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Negoziazione e mediazione in Iraq

Dispensa al corso di Teorie e tecniche della trasformazione dei conflitti della Prof.ssa Maria Luisa Maniscalco. Trattasi del saggio di David M. Tressler dal titolo "The Soldier and the Sheik: Lessons from Negotiating in Iraq" all'interno del quale si discutono le tecniche di mediazione e di negoziazione adottate dal contingente americano durante la... Vedi di più

Esame di Teorie e tecniche della trasformazione dei conflitti docente Prof. M. Maniscalco

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74 Harvard Negotiation Law Review [Vol. 13:67

Summary of Findings and Recommendations

B. The narrative interviews with United States military officers

provide an opportunity to take a structural approach to studying mil-

itary-civilian negotiations in SSTR operations by examining the key

17

elements of such negotiations. Analysis of the interviews identified

three key elements in these negotiations between U.S. military of-

ficers and local civilian leaders that have particular importance for

their outcomes. First is the context in which SSTR negotiations take

place and which can make these negotiations especially unique and

demanding. Second, culture is an important, but relative, or varia-

ble, factor in such context; it can significantly affect the conduct and

outcome of a negotiation, or, more surprisingly, have little effect.

Third, the element of power is shaped by a variety of factors rather

unique to military SSTR operations, particularly the tactical or oper-

ational value placed on the relationships at stake in the negotiation.

How military negotiators exercise their negotiating power makes a

difference in how successful they are. The interviews also indicate

that while these are unique negotiations taking place under unique

circumstances, negotiation theory generally holds true for these as

for other negotiations.

Analysis of the interviews, the negotiations recounted in them,

and review of an extensive body of negotiation literature provide a

basis for suggesting (1) several negotiation tactics and techniques

that may enhance the effectiveness of U.S. soldiers negotiating with

local civilian or military leaders in SSTR operations – in Iraq and in

18

the future; and (2) several ways to supplement current U.S. mili-

tary training for soldiers preparing to deploy to SSTR operations

such as those in Iraq.

The first half of the paper discusses the findings in each of the

three key areas described above and provides recommendations for

military negotiators that integrate negotiation research and theory

with the lessons learned by interview subjects and analysis of the

17. Structural analysis of negotiations relates the key elements to outcomes and

enables a comprehensive approach. See I. William Zartman, The Structure of Negotia-

tion, in I N : A , A , I 71, 72 (Victor A.

NTERNATIONAL EGOTIATION NALYSIS PPROACHES SSUES

Kremenyuk ed., 2d ed. 2002).

18. It is reasonable to assume that the U.S. military will in the future continue to

deploy to new countries or regions, tasked with a mission to secure, stabilize, support

transition, and/or reconstruct a nation, locality, region, or society – as the military has

been deployed in the recent past to Haiti, Somalia, Bosnia, Kosovo, Afghanistan, and

See C . T . & N ’ S P , supra note 2, at 3-6.

Iraq. R

TR FOR ECH AT L ECURITY OLICY

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Winter 2008] The Soldier and the Sheik 75

negotiations described in their interviews. The second half of the pa-

per examines pre-deployment Army negotiation training as con-

ducted at the National Training Center and offers several

recommendations.

In the process of examining current pre-deployment training, the

second half of the article makes the observation that, given the new

strategic environment in which the U.S. military has been and will be

asked to operate, current training is impressive but insufficient as it

relates to negotiation. There is U.S. Army doctrine that is based on

19

the best practices and theory of negotiation research and literature.

The Army’s graduate schools have experts in the field and offer edu-

20 However, the interviews conducted

cational courses in negotiation.

for this research and observations made at the National Training

Center suggest that the link is rather weak between (a) written mili-

tary guidelines for negotiation and the military’s expertise in general

negotiation education, and (b) mission-specific training prior to

deployment.

This article argues that this link should be strengthened, so that

those who train soldiers to negotiate are familiar with and apply the

best of existing doctrine and negotiation literature to their training

curriculum. This article’s recommendations complement the mili-

tary’s existing doctrine and training but would require more training,

practice, and evaluation than is currently allowed. The recommenda-

tions apply the negotiation literature and analysis of the negotiations

described in the narrative interviews to the unique and complex envi-

ronment of SSTR operations in which U.S. officers are negotiating to

achieve mission objectives. Most importantly, the recommendations

advise the U.S. military to expand its negotiation training in time,

content, and number of officers and non-commissioned officers who

receive such training.

19. See SASO F M , supra note 2, app. at E; T J W R

IELD ANUAL HE OINT ARFIGHTING

C ., J T F C ’ H P O , at IV-15 to

TR OINT ASK ORCE OMMANDER S ANDBOOK FOR EACE PERATIONS

Peacekeeping and Stability Operations Insti-

-20 (1997). The U.S. Army War College’s

(PKSOI) is the Army’s “center of excellence at mastering peace, stability, and

tute

reconstruction operations at the strategic and operational levels.” It recognizes the

See Negotiations, http://

important role that negotiations play in SSTR operations.

www.carlisle.army.mil/usacsl/divisions/pksoi/politicalNeg.aspx (last visited Dec. 7,

2007). See Telephone Interview with James McCallum, Professor, U.S. Army War

20.

College, at Carlisle Barracks (Nov. 22, 2005).

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76 Harvard Negotiation Law Review [Vol. 13:67

F N I

I. L

ESSONS ROM EGOTIATING IN RAQ

A. The Paramount Importance of Context

1. Army and Marine experience in Iraq’s Negotiating Context

Negotiations that take place in SSTR operations like Iraq are

dominated by the context within which they are conducted. Such an

obvious point almost goes without saying. Yet it is well worth explor-

ing because the context sharply distinguishes these negotiations from

other types of negotiations that take place in other settings. Negotia-

tions between U.S. officers and Iraqi civilian leaders often cannot be

characterized entirely by dealmaking or entirely by dispute resolu-

tion, two very different negotiation paradigms. The context makes it

more difficult to apply standard negotiation theory to these negotia-

tions. Yet, as this paper will argue, the fundamental principles de-

scribed in the negotiation literature still hold true for negotiations in

SSTR operations.

The experience of the U.S. officers interviewed, as well as a sig-

nificant body of negotiation research, provides support for one aspect

of the way the Army is now training officers prior to deployment,

namely to prepare for a negotiation by understanding the situation in

21 The Army places primary emphasis on achiev-

which it takes place.

ing situational awareness and a thorough understanding of its area

of operations in its negotiation training for units preparing to deploy.

This focus on the context within which military-civilian SSTR negoti-

ations take place is appropriate.

A significant majority of the officers interviewed, and all of those

with the most experience negotiating, highlighted the importance of

22

understanding the context. One Marine officer who served as the

commander of an Iraqi army base near Tall Afar, Iraq negotiated

21. For instance, one approach suggests that cognition is situated in the particu-

lar context and cannot be reduced to individual cognitions. The products of cognition,

including accurate perceptions, judgments, as well as biases, are also situated in the

context, as is “the very nature of integrative potential in a negotiation . . . .” Leigh

The Evolution of Cognition and Biases in Negotiation Research: An

Thompson et al., in T H

Examination of Cognition, Social Perception, Motivation, and Emotion, HE AND-

N C 32-33 (Michele J. Gelfand & Jeanne M. Brett

BOOK OF EGOTIATION AND ULTURE

See also infra Parts II and III.

eds., 2004).

