree in effect about the implementation of an international norm without ever agreeing about the international norm itself.

This open-minded approach applies to determining features of an affected population in terms of age (e.g., who can be qualified as a child in the context), gender (e.g., access to women as vulnerable groups), social status (e.g., who should be recognized as the leaders). While agencies may consider these differences as the product of a lack of information on the side of the counterpart or a straight violation of an internationally recognized norm, negotiators should read beyond the apparent disagreement about facts and norms and remain cautious about such “disagreement.” This dissociation between the operational and advocacy roles of an organization and humanitarian negotiation often require setting up a well-articulated mandate establishing the negotiation space with distinct roles (see 3 | The Negotiator’s Mandator) so as to avoid creating confusion in the implementation of the agreement where the two realities (the agreed subjective vision of the parties vs. the objective vision of the operators) may clash.

What might seem paradoxical is that, for a negotiation to take place, even on the most contentious issue, several agreed facts or converging norms must be in place to allow the conduct of the negotiation process. Any disagreement entails a number of intertwined agreements on facts and convergence on norms. To engage in a negotiation process, parties need to concur, even if implicitly, on selected elements. In other words:

• To disagree effectively on facts (e.g., denying the prevalence of a famine in a particular context), parties implicitly need to agree on some norms (famine-stricken population would have the right to food);
• Conversely, to disagree effectively on norms (e.g., denying the existence of a right to food), parties implicitly need to agree on some facts (the prevalence of a famine situation).

Building an Island of Agreements

Building a relationship with a counterpart requires deliberate steps to ascertain a space of agreement between the two parties drawing from the paradox of frontline humanitarian negotiations. Once the negotiator has been able to sort out the facts and norms of a given negotiation environment, the next step of the context analysis is to understand which of these facts are agreed (shared and accepted by both parties) or contested (where one party has a different view or understanding of the factual elements), and which norms are convergent (as a shared belief between the parties) or, on the contrary, divergent (as the products of two separate social constructs.) The two examples below are drawn from current practice and are presented to illustrate the process.

In Example 1, the Governor is contesting the fact presented by IFR that there is severe malnutrition within the IDP camps. The Governor argues that the food should be distributed among members of the host community where malnutrition is, in his view, “real.” There are two visions of the reality that are in conflict. The focus of this factual negotiation between the Governor and IFR will be to demonstrate the prevalence of malnutrition rates among the IDPs compared to the local population while building on a dialogue on the shared (although implicit) norms regarding alleviating hunger and the recognition of the experience, expertise, and mandate of IFR. The compromise will probably take the shape of a technical distribution scheme that provides for the IDP population most in need while also alleviating hunger within the host community as long as it can be documented as a recognizable fact for IFR.

To engage in a normative negotiation, one has to understand that norms are essentially shared beliefs of a community or society. Normative negotiation always implies a conflict of norms between international standards or policies of the organization and the norms of the counterparts controlling access to the territory and population. These are two sides believing in two distinct desired behaviors. There is thus a tension between these two norms and societies.

In this example, the fact that 14- to 17-year-old youths are recruited into armed militias is not in question. The issue of the negotiation is to determine the applicable norm, i.e., to what extent recruitment of 14- to 17-year-olds is “normal,” and to determine which group will be the culture or society of reference (e.g., the youths themselves, the community affected by this practice, the military of Country A, or the international community).

Ultimately, should CPI consider the recruitment of these young persons as “normal” vs. “abnormal” in their program of assistance, and how far can the convergence on norms be as a precondition to medical assistance? When one is facing a normative negotiation, the negotiation will deal with differences in political, social, or cultural norms, which are much more difficult and riskier to compromise on (e.g., a “deal” around 16 years old as an agreed norm between CPI and the commander could be as inappropriate as 14 or 18 years old.) Here the negotiators will need to address the social consensus around the recruitment of children and its cost/benefit for the affected community while building a dialogue on some observable facts (e.g., number of children recruited, their health status, etc.).

One may argue that such dialogue can take place only with some recognition of the factual benefit (to the counterpart’s culture) of youth recruitment (bravery and adult rituals) as well as the negative impact on minors of being part of the militia. Ultimately, the job of the negotiator is not to resolve the conflict of norms but to find a way for CPI to operate in favor of 14- to 18-year-olds despite the conflict of norms (e.g., binding an assistance program with dissemination of information on international law).

Application of the Tool

This segment presents a set of practical steps to engage in a proper context analysis of a negotiation process. There are three main steps to the analysis of a complex negotiation environment.

Introduction

Analyzing the conflict environment is an integral part of the work of humanitarian professionals in the field. This task is of particular importance in frontline humanitarian negotiation in order to gather a solid understanding of the social, cultural, and political aspects of the situation and to build a trusted relationship with the counterparts. This analysis is further preparation for reflections with the negotiator’s team on the position, interests, and motives of the counterparts and the mapping of the network of influence, as presented in the Naivasha Grid.

Humanitarian negotiation is centered on an effort of frontline negotiators to build a trustful and predictable relationship with their counterparts as a way to create a conducive dialogue and seek the consent of the parties to assist the affected population. The degree of consent may vary depending on the willingness of the counterparts to accept or simply tolerate the presence and activities of humanitarian organizations.

While this principled approach is the most consistent with humanitarian actions across conflict zones, it has also been put to the test in increasingly complex and fragmented environments such as Afghanistan, Somalia, or Yemen, where the control over territory is challenged by governments or a multitude of armed groups that may prohibit the access of agencies to vulnerable populations. Hence, humanitarian organizations find themselves managing varying degrees of consent and opposition among diverse conflict actors as well as shielding themselves from violent opposition elements opposed to their presence. The “bunkerization” of humanitarian organizations is, consequently, affecting their ability to build trust with the parties and further amalgamate the perceptions of the counterparts regarding the political character of foreign organizations.

Yet, the humanitarian space has been under increasing pressure by the expansion of peace enforcement activities and the imposition of counterterrorism restrictions on relief programs. Humanitarian agencies have been further confronted with the rapid instrumentalization of their relief and protection activities by political actors, host governments, and donors. This politicization of aid has in turn pushed agencies to engage proactively with counterparts and find pragmatic compromises between the needs of the population, the tactical interests of the parties, and the priorities of the agencies. Humanitarian negotiators play a key role in dealing with the increasing permeability of the humanitarian space as it defines the new limits of humanitarian action in polarized environments. Hence, humanitarian negotiation implies a tactical shift from a discourse of entitlement around access to one built on cooperation and trust between the parties and stakeholders. Managing these relationships has become a critical aspect of the negotiator’s tactical plan.

