The two principal negotiating interfaces will be
1. With the UK Government to agree the processes leading to independence.
2. With the EU to consider the implications of an independent Scotland for Scotland’s EU membership
There will be many other negotiating interfaces, but until the key heads of agreement are reached with UK and EU, they will either be held in abeyance or very tentative in character, since they are in significant part dependent on the outcome of the two primary negotiations.
UK Government negotiations
Two main issues will dominate the negotiating agenda – defence (crucially the nuclear issue), and the division of assets and liabilities.
The two key secondary issues will be a currency union and the status of the Bank of England, and complex administrative issues across a wide range of topics, e.g. pensions, tax, benefits, records.
Classifying the issues as either conflicts of right or conflicts of interest, with the legal dimension (UK law, Scottish law, EU law, international law) of conflict of right issues potentially introducing unacceptable delay factors, will be crucial.
EU membership negotiations
These will focus principally on the Scottish government’s position that Scotland is still a member versus a possible EU view that they must re-apply for membership.
The reality is that independence is a game changer and nothing can be taken for granted, legally or otherwise.
The EU that negotiates after a 2014 YES vote is likely to be a very different EU from its present form (Europe is in near-chaos and a ferment for new possibilities, e.g. much tighter monetary union).
NEGOTIATING – DYNAMICS AND PROCESSES
Negotiating is a technique - one of many - for reaching agreement between parties - force, authority, legal process, joint problem solving, selling, persuasion, etc.
It may be used as part of a portfolio of techniques, and may or may not be the principal technique. It may be used alone.
Broadly, negotiations between parties can by classified as one of five types -
1. Negotiation between independent parties to reach a specific limited, one-off agreement
2. Negotiation between independent parties to create a new relationship for a limited period
3. Negotiations between independent parties to create a new, ongoing open-ended relationship
4. Negotiation between independent parties in an attempt to redefine the terms of an existing relationship
5. Negotiation between parties to bring an existing relationship to an end.
(Another broad distinction can be made in dispute negotiations, that of conflict of right and conflict of interest, that is a dispute over claimed existing rights or an attempt to establish new rights. For example, a dispute over alleged breach of contract is a conflict of right, and a dispute over an attempt to redefine the terms and conditions of a contract e.g. a wage increase, is a conflict of interest.)
The first two types above characterise most commercial negotiations – one-off deals, deals delivered over time, short-term employment contracts, etc.
The last three are the ones that concern us in relations to Scotland’s independence. The Act of Union was type 3, the negotiations over the terms of Scotland’s EU membership will be type 4, and the negotiations over Scotland’s independence will be type 5.
With regard to the EU, type 4 is the one that interests us - negotiation between independent parties in an attempt to redefine the terms of an existing relationship.
Many type 4 negotiations can be described as locked relationships from a negotiating perspective, that is to say, relationships that are expected to continue over time, and where negotiations that result in deadlock or failure to agree do not threaten the ultimate continuity of the relationship.
The technique falls into broad categories – analysis, structure, strategy and tactics and, crucially, behaviour, i.e. the face-to-face interaction of the negotiators.
Negotiators may be accountable to no one but themselves, that is to say, they are their own Principals and have absolute discretion over their side of the process.
Negotiators may also be accountable to a Principal (or Principals) who are not present at the face-to-face negotiation but who play an intimate role in preparation and strategy formulation and have ultimate authority to ratify or reject deals. In such cases the negotiator is the Agent of the Principal (like the lawyer/client relationship).
In a large organisation – or a democracy – the Principal will be accountable to a wider, larger group or groups – the Board, the shareholders, the employees, the customers and the politician to the Government, the Party and ultimately to the voters.
A negotiator may negotiate alone or as part of a team of negotiators. Negotiating team roles, discipline and behaviour are a crucial determinant of negotiating success.
In multi-element, complex negotiations, a back-up team of experts is a vital resources – lawyers, technical people, finance experts, etc. It is not unusual for complex negotiations to be modelled – i.e. to have computer based simulations and models – and to have complex spreadsheets and algorithms to compute the impact of possible changes.
A negotiation that that will take place in the public eye (government, major company or government terms and conditions bargaining, strikes and industrial action – actual or threatened) requires a sophisticated media strategy, not least because everything said – or not said(!) to media – communicates something to the other side of the negotiating table (whether intended or not).
DISTRIBUTIVE vs INTEGRATIVE BARGAINING IN NEGOTIATION
In zero sum games (Games Theory) what one negotiator gains the other loses and vice versa – a finite pot is divided unequally. This is sometimes called distributive bargaining (Walton & McKersie).
Such negotiations are possible, but are highly stressed, prone to deadlock and breakdown, and any deal reached is perceived as having a winner and a loser, relatively speaking. (The recent Fiscal Cliff negotiations are a good example)
Wherever possible, negotiators should strive to add value for both sides by showing new potential for gains to both sides that do not involve win/lose scenarios – the so-called integrative bargain or win/win scenario.
This demands lateral thinking, vision and creativity.