See Interview with Major JD, U.S. Army (Mar. 2, 2006); Interview with Cap-

22.

tain MM, U.S. Army (Feb 28, 2006); Interview with Captain JJ, U.S. Army (Feb. 28,

2006); Telephone Interview with Major CG, U.S. Army (Mar. 9, 2006); Interview with

Captain TS, U.S. Army (Nov. 30, 2005); Interview with Captain JV, U.S. Army (Mar.

1, 2006); Interview with Captain JW, U.S. Marine Corps (Ret.) (Nov. 21, 2006); Writ-

ten Interview with Captain EH, U.S. Army (Feb. 19, 2006); Interview with Captain

DS (Nov. 30, 2005); Interview with Captain BP, U.S. Army (Ret.) (Jan. 16, 2006).

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Winter 2008] The Soldier and the Sheik 77

often with a local sheik. He noted that, “If you didn’t have a good

understanding of the situation, you were flatfooted . . . [and] could be

easily taken advantage of, manipulated, or maybe unintentionally

23

promise something that you couldn’t deliver on . . . .” It was critical,

he said, that he had a thorough understanding of the entire situation,

24

and not just his own position. He believes that his success was lim-

ited in a series of negotiations with a local sheik over the use of equip-

ment needed to enhance security at his base, because the sheik may

not have been the right person to talk to or may not have been some-

25 26

one who could be trusted. Other soldiers echoed this lesson.

Those who felt unprepared for the task of negotiating learned the

importance of understanding the context. An armored cavalry officer

expressed what other interviewed officers also articulated: that in

business and contractual negotiations with Iraqis they felt the most

unprepared because they did not yet have an understanding of the

local economy, prices, and the structure of local businesses, among

27

the many other situational factors. An infantry officer who arrived

in Iraq with the initial invasion force and was later assigned to civil-

military tasks and information operations, discussed – as an example

of his lack of preparation for negotiating with Iraqi civilians – a nego-

tiation for the use of a building needed by the U.S. Army. As he was

negotiating the rent, he realized he did not know what an Iraqi dinar

was worth. He believed that he appeared unprepared when he had to

28

call his unit for the exchange rate. A field artillery officer who was

also in Iraq in 2003 noted that they “didn’t have the landscape in

29

front of us.” Another field artillery officer serving as a civil-military

23. Interview with JW, supra note 22, at 41-42. R

24. Id. at 30.

Id. at 12, 20.

25. See Inter-

26. One emphasized knowing who in the situation has power to act.

view with Colonel M, U.S. Army (Mar. 1, 2006). Captain JV stressed the importance

See

of knowing who has influence and power locally – the sheik, the mayor, or others.

Interview with Captain JV, supra note 22. Major JD discussed the need to under- R

stand the local dynamics of the area’s leaders; for example, whether they are Kurds,

Sunnis, or Shiites, and how that affects the dynamics of the local community. See

Interview with Major JD, supra note 22. Captain MM argued that knowing (1) who to R

talk to and (2) who you are talking to are two of the most important requirements for

conducting negotiations in environments like Iraq. See Interview with Captain MM,

supra note 22. R

27. Interview with JJ, supra note 22, at 25. R

28. Interview with JV, supra note 22, at 25. R

29. Interview with TS, supra note 22, at 23. R

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78 Harvard Negotiation Law Review [Vol. 13:67

operations officer in 2004 and 2005 noted his inexperience at negoti-

30 These

ating and his lack of knowledge about the Iraqi economy.

simple examples demonstrate the complex realities that soldiers face

when they are deployed as part of SSTR operations and are required

to negotiate with civilians outside their areas of expertise and train-

ing. It makes a deep understanding of the context even more

important.

Other negotiations demonstrate the positive impact that an un-

derstanding of the context and all of its variable elements can have.

For the field artillery officer who started negotiating in Iraq with too

little knowledge about the context in which he was dealing, the time

he spent negotiating hundreds of reconstruction agreements provided

him with not only a facility at negotiating with Iraqi contractors but

a reputation as well. That reputation among Iraqis reflected his im-

provement; contractors knew his limits and knew they could not take

31 In negotiations over the administration of a local

advantage of him.

hospital, an armored cavalry officer successfully took part in negotia-

32 His U.S.

tions within a complex set of hidden contextual factors.

Army unit was responsible for an area several miles outside of Bagh-

dad. It negotiated with a hospital administrator to use more hospital

resources to increase hours and services for the general public. The

administrator claimed that he did not have enough resources, but the

U.S. officers involved knew the hospital was directing a dispropor-

tionate amount of resources to preferential treatment provided to lo-

cal sheiks. These soldiers understood the social and political context

in which the hospital operated and the extent to which it had to rely

on U.S. Army financial support. They used that knowledge to apply

their own and third-party pressure to convince the administrator to

increase the hospital’s hours and doctors.

This negotiation also demonstrates how an understanding of the

local area and culture and the individuals involved in a negotiation –

33

the entire context – can affect one’s strength in the negotiation.

One officer noted that it is important when negotiating in Iraq to let

30. Interview with BP, supra note 22, at 9 (“I would sit there and try to negotiate R

price. Basically, I would just try to bring them down to something that seemed a little

bit more reasonable to me. And really, on the Iraqi economy, I was ball-parking it. I

wasn’t somebody who was experienced in that sort of thing. I’m a soldier. By trade

I’m a soldier.”).

Id. at 26.

31. See Interview with JJ, supra note 22, at 14-17.

32. R

33. Interview with JD, supra note 22; see also Interview with BP, supra note 22, R

at 26; cf. D A. L & J K. S , T M N : B

AVID AX AMES EBENIUS HE ANAGER AS EGOTIATOR ARGAIN-

C C G 255 (1986).

ING FOR OOPERATION AND OMPETITIVE AIN

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Winter 2008] The Soldier and the Sheik 79

your counterpart know that you understand the dynamics of the situ-

34 If they were trying to take advantage of you, it calls atten-

ation.

tion to their deception, causing them to lose face. Almost all

negotiations pose a risk of one party taking advantage of another

poorly informed party. For soldiers conducting negotiations in SSTR

operations located in different countries with different cultures, lan-

guages, currency, customs, traditions, and norms, the potential is

even greater and the need to become well-informed even more impor-

tant. As a U.S. Army trainer with experience negotiating in Iraq di-

rected, “You have to be fanatical about understanding your area of

operations. It’s what you’re going to do for the next year of your life.

You wouldn’t move into a new house without knowing every nook and

cranny of it and getting it inspected. So why don’t you move into ne-

35

gotiation with the same intensity?”

The outcome of a SSTR negotiation cannot be understood with-

out understanding the context in which it took place. Effective nego-

tiation in such situations turns on the research and preparation

needed to appreciate the many particular elements that make up the

entire situation. The context in SSTR negotiations, as in all negotia-

tions, will have many variable elements, including, but not limited to,

different individuals, organizations, and structural relationships; dif-

ferent locations, politics, and history; different issues, priorities, and

interests; as well as cultural differences, power dynamics, and rela-

tionships. Analysis of the interviews conducted for this paper

strongly suggests that these latter three elements dominate the con-

text of any particular military-civilian SSTR negotiation, wielding

the most influence on how soldiers and sheiks conduct negotiations

and the outcomes of those negotiations.