Therefore, humanitarian negotiators must work with the best information available on the conflict situation, its actors, their interests, motives, and values, as well as their network of influence, to develop their engagement over time. This leads to the development of a tactical plan, based on the shared values and tactical interests of the parties to the negotiation. The tactical stage of a negotiation is geared toward establishing the basis of a frank dialogue to support a set of necessary political, professional, and technical transactions with the parties and maintain their continued support. As every agreement entails costs and benefits, as well as various risks for the parties, the main objective of this stage is to create a viable relationship between the parties that will resist time and shifting interests. Building on the context analysis detailed in the previous segment, the tactical stage of the planning is informed by additional analyses by the negotiation team that will inform the design of the tactics.

Among these, one can find in 2 | The Negotiator’s Support Team specific tools to work with the negotiation team to:

1. Analyze the position, tactical reasoning, values, and motives of the counterparts;
2. Map out the relationships among the stakeholders and analyze the network of influence;
3. Identify the priorities and objectives of the negotiation, as a critical point in the design of the tactics;
4. Set the scenarios and bottom lines of the negotiation, framing the tactical plan.

These four elements are optimally part of the role and responsibility of the negotiation team in support of the frontline negotiator and should be informed by discussions among the team in the field based on the observations of its members.

The following modules will focus primarily on the tactical angle of the frontline negotiators, which involves:

1. Fostering the legitimacy of the negotiator and building trust;
2. Determining the type of the negotiation and adapting the engagement strategy accordingly; and,
3. Addressing a genuine conflict of norms through a normative negotiation.

Figure 2: Analyzing context as a source of information for network mapping and analysis of the motives of the counterpart.

Tool 3: Fostering Legitimacy and Building Trust

Shifting from a space of humanitarian entitlement to one of humanitarian engagement represents a significant transformation of the ethos and work method of humanitarian professionals as they get involved in complex environments. While humanitarian agencies have been advocating for a recognition of a right of access to vulnerable populations based on humanitarian principles for several decades, frontline humanitarian negotiators have been increasingly relying on their ability to foster legitimacy and build a trustful relationship with their counterparts to seek and guarantee this access.  This relationship and its implied equality of the parties become the central asset to cultivate. In this context, this Manual proposes a two-step approach for humanitarian negotiators to enhance the legitimacy and build trust addressing:

1. The sources of legitimacy of the humanitarian negotiator; and
2. The ways to build trust with the counterparts in these sources.

The importance given by a counterpart to a negotiation process relates not so much to the object of the negotiation per se but rather to the legitimacy of a humanitarian negotiator and his/her organization in the eyes of that party. Fostering legitimacy refers in this sense to nurturing the appreciation of the counterpart concerning:

1. The features of the negotiator in terms of character and profile that need to be calibrated to respond to the expectations and rationale of the counterparts;
2. The mission and mandate of the humanitarian organization as well as its track record in similar contexts;
3. The relevance of the objectives of the humanitarian negotiation in the particular situation, the responsiveness of the agency to the needs of the population, and the support the agency garners from all the stakeholders.

These elements are the main building blocks of the perception of legitimacy in the eyes of the counterparts. It does not suffice to argue that because an organization is neutral and impartial it is therefore legitimate. Such assertion needs to be examined, understood, and trusted by the counterparts under the specific circumstances. In other words, the humanitarian nature of an organization is by essence a reputational issue.

Since this Manual focuses on the specific role of the frontline negotiator, this segment will articulate legitimacy and trust through the viewpoint of the individual negotiators  rather than the ones of organizations and systems. The legitimacy of the humanitarian negotiator as well as the one of the counterpart play a critical role in the success of humanitarian negotiation. Major concessions are obtained by virtue of the personal status and skills of frontline negotiators. Conversely, misperceptions about the negotiator’s status or insufficient personal skills may be critical impediments to access in some conflict environments.  This point could easily undermine the confidence of many professionals in the field, as no one can feel totally assured that they have the status and personal skills required to seek access to people in need or feel certain that what they bring to the negotiation will be sufficient to guarantee the security of an operation.

The most important skill a negotiator needs to have is to be able to understand the sources of legitimacy required in a particular context and adapt one’s personal profile as much as possible to that context. The point here is not to construct a misleading identity but rather to understand that some aspects of one’s identity and status may be more or less conducive to building a relationship in a specific context. It is about modifying one’s communication style more than shaping a new identity. And it is about listening to expectations and resistance from the counterparts, even if there are questions regarding personal characteristics, and being ready to adjust the personal and organizational profile in the context up to the point of finding a substitute person for a particularly sensitive negotiation.

In practice, there are five sources to the legitimacy of the negotiator:

Balancing the Sources of Legitimacy

Not all sources of legitimacy are of equal value in all circumstances. Understanding the five sources of legitimacy will help to identify the relative value of each source in a given situation. This model can be used within the negotiator’s team to reflect on how one can increase his/her authority and legitimacy in order to create a trustful relationship with the counterpart and enhance the chances of success of the negotiation. This model can also be used to identify the most appropriate team member to be designated as a negotiator.

A negotiator should map out his/her individual characteristics with the support of objectively critical colleagues and set the terms of that profile in a given negotiation. He/she could then identify the most vs. the least conducive characteristics and opt to emphasize the positive characteristics while keeping the least conducive ones away from the conversation.

For example:

In a highly normative negotiation with a traditional and suspicious community leader:

a) Legitimacy is derived mostly from sources that can mitigate the risk of disruption from an unknown external organization, e.g.:

• Personal features (more advanced age, social and marital status, established religion, gender);
• Proven ability to adapt (lowering the risk of social embarrassment and confusion);
• Connection with networks of influence (that can vet your abilities and integrity).

b) Legitimacy is derived least from sources that can increase the risk of disruption, e.g.:

• Institutional mission and reputation (the more normative the mission, the more disruptive the mandate will be perceived);
• Competence on topic and context (the more scientific the approach, the more disruptive the competence may become).

Therefore, a frontline negotiator dealing with a counterpart from a traditional environment should emphasize the following sources of legitimacy:

• Age, family status, family experience if appropriate;
• Diversity of field experiences;
• Personal networks with scholars and community leaders in the region.

The negotiator should avoid:

• Talking about the legal basis of the organization’s mandate in international law and detailing the history of the organization from its inception onward;
• Citing, for example, the number of Nobel Prizes the organization received; or,
• Mentioning his/her Ph.D. on a subject seemingly related to the context (e.g., Social Anthropology or History of the Region).