Recommendation: Be Prepared and Strategic When

2. Negotiating and Exercising Power

First, U.S. soldiers negotiating with local civilian or military

leaders in SSTR operations should, in preparing for a negotiation,

choose a deliberate approach to conducting the interaction. When

considering which approach or strategy to use, U.S. soldiers will, as

part of the military decision-making and planning process, consider

the tactics needed to execute each strategy and the effects those tac-

tics may have on the outcome. They should ensure that they include

in their decision-making all of the many different contextual factors

34. Interview with JD, supra note 22. R

35. Interview with JV, supra note 22, at 17. R

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80 Harvard Negotiation Law Review [Vol. 13:67

that will influence their negotiating and affect the outcome. They

should also consider the relationship(s) involved and the military

unit’s priorities outside of the negotiation that may be affected by its

outcome or the tactics used. Whether soldiers focus on power or not,

their power in the negotiation will still play a fundamental role in

influencing the outcome. They should be strategic about how they

36

demonstrate and exercise that power.

There are numerous options, but they can be grouped into four

general strategic approaches described in the negotiation literature:

(1) Focus on power: Alternatively called contending, competition,

37

distributive bargaining, or claiming value.

(2) Focus on interests: Also called problem-solving, collabora-

38

tion, integrative bargaining, or creating value.

(3) Accommodate: Also referred to as yielding; relevant to a

party who values the relationship with his counterpart more

39

than the negotiation’s outcome.

(4) Avoid: Relevant when the cost of negotiating is higher than

the potential gain from the negotiation, or when a party can

40

achieve the same gain without negotiating.

There are appropriate times for each of these strategic choices,

and U.S. soldiers preparing for negotiations should consider the ad-

41 Focusing on interests and ac-

vantages and disadvantages of each.

both offer higher chances of securing agreement than

commodating

36. It may often be wise to downplay the obvious fact of highly asymmetric mili-

tary power as either a gesture of good will or a way of managing tension and dimin-

ishing the chances of conflict escalation. Two officers often removed their vests and

left their rifles outside of the room when in safe, well-guarded locations as a way of

See, e.g.,

decreasing the barriers between themselves and their Iraqi counterpart.

Interview with Captain RM, United States Marine Corps, at 11 (April 5, 2006) (“I

would take some of my gear off and try to be less threatening to these people. I began

just to present myself as a human being, because the more you try and hide behind all

your armor and your weapons and everything, you’re just more threatening. Again,

that’s just counterproductive.”).

See Dean G. Pruitt, Strategy in Negotiation, in I N :

37. NTERNATIONAL EGOTIATION

, A , I , supra note 17, at 85, 85 (citations omitted).

A R

NALYSIS PPROACHES SSUES

38. See id.

39. See id. at 85; R J. L ., T B Y S : T C

OY EWICKI ET AL HINK EFORE OU PEAK HE OM-

G S N 59 (1996).

PLETE UIDE TO TRATEGIC EGOTIATION

40. L , supra note 39, at 58. R

EWICKI

41. Mnookin et al. suggest that negotiators ask three questions when preparing

their strategy. They can be analogized to the military-civilian context: Is this the rare

situation when the military truly cannot afford anything but the precise outcome it is

demanding, given the relationships, competing priorities, and prospect of future nego-

tiations? How can I create value by exploring trades based on differences in prefer-

ences? Are there opportunities to accomplish more than the immediate desired

outcome by exploring a broader range of potential agreements that satisfy the soldier

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Winter 2008] The Soldier and the Sheik 81

focusing on power. Focusing on power offers a potentially more

favorable outcome for the stronger party if an agreement is reached,

but an agreement is much more difficult to secure and enforce after-

ward and entails several risks.

A part of being strategic is preparing for the negotiation and un-

derstanding thoroughly the context in which it takes place. That con-

text will shape the negotiation. The preparation taught at the NTC,

as discussed in Parts II and III, and other methods of preparation are

an important prerequisite to negotiating effectively. They are in-

cluded in recommendations offered below.

Culture in Context: The Relative Influence of Culture in

B. Military-Civilian SSTR Negotiations

The narratives of the U.S. officers interviewed for this paper pro-

vide a basis for drawing conclusions about the extent to which culture

and cultural differences influence the conduct of military-civilian ne-

gotiations in the unique and sophisticated context of an SSTR opera-

42 All of the U.S. officers interviewed for this study emphasized

tion.

the importance of understanding the cultural differences that exist

as well as the civilian and provide a platform for a continued productive relationship.

See R H. M ., B W : N C V

OBERT NOOKIN ET AL EYOND INNING EGOTIATING TO REATE ALUE IN

D D 225-26 (2000).

EALS AND ISPUTES

42. This study is consistent with appeals to examine the role of culture together

with other contextual factors in negotiation, presenting a dynamic view of culture in

negotiation, instead of a static, oversimplified study of group differences. See Michele

J. Gelfand & Jeanne M. Brett, Integrating Negotiation and Culture Research, in T

HE

H N C , supra note 21, at 419-22. My study ana- R

ANDBOOK OF EGOTIATION AND ULTURE

lyzes the interviews for conditions and factors that may make cultural difference

more or less influential in military-civilian negotiations in SSTR operations. I have

tried to avoid an oversimplified study of culture in these negotiations in favor of stud-

ying the role of culture in relation to other contextual variables, such as military

power, relationships, and the many conditions that exist in, and define, SSTR opera-

tions (the concurrent existence of violence, reconstruction and transition efforts,

newly formed civil governing institutions, a foreign military presence, psychology of

occupation). Unlike experimental research, this study has the advantage of present-

ing the multi-level “contextual complexity” in which cross-cultural negotiations take

See id. at 421; see also Robert A. Rubinstein, Cross-Cultural Considerations in

place. 19 N . J. 29, 32 (2003). The military-civilian SSTR

Complex Peace Operations, EGOT

negotiations discussed in this paper provide a rich sample in which individualistic

and national culture variables can be studied, as well as the macro levels of analysis

involving institutions and social networks (e.g. U.S. military culture, tribal organiza-

tion) as well as the structure of military occupation. Finally, the method used in this

study – narrative interviews – are, in the words of Gelfand and Brett, “essential” to

capturing the multi-level, contextual complexity of cultural dynamics. Gelfand &

supra, at 425.

Brett,

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82 Harvard Negotiation Law Review [Vol. 13:67

43 The details of their stories and

between U.S. soldiers and Iraqis.

comments revealed a more complex reality, however – one in which

cultural differences interacted with other elements of the overall con-

text, particularly the way in which power was exercised, displayed, or

perceived by U.S. military negotiators. Moreover, to say that culture

is “important” does not explain how cultural differences actually in-

fluence the way in which U.S. soldiers and their civilian counterparts

conduct negotiations, or how the presence of culturally different val-

44

ues or norms affect their strategies.

In this section I suggest that: (1) The influence of culture in mili-

45

tary-civilian SSTR negotiations can be significant. (2) The influ-

ence of culture is, however, dependent on (a) the relative, or variable,

influence that other elements in the negotiation’s context exert on the

parties, including the many different cultures (e.g. national, organi-

zational, ethnic, tribal, political, regional, professional) at play in a

negotiation and the many interacting contextual elements described

46

above, and (b) the negotiators’ individual personalities and negotia-

47

tion tactics. Therefore, even in the cross-cultural negotiations of

SSTR operations, cultural difference is only one of many factors a

U.S. soldier should consider when preparing for a negotiation, and so

he should not allow cultural difference to become a barrier to negoti-

ated agreement.

43. Army and Marine units now include cultural awareness and rudimentary

language training of some sort in their pre-deployment preparations, and the combat

training centers integrate such training throughout their exercises. Cultural under-

standing and languages have been central to the military’s Special Operations Forces,

civil affairs units, foreign-service officers, and language programs for many years.

This paper does not document the vast experience these specialties have in interact-

ing with civilians of different cultures. It does not attempt to document everything

the U.S military understands about how to operate in cross-cultural situations or

about particular cultures. It does not explore the U.S. military’s perspective on the

influence of culture. Nor is this is a primer on Iraqi culture.

44. Study of the role of culture in negotiation is still relatively young, but schol-

ars in the field have tried more recently to study it directly and apply research from

other fields to the topic. Gelfand and Brett’s The Handbook of Negotiation and Cul-

ture, supra note 21, is a substantial effort at bringing this research together. See also R

James K. Sebenius, Caveats for Cross-Border Negotiators, 18 N . J. 121 (2002).

EGOT

See, e.g., J M. B , N G : H N

45. EANNE RETT EGOTIATING LOBALLY OW TO EGOTIATE

D , R D , M D A C B

EALS ESOLVE ISPUTES AND AKE ECISIONS CROSS ULTURAL OUNDARIES

(2001); Gelfand & Brett, supra note 42; Rubinstein, supra note 42. R

46. See Shirli Kopelman & Mara Olekalns, Process in Cross-Cultural Negotia-

15 N . J. 373, 374 (1999); see generally Sebenius, supra note 44.

tions, R

EGOT

47. See Michael W. Morris & Michele J. Gelfand, Cultural Differences and Cogni-

in T H

tive Dynamics: Expanding the Cognitive Perspective on Negotiation, HE ANDBOOK

N C , supra note 21, at 45; Sebenius, supra note 44, at 122- R

OF EGOTIATION AND ULTURE

26.

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Winter 2008] The Soldier and the Sheik 83

Culture Can Matter

1.

Cultural difference can be a significant factor affecting military-

48

civilian negotiations in SSTR operations. Cultural values, norms,

institutions, and ideologies that are not shared by U.S. soldiers and

Iraqi civilians may cause each to pay different levels of attention to

the issues involved and to each other’s interests, to define appropri-

49

ate behaviors differently, and to interpret situations differently.

Some scholars suggest that three features of culture are related

to this variability of negotiation strategy among negotiators from dif-

ferent national cultures: individualism vs. collectivism, egalitarian-

ism vs. hierarchy, and the low-context vs. high-context norm for

50

communication. Another framework identifies five models for un-

derstanding the ways in which relations between military officers

and others can be culturally influenced: narrative and verbal styles,

context style, thinking and reasoning style, information processing

51

(ambiguity) style, and power style. These culturally variable fea-

tures shape the way people understand their experiences, but they do

52

not determine them. Culture is the “lens” that refracts the issues

53

or disputes to be negotiated.

This means that culture can affect the negotiation. Morris and

Gelfand conclude that three factors – the social context, the tasks

presented to the negotiator by the conflict or his counterparts, and

the negotiator’s state of mind – determine whether or not culturally

shared knowledge structures are likely to make a difference at the

54 These three

bargaining table due to their cross-cultural variation.

factors are helpful in identifying the sources of various conditions

that may affect a negotiation. For instance, some negotiator biases

may be culturally variable because the social judgments they reflect

48. A useful definition of culture refers to “socially transmitted values, beliefs

and symbols that are more or less shared by members of a social group. These consti-

tute the framework through which members interpret and attribute meaning to both

Culture as Context,

their own and others’ experiences and behavior.” Kevin Avruch, 9 H .

Culture as Communication: Considerations for Humanitarian Negotiators, ARV

. L. R . 391, 393 (2004).

N

EGOT EV

See B , supra note 45, at 7.

49. R

RETT

50. See id. at 15.

See Rubinstein, supra note 42, at 32-37.

51. R

52. Id. at 38.

See Kevin Avruch & Peter W. Black, Conflict Resolution in Intercultural Set-

53. in C R T P : I

tings: Problems and Prospects, ONFLICT ESOLUTION HEORY AND RACTICE NTE-

A 131, 131-32 (Dennis J.D. Sandole & Hugo van der Merwe

GRATION AND PPLICATION

eds., 1993). supra note 47, at 60-63.

54. Morris & Gelfand, R

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84 Harvard Negotiation Law Review [Vol. 13:67

55 Culture can influence the

are likely to diverge across cultures.

availability, accessibility, and activation of the social knowledge

structures or constructs that inform a negotiator’s cognition of the

56 This can lead to negotiators not sharing the

negotiation context.

same understanding of an issue or the same framework for thinking

about the issues involved in the negotiation. Morris and Gelfand use

these three factors to predict conditions under which cultural differ-

ences will be pronounced (and presumably more influential) or dimin-

ished, but the various conditions they cite amount to a conclusion

57

that cultural difference may or may not matter.

The interviews are consistent with this scholarship. Officers de-

scribed particular cultural differences and norms, mostly national

and ethnic, that affected their negotiations with Iraqi civilian leaders

by sometimes influencing what strategies they used while negotiat-

ing in Iraq. While these are necessarily specific to Iraq, their impact

on the conduct of negotiations can be generalized to provide insight

into the dynamics of military-civilian negotiations in SSTR opera-

tions, as well as possible tactics for, and responses by, U.S. military

58

negotiators.

Most officers said explicitly that it was essential to understand

the local customs and culture. Many claimed it was the most impor-

tant factor, saying that understanding the culture of their counter-

part was the most important variable in negotiating successfully.

For instance, a Marine commander stationed near Tall Afar noted

that without appreciating the culture, the nuances of cultural differ-

ence between Americans and Iraqis, and the role within Iraqi culture

59

of the sheik and tribe, “you fail at whatever you need to do.”

This is an important observation because cultural differences

have sometimes created misunderstanding and even disgust on both

55. See id. at 45-53.

56. Id. at 54.

57. For instance, in discussing conditions of the social context which may have an

impact on activation of knowledge structures that, in turn, may vary across cultures,

Morris and Gelfand demonstrate how contextual all of these variables are. Therefore,

they are dependent on context, the facts and issues of the negotiation, and the per-

See id. at 60-65.

sonal characteristics of the parties a cross-cultural negotiation is.