Conversely, in a highly technical/professional environment—for example, dealing with a high-level military commander from an organized army or a director of a large hospital:

a) Legitimacy is derived mostly from sources that can validate the expertise of the negotiator, e.g.:

• Institutional mission and reputation (the more reputable the organization, the more recognized the mandate will be);
• Competence on topics and context (the more scientific the approach, the more comfortable and interesting the conversation will be);
• Personal features (showing rigor in terms of behavior and presentation);
• Connection with networks of scholars and experts (including the location of advanced studies).

b) Legitimacy is derived least from sources that can show a lack of integrity in terms of professional standards, e.g.:

• Interpersonal capacity to adapt (having worked on several types of missions in several capacities may not be the main asset).

The above approaches may appear either naïve or too simplistic, but they are in service to the overall goal. The point is to make sure that, while not creating a false sense of identity, some part of your character does not unwittingly become a liability undermining your effort to build a trustful relationship in terms of:

• The organization you work with;
• Your specific competence or lack of competence in a specific domain;
• Your age, gender, religion, ethnicity;
• Your capacity to adjust and shape your profile;
• Your network.

Being aware of your assets and liabilities can help significantly in building the right profile with the counterparts and establishing a safe space for a dialogue on the frontline. Your team, especially national colleagues or those from the particular area or group, can help in discussing these aspects.

Building Trust in the Sources of Legitimacy of the Humanitarian Negotiator

The subjective legitimacy, i.e., as perceived by the counterparts, depends on the ability of the negotiator to mobilize the firm belief of the counterpart about his/her sources of legitimacy (i.e., the humanitarian organization, the objectives of the negotiation, and personal features of the negotiator.) The counterpart’s belief is a derivative of the ability of negotiators to:

Application of the tool

Hence, to foster legitimacy and build trust in a negotiation, a negotiator should be able to communicate about his/her organization, project, or personal features using the indicators of trust mentioned above.

Table 1: Criteria of legitimacy and trust in a humanitarian negotiation

Drawing from the case above, a negotiator can apply the legitimacy grid and see how s/he can enhance trust of the local commander in the role and position of MHI.

In this case:

Tool 4: Determining the Typology of a Humanitarian Negotiation

This module is designed to assist humanitarian negotiators in determining the type of negotiation they engage in and guide them in the development of their tactics at the negotiation table.

Negotiation is a vast domain of human engagements. Above and beyond humanitarian negotiation, there are multiple types and categories of negotiation processes attached to various spheres of human activities. As with any human relationship, these categories and types of human engagement, from hostile to cooperative, from close to distant require an adaptation of the tactics used for the negotiation and the calibration of the behaviors to maximize the benefit of the engagement. It is useful to understand where humanitarian negotiation fits in the larger context of negotiation activities.

For the purpose of situating the key characteristics of humanitarian negotiation, negotiation activities can be arranged in three general categories focusing on the relationship between the parties:

Humanitarian negotiations with the conflict actors are essentially relational. They aim to establish primarily a relationship between the parties as a means to facilitate an open number of agreements over a time. These agreements focus on the presence of the humanitarian organization in the area under the control of the counterpart or the access to the population and the delivery of services. While humanitarian professionals can also engage in other categories of negotiation (transactional or, at times, adversarial), they tend to be more comfortable dealing with relational negotiations, which focus on shared values and social connections.

Furthermore, humanitarian negotiations do not imply an exchange of goods or services between the parties. They consist most often of the exchange of commitments as part of the relationship between the parties to act in a particular way for the benefit of the affected population or intended beneficiaries of humanitarian assistance. For example, if an armed group agrees to the request of an organization to allow the passage of a food convoy at no cost, the direct benefit of the agreement is with a third party (here, the community receiving the food). The gain of the armed group may be elsewhere (e.g., in the perception of authority or legitimacy in the eyes of the community). The dependency of the humanitarian organization on the security guarantees of counterparts to allow them to operate in the counterpart’s territory over time is a key indicator of the relational nature of the negotiation. However, if an armed group commander is seeking a personal advantage out of the arrangement in the form of money or goods in exchange for his commitment to allow the passage, the negotiation will quickly become transactional, i.e., driven by the interest of the commander at the expense of the relationship and trust between the parties. If the commander puts pressure on the truck drivers, for example through coercion, the negotiation can turn adversarial, prompting the end of the relationship and thwarting the possibilities of future interactions.

As a result, humanitarian negotiation requires specific tools and methods to build and develop social relationships in frontline environments where adversarial encounters and the use of force are the default modes of engagement. To prepare for this dynamic, humanitarian negotiators devote more resources and time at the relational stage of the process than at the transactional stage (see Introduction | On the Planning of a Negotiation Process). If the counterpart has a monopolistic control over the access to particular goods, services, regions, or populations, building a relationship becomes the main emphasis of the humanitarian engagement. Agreements between the parties are only derivative products of the relationship. The commander of an armed group, for example, will allow the passage of a food convoy not so much because he has an interest attached to the particular passage, but because he benefits socially and politically from the connection with the specific organization or even the individual negotiator. In the absence of a trustful relationship between the parties, another convoy may be blocked on the same road, or could even be attacked.

Sorting the Types of Humanitarian Negotiation

Humanitarian negotiation further divides into three types of relational negotiations focusing alternatively on the sharing of values, on building consensus on methods, or agreeing on the technical arrangements entailed in a humanitarian operation. The previous module on context analysis already identified two of these types—factual vs. normative negotiations. This module recognizes that factual negotiations are mostly technical in nature. It further inserts two subtypes of normative negotiations, the first one being political in nature, dealing with normative identity and values of the counterparts (e.g., sovereignty, religious norms, social constraints, humanitarian principles, etc.), and the second type being professional in nature, dealing with professional norms and methods recognized by specific professional circles (such as efficiency, accountability, transparency, and all applicable professional norms attached to the activities of the organization in, for example, medical or engineering terms).

A key observation of the CCHN empirical survey is that negotiators will determine their tactics differently for these three distinct types of negotiations dealing alternatively with political vs. professional vs. technical matters. All three types of negotiation aim to establish a Common Shared Space (CSS), i.e., a spectrum of possibilities for an agreement.

These three types of negotiations aim to handle specific issues that can be summarized in the following table. Each level entails a measure of risk that needs to be managed accordingly. The more political the negotiation is (i.e., value-based), the more risks are involved in terms of reputation, perception, security, or instrumentalization. A negotiation process can start at any level (A, B, or C) and then stay on the same level all along or move from level to level.

Type A: Political Negotiation

Type A Political Negotiation focuses on the identity, values, and norms of the parties.

Assuming the presentation of a standard offer of service by a humanitarian organization, the key questions of counterparts at the start of a negotiation are:

• WHO are you?
• WHY are you here?