58. This paper takes care not to make too broad a claim with respect to the cul-

tural differences that affect negotiations between the U.S. military and civilians in

Iraq. Given the broad experience of the fourteen interviewees, however, the experi-

ence described in their narratives appears to be representative and to capture the

most pertinent cultural dynamics.

supra note 22, at 31, 45. This reflects the necessity of

59. Interview with JW, R

“cultural competence” for successful cross-cultural negotiation. See Avruch, supra

note 48, at 394. R

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Winter 2008] The Soldier and the Sheik 85

60 A civil-military relations officer as-

sides of U.S.-Iraqi interactions.

sessing the general prerequisite of trust in Iraqi culture acknowl-

edged that “[t]here is not a lot of trust between men in a place like

Iraq. However, the appearance of trust (or the societal obligation to

61

demonstrate trust) is almost as powerful as trust itself.” Because of

their different ways of communicating and relating, U.S. soldiers and

Iraqis interpret differently statements made to each other in negotia-

tions and attribute different meanings to them. For example, U.S.

soldiers and Iraqi civilians exhibit different notions of commitment

62

and degrees of willingness to make promises. Iraqis are more likely

to understand some statements made by U.S. officers to be promises

63

when no promise was intended. U.S. officers negotiating with Iraqi

civilians therefore need a sophisticated understanding of their cul-

tural differences and an ability to utilize that understanding effec-

tively and productively.

2. The Influence of Culture is Relative

The officers’ descriptions of their experience confirm that cul-

tural differences exist between U.S. soldiers and civilian leaders in

SSTR operations and that cultural difference has the potential to in-

fluence the success or failure of a negotiation from the perspective of

the U.S. soldier. The officers emphasize that understanding the rele-

64

vant cultural styles helped them negotiate. Yet, their experience

also uniformly shows that culture’s influence on the conduct of any

given negotiation is dependent on many other contextual factors.

The dynamic, variable interaction of factors, such as the parties’ in-

terests, power, constituency demands, potential to apply force, his-

tory, politics, psychology, personality, as well as culture, means that

no two negotiations will be the same. The influence that culture will

have on a negotiation depends on how these factors influence the par-

ties and whether they trigger culturally-specific responses or even

60. Interview with EH, supra note 21, at 4.

61. Id. at 10; see also Telephone Interview with Lieutenant HB, Wis. Nat’l Guard

(Ret.), at 12, 33 (Feb. 16, 2006) (suggesting that trust was relatively low and always

contingent on verification).

See, e.g., Interview with DS, supra note 22, at 17; Interview with JV, supra

62. R

note 22, at 23-26. R

63. See, e.g., Interview with Captain IW, (Mar. 2, 2006) at 3; Interview with JV,

supra note 22, at 7-8; see also Interview with RM, supra note 36. R

64. Cf. Rubinstein, supra note 42, at 38 (discussing potential conflicts arising R

from conflicting approaches to peace operations).

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86 Harvard Negotiation Law Review [Vol. 13:67

65 Culture is not always

override the differences in cultural values.

an important factor.

A relationship observed across the interviews – that between

power and cultural difference – illustrates just how highly contextual

the role of culture is in negotiations, even between two parties as cul-

turally different as American soldiers and Iraqi sheiks. Cultural dif-

ferences may have less effect in a negotiation when power increases

in importance, which happens when the relative power between the

parties becomes more imbalanced. In other words, the greater the

asymmetry of power between the parties (or perception of such), the

greater the chance that the cultural differences between them will

66

play less of a role in affecting how the parties negotiate. The

stronger party will have the power to ignore or violate the cultural

norms of the weaker party with less risk of consequences. As will be

discussed in the next section, there are substantial reasons to believe

that this would rarely be a productive use of one’s negotiating power

67

in the context of a military’s relatively long-term SSTR mission. It

may also decrease one’s power in the negotiation itself, if the weaker

68

party’s response leads to an increase in his power. This relation-

ship demonstrates that the influence of cultural difference will be, or

can be, minimal in many military-civilian negotiations beyond the

69

cultural niceties of polite negotiators.

The interviews suggest further that biases, perspectives, and the

many other conditions that affect negotiation are not always different

across cultures. There are three explanations. First, often the gen-

eral stereotypes of national or ethnic cultures do not apply to individ-

70

ual negotiators who are members of that national or ethnic group.

65. See Kopelman & Olekalns, supra note 46, at 374. R

66. This is consistent with international negotiation research that suggests that

negotiations characterized by large asymmetries of power between the parties may be

Symmetry and Asymmetry in

more efficient. I. William Zartman & Jeffrey Z. Rubin,

in P N 271, 272-74 (I. William Zartman & Jeffrey Z.

Negotiation, OWER AND EGOTIATION Symmetry and Asymmetry].

Rubin eds., 2000) [hereinafter Zartman & Rubin,

67. As discussed below, the relationship between the parties plays an important

role and may override this effect.

68. See Jeswald W. Salacuse, Lessons for Practice, in P N ,

OWER AND EGOTIATION

supra note 66, at 255, 256-57. R

69. But see Interview with RM, supra note 36, at 7, 10 (stating that cultural dif- R

ferences did not matter as long as one was aware of them).

70. The likelihood that an individual will exhibit the most likely (average) group

characteristics is actually rather low. See Sebenius, supra note 44, at 122-26. This R

“prototypicality error” may be worse than ignoring differences of national culture alto-

Id.

gether.

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Winter 2008] The Soldier and the Sheik 87

Second, while there are cultural differences, there are also similari-

ties, and those similarities may in any given negotiation be more im-

71 Finally, in many cases, the social

portant than the differences.

knowledge structures informed by culture and reflecting cultural dif-

ferences may not be activated in a negotiation and never become a

72

factor. Some officers understood this and put culture into context.

Yet, some of the interviewed officers demonstrated a tendency to

overemphasize the role of culture in the negotiations they described,

which may explain the overwhelming proportion of the officers who

said that culture was the most important factor in their negotia-

73 The same tendencies may have reflected information bias, a

tions.

widely-studied phenomenon in which negotiators interpret informa-

74

tion favorably to their side and exaggerate the other side’s position.

Analysis of the narrative interviews in this study suggests that

negotiation theory should take neither an entirely universalist nor

relativist approach to culture in negotiations. A universalist ap-

proach suggests that culture does not matter; negotiators everywhere

71. One similarity noted in the interviews was the familiarity of communicating

in the language of the military. Two officers observed that Iraqi civilians had dealt

with an ever-present military for so long that the differences between military and

civilian cultures were not a factor in their negotiations. It may have been easier in

some ways for U.S. soldiers to communicate with Iraqi civilians than to communicate

with other civilians, such as aid workers, who are not used to working with soldiers.

See Interview with EH, supra note 22, at 15; Interview with JJ, supra note 22, at 30. R

72. The officers interviewed who worked on reconstruction while serving in Iraq

uniformly said that money played a powerful role in these negotiations. Money, one

supra note 22, at 20. They

officer said, is a “universal language.” Interview with DS, R

noted that the business character of reconstruction contract negotiations broke

through the cultural differences that may otherwise have prevented effective coopera-

See e.g., Interview with BP, supra note 22, at 13-14. One officer concluded that

tion. R

in such negotiations, money was the most important lever of power, which he used

frequently to help him secure fair prices, guarantees of timely completion, and to en-

See Interview with EH, supra note 22, at 12.

force standards of construction quality. R

73. A number of officers viewed their counterparts’ reluctance to make commit-

ments as exclusively reflecting a cultural norm instead of possibly resulting from the

negotiation’s failure to meet the Iraqi’s interests sufficient to motivate a firm commit-

ment. The cultural dynamic cited is epitomized by Iraqis’ use of “Inshallah,” which

See Interview with CG, supra note 22, at 31-32; Inter-

means “God willing” in Arabic. R

view with JW, supra note 22, at 38, 45; Interview with MM, supra note 22, at 5-7. R

This could reflect an excessive attribution of Iraqi behavior to national or ethnic cul-

See Avruch, supra note 48, at 405; Sebenius, supra note 44, at 126-28 (citing the

ture. R

misguided tendency to view national culture as the indispensable key to explaining

and predicting the behavior of one’s counterpart and blaming culture for unwanted

outcomes instead of focusing on more important contextual factors such as power,

economics, or interests).

74. For more on self-serving perceptions of a negotiator’s side and partisan per-

supra note 44, at

ceptions of the other side in the cross-cultural context, see Sebenius, R

129.

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88 Harvard Negotiation Law Review [Vol. 13:67

share the same biases and think about conflict and dealmaking in the

75 The relativist approach suggests that all of the biases

same ways.

and perspectives pertinent to negotiation vary across cultures,

preventing entirely the application of negotiation research from one

76

culture to the negotiators of another culture. The evidence here

and a substantial amount of negotiation literature recognizes that

neither extreme is realistic. However, that study of cross-cultural ne-

gotiations supports a universalistic-leaning notion that there will

often be less cultural variance in cross-cultural military-civilian

77

SSTR negotiations than is often assumed.

Finally, U.S. officers negotiating with Iraqis can control and

78

manage the effect that culture has on the negotiation. A number of

officers successfully managed the conditions of the negotiations and

their own behavior to effectively neutralize a potential barrier to

agreement posed by a cultural difference. Or they simply set the con-

ditions of the negotiation to maximize the possibility for an optimal

outcome, given the likely influence of a particular cultural norm of

which the officer was aware. Several of the officers demonstrated a

cultural competence derived from their extensive study of Iraqi na-

tional and tribal culture, their astute situational awareness of the

area in which they were operating, including the local politics and

79

economy, and their own personal skills. They used this to antici-

pate, manage, and operate effectively in the cross-cultural environ-

ment, often eliminating cultural difference as a factor or barrier to

agreement. Morris and Gelfand arrive at a conclusion that is sup-

ported by this analysis of this study’s interviews – that culture can

have an important effect on a negotiation but is highly contextual

and can even be manipulated, managed, or diminished by astute and

75. See Morris & Gelfand, supra note 47, at 53. R

76. Id.

77. For a similar perspective, see generally, Sebenius, supra note 44 R

78. See generally Interview with RM, supra note 36 (showing interests, trust, and R

relationships to be paramount, and cultural differences largely irrelevant, in his nego-

tiations); Interview with DS, supra note 22, at 22 (stating that it was important to R

“not let [cultural awareness training] push around the way business should be done.

Like, we’re there to do a job, and either you can help us do that job or not . . . . This is

what I need and if you can’t provide that, then I’m sorry. Then I will look elsewhere.

It’s no different than how we would operate here.”).

79. Several officers believed that personality was as likely to have a powerful

effect on a negotiation as culture. See, e.g., Interview with JW, supra note 22; Inter- R

view with EH, supra note 22; Interview with BP, supra note 22; Interview with RM, R

supra note 36. See also Kopelman & Olekalns, supra note 46, at 375-76 (discussing R

the importance of rapport).

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Winter 2008] The Soldier and the Sheik 89

80 It may often be advantageous, for instance, to

effective negotiators.

effectively anticipate a cultural norm in order to diminish its effect or

complement it to the advantage of securing a commitment, instead of

81

mimicking the Iraqi counterpart’s culture.

3. Recommendation: Understand, Manage, and Adapt to

Cultural Differences

One of the major lessons from this study is that U.S. soldiers op-

erating in SSTR environments conducting frequent negotiations with

civilian leaders in the local population must operate with an acute

awareness – based on a thorough understanding of the culture – of

the many contextual factors that can and might influence their nego-

tiations. These factors include conditions that are culturally variable

and may present cultural barriers to an agreement. This will allow

skilled negotiators to control or manage some of these contextual fac-

tors and cultural conditions, in order to maximize the potential for an

optimal outcome.

First, soldier-negotiators operating in an SSTR environment – as

opposed to an exclusively kinetic, combat operation – must under-

stand the culture of their counterparts. The U.S. military’s integra-

tion of cultural awareness into its pre-deployment training suggests

its belief that cultural awareness is not only diplomatically beneficial,

but that soldiers can utilize that knowledge tactically in a negotia-

tion. The soldier should not only understand the “culture” in a ge-

neric way but should understand what cultural variables will be

potentially in play in a negotiation, given the other factors making up

the context. He should consider what elements are present in the

negotiation’s context that may accentuate or diminish such cultural

variables.

U.S. soldiers should also be aware that context may change the

cultural variables and reduce or enlarge the cultural differences be-

tween the parties. For instance, Rubinstein has noted in the context

of peace operations that failure to pay attention to the changing na-

ture of normative expectations can lead to counterproductive conse-

82 The unique context of SSTR operations means that

quences.

80. See Morris & Gelfand, supra note 47, at 64-65 (noting that their theory shows R

how negotiators can control and mange cultural influences as active participants in

creating and managing culture).

81. See Sebenius, supra note 44, at 130. R

82. Rubinstein, supra note 42, at 43. R

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90 Harvard Negotiation Law Review [Vol. 13:67

generalized theories of culture and negotiation may not apply, be-

cause cultural norms can themselves change in response to new so-

cial and environmental conditions, such as the occupation of one’s

country and disintegration of political and governmental order and

83 That is, the context of the SSTR operation may alter

institutions.

the cultural skeleton of the negotiation, influencing culture rather

84 Some officers noted that

than culture influencing the negotiation.

Iraqis adapted to the communication styles of U.S. soldiers, diminish-

ing the importance of certain cultural norms. Context may rule.

Second, a U.S. military negotiator can use this understanding of

the cultural differences to manage his behavior and try to prevent

activation of certain culturally variable factors that could present an

85

obstacle to the negotiation. This requires a thorough understand-

ing of the other’s culture and an ability to reflect on one’s own cul-

tural and cognitive biases and control them.

Third, a U.S. soldier-negotiator can use his understanding and

awareness to control conditions that may trigger the activation of his

counterpart’s cultural responses, such as setting the atmosphere,

86

controlling the pace, or demanding proof. The interviews suggest

several other ways that U.S. military negotiators could do this in the

particular setting of SSTR operations.

A soldier’s ability to navigate the cultural dynamics inherent in

these negotiations can have an effect on the success or failure of the

negotiation. The U.S. military is already aware of this and has em-

braced the need to better understand the culture with which it inter-

87

acts in SSTR operations such as those in Iraq and Afghanistan.

C. Power and Relationships

The study’s interviews support and reflect the view of the negoti-

ation literature that each party’s power in a negotiation is highly con-

text-dependent. Analysis of power in these military-civilian SSTR

83. See id. at 42. The changes that resulted from OIF and the ensuing SSTR

operation may have precipitated changes in cultural norms because they cause frac-

tures in traditional attitudes and the normative order surrounding social

relationships.

See id.; but cf. Avruch, supra note 48, at 400 (noting that culture is neither

84. R

timeless nor changeless but emerges in new forms out of changing social context).