These negotiations are considered to be “political” as they address the external character of the intervening organization or operation in the local environment as a disruption of the established political order of the host government, group, or community.

A political negotiation generally is about the nature, identity, origins, and mission of an organization in the context of the cultural and social environment of the counterparts. As negotiators cannot change much about the identity, values, or norms of their organization (e.g., name of the organization, its logo, its mission, the composition of the team, etc.), there is limited flexibility for compromises. However, one may have some leverage deciding the way the organization will communicate externally in the local environment in order to minimize the visibility or footprint of the operation and the organization in the host community, mitigate political risks for the counterparts, and gain better acceptance.

The main recognized tactic of a political negotiation is to find the right compromise with the counterparts on the profile of the organization and the impact of its identity and values within the community so as to maximize the benefit of its presence and activities and minimize the political costs associated with the mission of the organization (e.g., operate in partnership with a local NGO, be accompanied by a local representative, hire local staff, withdraw logos, etc.). A prepared narrative explaining relevant aspects of the mandate and mission of the organization in the words of the counterpart will help to develop a proper understanding of the organization with the counterpart. It should be underscored that “cutting deals” on identity (e.g., hiding the organization’s logo), norms (e.g., refraining from mentioning human rights or international humanitarian law), or values (disregarding peripheral issues such as trafficking or underage marriage in the community) may have severe consequences for the integrity and reputation of the organization. These negotiations are a source of considerable risks for the organization. The management and leadership should be consulted as the frontline negotiator considers necessary compromises within clear “red lines” (see 3 | Module B: Institutional Policies and Red Lines).

For these reasons, humanitarian organizations should be attentive to when a situation calls for sending a qualified “political” negotiator to discuss the profile of the organization. Professional or technical members of a team may not be able or willing to work out necessary arrangements on the visibility or positioning of the organization, or, conversely, may go too far in compromising the values of the organization in view of the needs of the population that threaten the image and reputation of the organization.

One should be aware that “political negotiation” does not necessarily mean “high level” negotiation. All the levels of management should expect to be engaged at some point in political negotiation, i.e., dealing with the value and identity of the organization, starting with the local staff. Political negotiation may take place at the national or local level, or even at a checkpoint—in fact, everywhere a counterpart may ask the political questions: “Who are you? Why are you here?” These questions may be satisfied by a short and acceptable explanation if the counterpart has little to lose in allowing access, or, alternatively, may be the start of a lengthy and sensitive process if the presence of the organization disturbs the political order of the host in terms of value in the local context.

Although experience in political negotiation is a definite asset, the seniority of the representative may represent a liability in some situations. One may want to mitigate the reputational risks of a political negotiation by sending a person with a lower level of responsibility to a political negotiation in order to avoid unnecessary exposure if the proposed arrangement carries some risks to the organization.

Type B: Professional Negotiation

Type B Professional Negotiation focuses on the methods and standards of an organization’s operation.

The key question at the start of a professional negotiation is:

• HOW do you intend to operate in the country/region/location?

In a professional negotiation, the negotiator is aiming to build consensus with and among the host professionals regarding the method and standards that will be applied to the operation. The approach is to mobilize the support and guidance of this professional community in order to reach consensus in terms of method and accountability. If the professional authority or circles are weak or absent, the negotiation will quickly turn technical (see Type C, below). Professional negotiation is an important buffer between political and technical negotiations as it allows for avoiding falling into political negotiation on value and norms each time there is a blockage at the technical level. Professional negotiation allows for the maintenance of a professional relationship with the local nurse, district health director, head of the hospital, etc., to discuss the methods of the operation with professional counterparts who can appreciate the proposed choices and plans. Professional negotiations will go on until one of the counterparts believes that the discussion has become too technical and specific (i.e., to be dealt with by the technical authorities), or, conversely, too political by engaging value and identity issues (i.e., to be dealt with by political authorities).

As with political negotiation, the operational standards and methods of the organization may be misunderstood (e.g., vaccination protocols, assessment and monitoring methods, accounting and financial standards, etc.) and entails risks if these methods are not in line with local practices. As compared to political negotiation, the point is not about finding the right compromise, which may be unsuitable to the professional character of the organization, but rather building a new consensus around the professional norms of the organization or finding ways to accommodate both the local and institutional norms.

In the example described above, a medical professional aware of the importance of the ethical and professional standards involved could work with the National Health Authority to determine:

1. The appropriate content of the surgical kit;
2. The support required in the field to use this content optimally;
3. The possibility of providing anesthetic support through MHI staff in selected locations; and,
4. The cost benefit of these policies on the welfare of the displaced population.

Professional negotiations represent a substantial risk for the organization in terms of its professional reputation and due diligence. A proper monitoring of these negotiations by professionals in the organization must be ensured. Yet, one should expect that professional standards in many of the conflict environments in which humanitarian organizations operate will clash with those of the organization or its country of origin. Negotiators should be ready and equipped with the right policies to address these differences in the field.

Type C: Technical Negotiation

The key questions of the counterparts at the start of a technical negotiation are:

• WHAT are you planning to do?
• WHAT do you need?
• WHERE, WHEN, or WITH WHOM are you planning to operate?

These negotiations are considered to be technical as they strictly address the logistical and practical aspects of an operation and its implementation in the field. Such negotiations are no less important than the other two types and can carry significant implications in terms of efficiency, security, and integrity of the operations. Technical negotiations deal with engagement with local actors, explaining the expectations of the organization, and focusing on the mobilization of support at the local level. The conversations tend to be factual in nature and call for the right data, evidence, and facts. The point of the conversation is to bring in the expertise of the organization in order to find an agreement on the modalities of the operation at the field level.

The main tactic of a technical negotiation is to mobilize and display the necessary knowledge, data, and expertise of the humanitarian organization to secure the consent of the parties to operate. Once the mission and professional standards of the organization have been recognized, technical negotiation can be conducted more easily as humanitarian organizations have developed considerable expertise in operating in challenging environments.

One should be careful about delaying the outcome of the negotiation by focusing needlessly on the wrong method to be used. In the case depicted above, the besieged and besieging parties should not discuss the humanitarian character of this specific operation or try to “find the right compromise” on the profile of the ambulances (value-based issues) or be “consulted” on the professional modalities of how MHI should transport wounded civilians in an ambulance (i.e., a professional method to deal with a professional standard). These points should be (or have been) discussed at other times and probably with other counterparts than those who staffed the checkpoints and conducted hostilities on the frontlines. The technical negotiation should be limited to the terms of the operation (time, location, operational procedure, etc.), avoiding as much as possible entering or returning to political and professional aspects of the operation.