See Morris & Gelfand, supra note 47, at 65. For instance, perception of time

85. R

is one difference between U.S. soldiers and Iraqis that is both cultural and organiza-

tional. Several officers mentioned that their impatience in negotiations became a bar-

See, e.g., Interview with TS, supra note 22, at 23.

rier to agreement. R

86. See Morris & Gelfand, supra note 47, at 65. R

87. See, e.g., 2004 CALL Report, supra note 3, at 39-42. R

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Winter 2008] The Soldier and the Sheik 91

negotiations confirms that power in negotiations is “notoriously slip-

88 On the one hand, the obviousness and overwhelming nature

pery.”

of the U.S. military’s occupation as the legitimate superior force in

89 On the

Iraq is a commanding factor in negotiations with civilians.

other hand, this power is far from absolute, a reality which compli-

cates the relationships between the U.S. military and civilian lead-

ers. This is why so many military-civilian interactions in Iraq are

negotiations, instead of one-way communications.

There is good reason to explore the particular contours of power

in military-civilian negotiations in SSTR operations. It has the po-

tential to provide a number of lessons for the U.S. military con-

ducting SSTR operations in the future, whether in Iraq, Afghanistan

90 U.S. military negotiators will benefit tactically from

or elsewhere.

thinking about how power affects the conduct of their negotiations.

Understanding the relative balance of power between the occupying

military and corresponding civilian leaders, how power is perceived

and exercised by the parties, and how the relative power of the par-

ties can change during the course of the negotiation may help soldier-

91

negotiators achieve their objectives.

This section explores these issues but does not engage merely in

92 It first discusses nego-

an analysis of the parties’ bargaining power.

tiating power from a theoretical perspective, drawing on leading re-

search from the field of negotiation. It then describes how power is

constituted and exercised in military-civilian SSTR negotiations.

This includes the issue of military force, the officers’ perceptions of

their negotiating power, and the interaction between interests,

rights, and power in these negotiations. It also includes the tension

between creating and claiming value. Finally, this section concludes

88. L & S , supra note 33, at 249. R

AX EBENIUS

89. Interview with JJ, supra note 22, at 31. R

90. Negotiating power is a practical subject for negotiators to think about, but

See Salacuse, supra note 68, at

most negotiators do not think about a theory of power. R

255. This is unfortunate in the SSTR context, because power is such a central ele-

ment in the military-civilian negotiations. If negotiators do not examine their power

in a rational and systematic way, they may not use it as wisely as they otherwise

Id. at 256.

could.

91. Just as the U.S. Army National Training Center’s lead negotiation trainer

emphasizes preparation and understanding the area of operations as necessary to

successful negotiation in Iraq, this suggestion puts forward the idea that an under-

standing of the dynamics of power in negotiations, especially military-civilian ones,

can give a negotiator an advantage.

92. Lax & Sebenius warn that analyzing power in and of itself can be a sterile

exercise and suggest focusing instead on the factors that change perceptions of the

See L & S ,

bargaining set and how those changes can influence outcomes. AX EBENIUS

supra note 33, at 257. R

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92 Harvard Negotiation Law Review [Vol. 13:67

with a discussion of the effect that relationships – and their impor-

tance to the military in an SSTR operation – have on such negotia-

tions, in particular the interaction between relationships, culture,

and power.

1. Power in Negotiation Theory

Negotiating power, reduced to its most elementary form, depends

on the alternative available to each party, understood as the strength

93

of one’s best alternative to a negotiated agreement (BATNA). The

power that comes from having alternatives depends, however, on how

the parties perceive those alternatives and the other party’s assess-

ment of the alternatives. For this reason, the term estimated alterna-

tive to a negotiated agreement (EATNA) is sometimes used because it

reflects the human and cognitive complications of defining one’s ne-

94

gotiating power. The narrowly structuralist definition of power is

95

limited, however, in its ability to explain negotiation outcomes.

The best way to understand the negotiating power of a party is to

define it as “an action by one party which is intended to produce

96

movement by another.”

Lax and Sebenius provide a description of negotiating power that

is helpful in understanding the complexity of power’s role in SSTR

negotiations. Generally, power is associated with the “ability to fa-

97

vorably change the bargaining set.” The bargaining set under

which a negotiator operates is a probability distribution of different

98 A favorable change in the bargaining set is a

potential outcomes.

revised probability distribution – that the negotiator prefers to the

original distribution and that reflects a change in the various likeli-

hoods of outcomes – caused by a new tactic, a new factor injected into

93. See, e.g., R F , W U & B P , G Y :

OGER ISHER ILLIAM RY RUCE ATTON ETTING TO ES

A W G I 100 (Penguin Books 1991) (1981); Rus-

N

EGOTIATING GREEMENT ITHOUT IVING N

Bargaining Power as Threat of Impasse, in Three Conceptions of Power,

sell Korobkin,

. L. R . 867, 867-68 (2004); Zartman, supra note 17, at 75.

87 M R

ARQ EV

94. See Heidi Burgess & Guy Burgess, Constructive Confrontation: A Strategy for

(Conflict Research Consortium,

Dealing with Intractable Environmental Conflicts,

available at http://www.colorado.edu/conflict/full_text

Working Paper No. 97-1, 1997),

_search/AllCRCDocs/97-1.htm.

95. See Zartman, supra note 17, at 74. R

96. I. William Zartman & Jeffrey Z. Rubin, The Study of Power and the Practice

in P N , supra note 66, at 3, 8 [hereinafter

of Negotiation, R

OWER AND EGOTIATION

Zartman & Rubin, Power and Practice].

97. L & S , supra note 33, at 250. R

AX EBENIUS

98. Id. at 251.

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Winter 2008] The Soldier and the Sheik 93

the negotiation, or a change in the actual or perceived parties’ rela-

99 Of course, the bargaining set can potentially shift in

tive power.

various directions.

Whether a negotiator has achieved a favorable change in the bar-

gaining set depends on the negotiator’s subjective distribution of be-

liefs about how the negotiated outcome that is conditional on using a

new tactic compares with his subjective distribution of beliefs about

100

the outcome that is conditional on not using the tactic. The U.S.

Army’s negotiation training regime at the U.S. Army National Train-

ing Center seems to implicitly understand this. As discussed in more

detail below, the training is focused on using a system of preparation

that mirrors the Military Decision Making Process (MDMP). The

MDMP includes wargaming and assessments of potential alternative

outcomes, which is analogous to Lax and Sebenius’ bargaining set

and the potential favorable or unfavorable shifts in the bargaining

set that the commander’s tactical decisions can cause. The process

leads to a commander’s judgment call on what course of action is pref-

erable. This must involve a comparison of the subjective distribution

of beliefs about the various potential outcomes which are conditional

on different tactical decisions.

The concept of power in negotiations is complex because power

cannot be identified by just one characteristic, and there is no general

101 There are

model for explaining its role and effect in negotiations.

many different ways to define and understand negotiation power,

and different types can be used in different settings and in different

102 Keltner identifies four types of power: structural, agree-

ways.

ment, persuasive, and performance. Lax and Sebenius identify five

103 While not de-

factors that serve as underlying bases of power.

scribed as types of power, they complement Keltner’s four types. The

coercion, is discussed more below. Remuneration refers to the

first,

ability to trade, to offer something of value in exchange for the de-

Identification takes into account the ability of a

sired agreement.

leader or negotiator’s charisma to exert pressure on or influence the

99. Cf. id.

Id. at 251 n.5.