Politicizing vs. Depoliticizing a Negotiation Process

There are circumstances where the organization or the counterpart is unable or unwilling to agree to a particular demand at a particular level. Rather than breaking the negotiation, a party may opt to change the focus of the dialogue by changing the core question. A counterpart may always politicize the discussion by asking: “By the way, tell me again, why are you here and who are you?” Equally, the humanitarian party may want to avoid the political pitfalls of a negotiation by asking: “Can we focus on how we can work together and provide the necessary assistance to the population in need?” These defensive tactics are to be expected as parties that are challenged by a negotiation will want to negotiate at the level where they have the upper hand.

Hence, humanitarian organizations tend to push the negotiation to the technical level and avoid political compromises. Government or armed groups gain more traction by politicizing the negotiation so that they can exert more influence on the discussion. Frontline negotiators should note that the opposite can be true as well. Government representatives may gain by sticking to technical issues (e.g., the allocation of travel permits) to avoid dealing with more principled issues (sustained access to the most affected population). While humanitarian organizations can deal with technical issues, they may be easily entrapped in a maze of technicalities by the counterparts, making the former unable to set the proper principled and professional terms of their operations.

Table 2: Criteria of legitimacy and trust in a humanitarian negotiation.

For example:

Drawing from the case above, a negotiator can apply the legitimacy grid and see how s/he can enhance trust of the local commander in the role and position of MHI.

In this case:

Tool 5: Drawing the Pathway of a Normative Negotiation

Building on the Island of Agreement in the early stage of the planning process (see 1 | Module A: Context Analysis), the humanitarian negotiator is in a position to determine if the object of the negotiation process will entail mainly contested facts or, rather, divergent norms. This distinction has significant implications in terms of creating a pathway for a dialogue with the counterpart as the parties will engage differently regarding a negotiation on contested facts compared to a negotiation on divergent norms. Facts can be negotiated in a straightforward manner regarding reconciling views about a given context. Norms are more complicated as they entail the core values of organizations and societies which define their identity. Norms are parts of the “DNA” of the parties to the negotiation and cannot simply be “reconciled” without the buy-in of the original constituencies. Therefore, distinguishing factual negotiation from normative negotiation is an important tactical step of the negotiation process.

As an example:

A representative of Food without Borders (FWB), an International NGO, meets with the Governor of District A. He is mandated to negotiate access to populations affected by drought in the District and to respond to a growing famine. He presents to the Governor his plans for the delivery of food to affected populations.

The Governor can alternatively:

1. Question the factual assertion of FWB about the lack of food (“There is no famine here”), requiring FWB to present solid evidence of food insecurity in the District; or

1. Question the normative mandate of FWB (“You have no right to be here”), requiring FWB to seek acceptance among local and national stakeholders about the work of FWB.

As explained in the Island of Agreement Tool, the paradox of humanitarian negotiation dictates that the Governor will need to select one of the two pathways to enter into an effective negotiation process with FWB as a disagreement on facts or norms often requires an inverted agreement on implicit norms or facts.

If the counterpart decides to contest the facts presented by FWB about food insecurity, the humanitarian negotiator has two threads to weave a pathway into a factual negotiation:

1. Build an argument based on convergent norms (e.g., FWB mandate and expertise, the right to receive food, etc.), which in turn will
2. Support the presentation of evidence by FWB to address the disagreement on facts.

If the counterpart decides to diverge on norms about the mandate of FWB or the right to deliver food, the humanitarian negotiator has again two threads to weave a pathway into a normative negotiation:  

1. Build an argument based on the shared factual understanding of the parties (e.g., the prevalence of famine), which in turn will
2. Support efforts to build a consensus on the norm required to respond to the famine (e.g., FWB’s mandate and professional methods).

The possibility that the Governor could disagree both on facts (existence of famine) and norms (FWB’s mandate, the right to food) is a sign of the absence of grounds to negotiate. Such double negative calls for a thorough analysis of the network of influence to see potential areas of dialogue with stakeholders (see 2 | Module C: Network Mapping). As far as the facts are concerned, the weaving of a pathway for a dialogue on facts is described in a preceding module on Gathering Quality Information. The current module will focus on negotiating divergent norms.

Negotiating Divergent Norms

Contrary to facts, which are the products of observations, norms are the products of social structures of belief developing into the values and identity of a community. What brings people together is their shared assumption that certain behaviors or perceptions are preferable to others, being moral vs. immoral in nature, legal or illegal, professional or unprofessional, etc. As seen in many communities, these shared beliefs are the outcome of social interdependencies and power relations between members of the community. Beliefs do not need factual evidence to sustain themselves as long as they provide a framework to differentiate who is acknowledged as being part of the community and who is outside of it. Beliefs are not something to be discussed with outsiders but rather are designed to delineate the identity of the community among the insiders. In all cases, the resilience of communities is based on their ability to generate a consensus about their current norms while addressing the evolving needs of community members.

The same applies to humanitarian negotiations which juxtapose the core values and social beliefs of the humanitarian community with the ones of the actor with whom they negotiate:

• Counterparts tend to value the preeminence of the nation-state or the survival of the group over the protection of the individual. Their belief is that relief assistance should serve the political agenda of re-establishing a national or international order.
• The members of the humanitarian community believe that the lives and dignity of all people supersede concerns for national interests and that the principles of neutrality, impartiality, and independence are paramount to the delivery of assistance.

Humanitarian principles and the predominance of military necessity, for example, are two sets of beliefs that define the core values of their respective communities. These beliefs are not all static; some of these beliefs are regularly questioned within the community or across communities. Yet, questioning the core values and beliefs of a community puts significant pressure on the cohesion of the alternate group and the power relationships between its members.

Fortunately, the norms that allow us to function in intertwined communities are not always in conflict. Many do overlap. Yet, at times, norms, as communities, do come into conflict. Norms need to be reconciled even at the risk of allowing an escalation of tension and violence across communities. In view of the already conflictual environments in which humanitarian organizations operate, humanitarian norms are prime candidates for conflict between humanitarian imperatives and military/security necessity. Humanitarian negotiators need to be fully equipped in managing such conflict and mitigating the risks of tension.

Negotiating norms can take several shapes and also engage a number of facts.

For example:

A representative of the Committee Against Child Recruitment (CACR), an international NGO active in conflict zones, is negotiating the release of 250 vulnerable children recruited by an armed militia within the District. Under international law, children under 18 years of age should be exempt from being recruited into military service.

The negotiation is not about the fact that children are recruited into the militia. This fact is well established on both sides. There is therefore no need to prove that children are recruited in the military. Rather, it is about the determination of the violation of an international norm and how to proceed to seek greater compliance.

Under option 1: The local commander attempts to justify the mobilization of children based on the need for manpower in the militia under the circumstances (e.g., siege of the town by opponents). In such case, the argument points toward a factual violation of a norm under the circumstances of a siege. The use of an argument of necessity is not part of a normative negotiation per se since the humanitarian norm is not put into question, only its implementation in the specific case. Despite dealing with the implementation of an international norm, such negotiation becomes factual again although it refers to a normative issue which remains unchallenged. The point of the negotiation will be to determine which factual situations may justify an exception to the rule and the implications of such deviance.

Figure 5: Analysis of a factual violation of an international norm.

Under option 2: The local commander argues not so much on the military necessity of recruiting children under the circumstances but rather on the existence of an alternative local norm of recruitment from the age of puberty. The recruitment of children appears to be in violation of the international norm (N) yet in compliance with the competing norm of a local community (N’) which sees the mobilization of children starting from 12 years of age as an important patriotic duty and ritual of passage to adulthood (see Figure 5). This is a typical normative negotiation which calls for a dialogue on how to improve the compliance to the international norm N without prompting an aggravation of the violation of the local norm N’.

Figure 6: Illustrating a conflict of norms between the international community and a local community.

For an alternative norm to exist, it requires the existence of a parallel group or society whose members believe in the legitimacy of N’, in this case, the obligation of children from the age of puberty to serve in the military. This group must be composed of more than a few people who have an interest in the particular case (starting with the violators) but who represent the local community (e.g., elders, religious scholars, parliamentarians, etc.) and with whom the negotiator can have a discussion on the value of the local norms and see that the behavior of the local commander is in compliance with the local norms. Such divergence requires the application of a normative approach to the negotiation as the two parties are not simply facing a violation of N, but an actual conflict between two different sets of beliefs (N vs. N’).  A normative divergence is harder to engage with as it may touch deep beliefs of the organization or even the negotiator. It is therefore important to be able to step back a bit from one’s own beliefs to understand the conflict environment in which the negotiation will take place in order to bridge the gap between the two norms in these particular circumstances.

Application of the Tool

The objective of this module is to help frontline negotiators in approaching a normative negotiation. The point of departure of a normative negotiation is an analysis of the violation itself: Does the behavior of the counterpart actually amount to a violation of an international norm? Was this violation justified by the counterpart as a matter of facts (exceptional circumstances) or as a matter law (due to divergent local norms)? How can we draw a pathway in the latter situation for a greater compliance with the international norm?

The humanitarian negotiator has a series of options to deal with a conflict of norms. One may consider:

1. Discuss inconsistencies of the opposite norm in its social-local context and assert competing local social norms to encourage improved compliance with the international norm. The negotiator should identify social norms that are more in line with the international norm than the ones regulating the behavior of the counterpart.(E.g.: There are other community norms that require children to attend schools or work on farms until 16 years of age; girls should not be recruited under local customs.)

2. Discuss contradictions of norms in the local context but across the formal designation calling for compliance with national laws in the context.(E.g.: There are national laws prohibiting the recruitment of children below 16. These national laws are applicable to the local context as they are the same ones providing the legitimacy and funds to the military.)

4. Discuss the moral character of the norm based on a universal belief regarding the welfare of children.(E.g.: Raise concerns about the risk faced by children in the military from sexual exploitation and other abuses in view of their vulnerability, which is of global concern. Alternatively, reference global professional military norms that discourage the recruitment of children.)
5. Try to convince the counterpart to comply with the global legal norm, recognizing that this is probably the least likely option in terms of potential success.(E.g.: Raise awareness about the consequences of recruiting children in terms of criminal liability in front of the International Criminal Court, for example.)

 Alternatively, the humanitarian negotiator may focus on the internal logic of the norm of the counterpart using interpretive tools of legal arguments. Logical arguments are very much contextual and relational. The point is not to put into question the legitimacy of the local norm but rather to challenge its logic as a matter of better understanding the norm, trying to insert genuine doubts into the reasoning of the counterparts.

This engagement entails questioning the logic of the local norms compared to other values in the community using classical tools of legal interpretation. The negotiator will need to ensure the strength and legitimacy of the other values used as arguments in that particular community (vulnerability of women, strongest elements in the militia, duty of care to children):

1. A fortiori: If women are exempt from recruitment because of their vulnerability, the most vulnerable children should be exempt as well.
2. A contrario: If the militia is composed of the strongest elements of the community, children, as the weakest members of the society, should be exempt.
3. A priori: Children are in development and depend on the care of others. They will create an unnecessary burden on the militia.

By questioning within such a framework, the negotiator may be able to bring about a change of policy as the counterpart thinks more logically about the local norm than emotionally or politically. Once the logic has been questioned, the humanitarian negotiator may present the logic of the other norms mentioned above as more solid and not so much as being superior or more legitimate. For example:

1. Women and children are equally protected under IHL.
2. Powerful military have all adopted the prohibition of the recruitment of children to battlefield roles below 18 years of age.
3. National laws recognize that the place of children is in schools.

Module C: Transaction

Introduction

The transactional stage consists of the final step in the process focusing on negotiating the actual terms of the agreement between the parties. It is the point at which the Common Shared Space (CSS) takes the shape of a definite series of reciprocal commitments (e.g., the provision of assistance under agreed-upon conditions) allowing the humanitarian organization to operate with the consent of the counterparts.

Transactions often take the shape of a bilateral or multilateral agreement between the parties concerned with the issue. The agreement can have several forms: oral statements, written contract, memorandum of understanding (MoU), exchange of letters, handshakes, etc., and have various levels of exposure (confidential encounter vs. public documents). At the core of any agreement, one can find an exchange of reciprocal commitments producing a mutually beneficial arrangement as the main reward of the negotiation process for the parties involved.

This agreement may govern the presence of the humanitarian organization, its access to the population in need, and the terms of the deployment of its activities. The commitments may also encompass security guarantees, delivery schedules, modalities of visits, landing rights, etc. In exchange, organizations may agree to the terms of the counterparts regarding location of the office, scope of activities, visibility, the selection of the targeted groups, methods of distribution, role of local authorities, among other things. The process may also involve further discussions on the orientation of humanitarian operations requested by the counterparts in terms of operational priority throughout the duration; cooperation with other organizations, ministries, security, and police forces; etc.

Figure 1: Informing the transactional stage of a negotiation process within the Naivasha Grid.

Regarding the type of transaction

Accordingly, the transactional stage of a humanitarian negotiation can take various forms that tend to reflect the types of negotiation:

1. Factual transactions often focus on the technical aspects of an operation, determining when and where the activity will take place, and what it will entail, such as the scheduling of a vaccination program in a district, in exchange for the cooperation of the local authority in the field and compliance with their instructions.
2. Normative transactions emphasize issues of methods and professional standards detailing why an operation should take place and how, i.e., under which standards the terms of the operations will be developed (e.g., methods of monitoring, hiring policies, etc.), in exchange for recognition of the political role and legal responsibilities of the counterparts.

In both cases, a negotiation process ends with an exchange of commitments to act in a certain manner for the other side’s benefit (granting access, providing relief aid, changing a policy toward beneficiaries, etc.), raising a number of questions and, at times, concerns about the sustainability and equity of such agreement.

The mutual character of humanitarian transactions has always been treated with a degree of uneasiness and apprehension by humanitarian agencies. Besides providing essential goods and services to the people in need, who most of the time are not part of the discussion, the transaction legitimizes the control of the counterparts over the access to the affected populations which has inevitable political implications. There is a constant tension between the norms of neutral, impartial, and independent access and the reality of accessing the population in need under the control of the counterpart. In practice, access always entails a form of compromise on humanitarian principles so as to maximize the impact of the activities of the organization.

The transactional stage is clearly an important phase of the negotiation process as it tests the preparation for and planning of the negotiation over a period of time. The purpose of this segment is to help prepare frontline negotiators for this critical stage, with the understanding that they are not alone in this transaction. In fact, this transaction is informed by their tactical deliberations and specific objectives allocated to the negotiation process under the mandate of the organization, as well as by discussions about scenarios and bottom line (see Figure 1 Naivasha Grid), both of which will be explored in 2 | Module D:  Designing Scenarios and Bottom Lines).

This segment will focus on preparing the stage of the transaction as a result of the process presented so far in the CCHN Field Manual. It will focus primarily on:

1. Creating a conducive environment for the transaction;
2. Clarifying the terms of the transaction; and
3. Addressing the human elements of the transaction.

Tool 6: Creating a Conducive Environment for a Transaction

The transactional stage of the process with the counterpart is a critical moment of the negotiation given the investment of the parties in assessing the situation, analyzing the interests of the parties, and leveraging the networks of influence. The transactional stage is when and where parties will collaborate to agree on the proposed terms of the exchange and determine their readiness to accept the costs and risks of the transaction. As mentioned above, each transaction entails costs and benefits for both parties. Inevitably, most of the material benefits of a humanitarian operation concern a third party (the affected population) that is rarely included in the negotiation process. Because of the absence of input from the third party and the nature of the negotiation transaction, the delivery of assistance is therefore not a direct outcome of what transpires between the parties at the negotiation table. The issues taken up are more about the distribution of costs and benefits entailed in the making of the humanitarian operation (e.g., presence, visibility, physical access, logistics, security of the operation) than the outcome of the operation (e.g., food reaching the population in need.)

Experienced frontline negotiators acknowledge that, while there are generally two parties sitting at the negotiation table, there are multiple stakeholders who may exercise control over the topics at issue before reaching agreement. These include:

• The direct mandator of the negotiators on both sides;
• The operational hierarchy on both sides;
• The legal and policy hierarchies within the humanitarian organization;
• Political hierarchies, including donors;
• Conservative forces on both sides who see agreements with the counterpart as a threat to their interests and power within the respective organization or group;
• The political stakeholders within the affected population who may jeopardize the implementation of an agreement;
• Other humanitarian organizations and interagency coordination structures who may be dissatisfied with the terms of the agreement or the role of the humanitarian organization in its implementation; and,
• Political authorities—local, national, or international—who may disagree with the terms of the agreement.

There will surely be a lot of people “breathing down the necks” of the negotiators at the negotiation table. In negotiation terms, their respective interests are the important drivers of the transaction. It is therefore vital that the humanitarian negotiator work diligently in preparing the transactional phase of the negotiation through deliberate and extended consultation with stakeholders. A negotiator may opt to seek inputs in the terms of the proposed agreement so as to bolster ownership, depending on the actors and the circumstances. The point is not to seek everyone’s support at the transactional stage, but to be transparent about the efforts of the organization and the proposed terms of the agreement in order to prevent any surprise.

While the benefits of the transaction are often quite clear for the respective parties, accepting the cost of a transaction always comes at a risk for the negotiator and for the organization he/she represents as they entail compromising or putting at risk a valued asset of the organization or some of its stakeholders (e.g., security of staff, integrity of delivery chain, institutional reputation, control over the assistance to the population, security presence, etc.). To retain some control over their program and manage risks, humanitarian organizations tend to “bundle” elements at the negotiation table. For example:

• Presence in a context may entail campaigning for the rights of the affected population;
• Access to IDP camps may entail collecting data about IHL and human rights violations;
• Monitoring the delivery of assistance may entail making lists of beneficiaries and collecting population data;
• Safety and security arrangements may entail the presence of former military and intelligence officers from donor countries.

Some of these elements may, in turn, come at a high cost for the counterparts or some of their stakeholders. To mitigate these risks, counterparts may also try to underline, rephrase, or obscure some aspects of the transaction so as to minimize the burden of the agreement on their side. e.g.:

• Crossing a checkpoint may involve checking the cargo despite an immunity from inspection;
• Selection of local staff may require some vetting by internal security forces;
• Providing rations of food to families may entail some redistribution or diversion of food to members of the militia when the organization leaves the camp.

In other words, the exchanges at the negotiation table tend to have several levels and layers to manage both the relationship between the parties and the expectation of the respective constituencies and mandators on the outcomes of the agreement.

The details of the transaction are often left at the discretion of the negotiators, who, based on their experience and interests, will ensure the proper elaboration of the agreement while minimizing the risks involved by avoiding being too explicit or too implicit on some of the terms. The vagueness can quickly turn into a liability at the implementation phase (see the next module on 1 | Tool 7: Clarifying the Terms of the Transaction). The art of the negotiation relies on the ability of the negotiator to strike the right balance in specifying the necessary terms of the agreement for successful implementation, while leaving aside the most contentious aspects with limited significance in terms of operation.

Application of the Tool

The collaboration in the drafting of the terms of an agreement very much depends on the relationship established between the parties before the transactional phase. In the preparatory phase, the negotiator may want to create a conducive environment for the discussion by:

• Preparing for the meeting(s) carefully, selecting in advance the issues to be discussed, as well as building on areas of convergence in the agenda.
• Engaging with key internal stakeholders in advance on the terms of the proposed agreement and ascertaining the power structure of the humanitarian negotiator’s own organization.
• Understanding the power structure of the counterparts and their stakeholders and the potential personal and institutional liabilities they may carry, and assessing the risks entailed around the various terms of the proposed exchanges (see above).
• Approaching the transaction as an opportunity for dialogue rather than a moment of resolution and arbitrage. Since the decision of the counterpart may well be made at a later stage, prepare and set an agenda for the meeting to support a dialogue in order to explore options rather than reach a final agreement. The agenda should identify the issues, propose a path for the discussion, and set a clear process for moving forward into implementation.
• Listening carefully to the counterparts and taking their points into account explicitly in the elaboration of the proposed terms of the exchange even if at first it may be difficult or counterintuitive to integrate some of these points. Be aware of your body language in this particular moment; physical expressions, postures, and gestures can easily betray opposing feelings and discourage a dialogue.
• Actively perceiving, which is more important than actively persuading. Make a list of the points made by the other side, making sure that you understand them from their perspective.
• Being transparent about your red lines when some of these options are unlikely to be agreed on in order to try to avoid raising the wrong expectations. Do not hesitate to postpone a discussion on a difficult term to focus instead on agreeable issues and then revisit the knotty points later if they are still relevant.

Tool 7: Clarifying the Terms of the Transaction

This tool focuses on the terms of the agreement between the parties to the negotiation, moving our attention from the relationship with the counterpart to the product of the negotiation and its implementation. Proper contextualization of the agreement is essential to ensure its realization in complex environments, ascertaining from the outset possible obstacles that would make some of the commitments difficult or impossible to apply, comply with, or enforce. Clarity of language is of particular assistance to ensure a common interpretation of the commitments of the parties to the negotiation.

The success of a negotiation process depends on both the meeting of interest between the parties and the feasibility of the terms of the agreement in their implementation. This practical dimension may be of great importance for the organization but may also come at a cost for the negotiators of both parties as “the devil often lies in the details.” At times, negotiators may share a common interest in leaving ambiguities in the terms of the agreement to ensure the success of the negotiation and pass on the risks of misunderstandings to the implementors of the agreement. It is important therefore to be cognizant of the interests of the parties in both reaching and implementing an agreement while minimizing pressure on the implementors to find practical solutions. For example:

As mentioned at the beginning of this module, the quality of a negotiated agreement resides primarily in the clarity of the terms and its resilience in the implementation phase despite changing circumstances. A quality agreement provides for a clear set of responsibilities and common standards and objectives, as well as a joint procedure to ensure proper implementation of the agreement, thereby establishing a framework for the humanitarian operation.

In principle, the terms of an agreement are properly set when:

1. They are clearly expressed in a way and in language that both sides can understand and relate to;
2. They define plainly the expected roles and tasks of the parties in addressing the object of the negotiation as required by the circumstances;
3. They recognize the reciprocal and interdependent character of the commitments, in particular, the sequential mechanics of these tasks (i.e., the order in which these tasks should proceed and the conditional nature of particular tasks);
4. They set up a process to handle potential divergence of views on the implementation of the agreement so as to preserve the spirit of the agreement and support its implementation despite changing circumstances; and,
5. They recognize the intrinsic power relationship between the parties so as to calibrate the respective levels of responsibility in the process of implementation.

Tool 8: Addressing the Human Elements of the Transaction

The transactional stage of a negotiation is an environment where by default considerable pressure is being applied on the parties. Frustration over the conflict situation or the competing interests of the parties is often expressed. The human dimensions of the transactional stage cannot be overstated and can easily derail a meeting, but if managed properly they remain secondary to the outcome of the negotiation. Addressing these elements aims to contain the emotions of the parties in check in order to keep the negotiation on track.

In this context, the negotiator needs to be able to “read” the situation in its human, cultural, and social contexts, and be able to adapt his/her attitude accordingly. The goal is to de-escalate tensions and contribute to a positive experience in the room. The capacity to read a situation and respond proactively to the counterparts’ behavior is an important skill for negotiators. While expressing a sense of frustration, or even being outraged, in some situations can be beneficial to the discussion, the humanitarian negotiator should be strategic and intentional in when and how he/she expresses these feelings. Such displeasure may be conveyed only if the negotiator also has the capacity to de-escalate the resulting tension and bring back a positive outlook in the dialogue.

Similarly, it is important to distinguish assertive behavior, which may help to communicate a position using strongly worded reasoning while being respectful of the other side’s views, from aggressive behavior, which aims to impose a position over the views of the other side by leveraging an emotion (pride, anger, sadness, pity) or through disrespectful acts or words. Both need to be read in their cultural context, as the perception of the receiver is the determinant. In cross-cultural contexts, a benign act of humor or familiarity, for example, can be read as particularly aggressive and disrespectful.

Assertiveness may be useful to project:

• The mission and objectives of the organization;
• The norms and expected results of an operation;
• An awareness about the seriousness of the situation;
• A sense of commitment and seriousness from the organization.

In this context, assertiveness is not about denouncing, imposing, or rejecting a position. Rather, it aims to build on the authority and responsibility of the counterparts, recognizing their efforts and respecting their social position on which you wish to build an intervention.

Aggressiveness may undermine your position because:

• It imposes values, objectives, norms, and identity through emotional leverage;
• The frame of emotional leverage may include anger, sarcasm, humor, fear, threats, guilt, etc.;
• It would hijack efforts of empathy to build a common understanding;
• It can be interpreted as a lack of control over an issue, which implies that the negotiator is not confident or does not have a real authority;
• It is essentially disrespectful and is likely to trigger escalation;
• It will negatively impact the long-term and trust relationship.

For example, aggressiveness in the same context as above:

Both statements are describing the same situation. While the first one attempts to carry a strong but rational message, the second one attempts to leverage anger, guilt, and fear more than reasoning with the counterpart. Depending on the power relationship between the parties to the negotiation, an aggressive stand by the weaker party is most likely to generate an escalation from the dominant side, as aggressiveness will be interpreted as a challenge to the power dynamic, even before one considers the issues at hand. Conversely, aggressiveness by the dominant side is an expression of power and frustration in the relationship. Even if it does not trigger an escalation, it will undoubtedly undermine the trust that the counterpart may have in the common understanding of the situation. In such case, the only option is to seek a de-escalation.

Application of the Tool

The purpose of bringing the human element into the preparation is to focus on finding the right calibration of emotion vs. rational arguments around the negotiation table. This segment focuses particularly on how to de-escalate tensions with the counterpart when he/she has loaded the negotiation with emotions to the point of paralyzing the process. De-escalation is a matter of managing negative emotion and re-establishing a rational framework to engage in the discussion. There are several successive steps to de-escalate tensions in a meeting.