100.

101. See Jayne Seminare Docherty, Power in the Social/Political Realm, in Three

87 M . L. R . 860, 864-65 (2004) (“[P]ower comes in many

Conceptions of Power, ARQ EV

forms, and the motivation to use different forms of power in any given situation is a

& S , supra note 33, at 251, n.5.

complex process . . . .”); L R

AX EBENIUS

102. See J W. K , T M S : E D

OHN ELTNER HE ANAGEMENT OF TRUGGLE LEMENTS OF IS-

R N , M , A 49-63 (1994).

PUTE ESOLUTION THROUGH EGOTIATION EDIATION AND RBITRATION

103. For a more complete description of these five factors, see L & S ,

AX EBENIUS

supra note 33, at 255-58. R

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94 Harvard Negotiation Law Review [Vol. 13:67

104 Normative con-

other party, similar to Keltner’s persuasive power.

refers to the power exerted when a negotiator claims his posi-

formity

tion is right, legitimate, or carries some principled weight. This

corresponds to Fisher et al’s theory of principled, interest-based nego-

Knowledge can be a basis for power because information can

tiation.

change the understanding of the parties as to the value of various

105

potential agreements.

Coercive power focuses on the ability to “win,” to get what one

106 This is the ability to convince a

wants and protect one’s interests.

party to do something that is not in the party’s interests to do, that is,

107

to “bend the opponent to your will.” Parties with poor BATNA’s

who cannot otherwise credibly persuade the other party that their

BATNA is higher than it truly is will find themselves weaker relative

108 Scholars have identified various

to their negotiating counterpart.

forms of coercive power. Docherty describes three forms of coercive

109 Direct power

power: direct, process, and the power of the spoiler.

is the rawest form. It concerns who participates, who gains and who

Process power concerns the ability to shape the negotiation

loses.

process, control the agenda, and include or exclude certain parties.

Power of the spoiler refers to the power held by secondary parties

away from the negotiating table who could prevent agreement. Coer-

cive power springs from the ability to leave the negotiation table or

110

deprive the opposing party of something it needs.

Each of these types of coercive power, as well as some of the

forms of power described above, exist in military-civilian SSTR nego-

tiations and can be exercised by the parties. In the experience of the

interviewees, they are used by both sides in negotiations.

104. See K , supra note 102, at 77. R

ELTNER

105. In addition to L & S , supra note 33, see Howard Raiffa, Analytical R

AX EBENIUS

Barriers, in B C R 132, 139 (Kenneth J. Arrow et al.

ARRIERS TO ONFLICT ESOLUTION

eds., 1995). supra note 101, at 862.

106. Docherty, R

107. R K , N T S 151 (2002); see also

USSELL OROBKIN EGOTIATION HEORY AND TRATEGY

W L. U ., G D R : D S C

ILLIAM RY ET AL ETTING ISPUTES ESOLVED ESIGNING YSTEMS TO UT THE

C C 7 (2d ed. 1993).

OSTS OF ONFLICT

See K , supra note 107, at 156-62.

108. R

OROBKIN

109. Docherty, supra note 101, at 865. R

110. See Max H. Bazerman et al., Enlarging the Societal Pie — A Cognitive Per-

15-18 (Harvard Negotiations, Orgs. & Mkts. Unit, Working Paper No. 02-17,

spective

available at http://ssrn.com/abstract=310166.

2001),

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Winter 2008] The Soldier and the Sheik 95

The Constitution and Exercise of Power in Military-Civilian

2. SSTR Negotiations

The negotiating strength of a U.S. military officer in an SSTR

operation is not as simple as his or her BATNA or EATNA. Power is

111 It would also be a mistake to think that

dynamic and situational.

a U.S. military negotiator’s power is limited to his ability to apply

112 Traditional indicia of power – political power, wealth, pres-

force.

tige, social influence, governmental or statutory authority, or most

relevant to this study, military superiority, control, and ability to ap-

ply force – may not necessarily translate into power at the negotiat-

113 A party’s power can come as much from the making of a

ing table.

credible threat as from the actual capability to carry out the

114 115 116

Perception plays an important role, as can patience.

threat.

A skillful negotiator can increase and exercise his power through

117

communicative processes that enable him to exercise influence.

Even with a weak BATNA, the capacity to use what latent or poten-

tial power one does have is itself a form of power, because it can affect

118 These latter

the way the other party in a negotiation behaves.

111. See Korobkin, supra note 93, at 867; Zartman, supra note 17, at 76. R

112. See Interview with RM, supra note 36, at 10 (“It would be totally R

counterproductive.”).

See David C. King & Richard J. Zeckhauser, Legislators as Negotiators, in

113.

N B O 208 (Robert H. Mnookin & Lawrence E. Susskind

EGOTIATING ON EHALF OF THERS

& S , supra note 33, at 250 (citing T S , T

eds., 1999); L R

AX EBENIUS HOMAS CHELLING HE

S C 22 (1960)) (“[M]ore military potency [and other traditional in-

TRATEGY OF ONFLICT

dicia of power] are by no means universal advantages in bargaining situations; they

see also Interview with JJ, supra note 22, at 32 (“It was

often have a contrary value.”); R

knowing the theory that we were not there – as an organization, understanding that

we were not there to force people to do things at gunpoint. We purposely subjugated

ourselves to the District Advisory Council in order to legitimize that government.”);

see generally, Zartman & Rubin, Symmetry and Asymmetry, supra note 66. R

114. See K , supra note 93, at 868. R

OROBKIN

115. See U ., supra note 107, at 8. R

RY ET AL

116. See K , supra note 93, at 870-71 (The interviews show that some- R

OROBKIN

times U.S. military negotiators would refuse to concede an issue for weeks during an

ongoing negotiation to demonstrate their unit’s power, to call the bluff of their Iraqi

counterpart, or to demonstrate that they would not be pushed around.); Interview

supra note 22, at 22-23. While this is an example of the Army unit asserting

with JJ, R

its power through its ability to be patient, it also suggests that the Iraqi negotiators

were asserting forms of power that the U.S. soldiers felt they needed to resist.

See, e.g., K , supra note 102, at 45 (“Power is a potential and actual

117. R

ELTNER

process of intentionally influencing events, beliefs, emotions, values, and behavior of

others in order to satisfy self and/or others’ needs and desires by performing some

Symmetry

actions which are basically communicative in nature.”); Zartman & Rubin,

supra note 66, at 281.

and Asymmetry, R

118. See Docherty, supra note 101, at 863-64; Zartman & Rubin, Symmetry and R

Asymmetry, supra note 66, at 277 (discussing the tactics weaker parties employ as R

counterstrategies to the domination by stronger parties).

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96 Harvard Negotiation Law Review [Vol. 13:67

techniques of asserting power in a negotiation are particularly impor-

tant in the context of a military-civilian interaction, where coercive

power is more likely (but not always) to be imbalanced. A U.S. sol-

dier negotiating in an SSTR operation should be aware of these forms

of power – not only because he could exercise them when possible but

because his negotiating counterparts are very likely to attempt to ex-

119

ercise such power.

For these reasons, it is hard to generalize about the amount and

nature of power held by the U.S. military or its Iraqi civilian counter-

parts, except in two ways: First, the U.S. military has and continues

to have (though in changing forms) overwhelming coercive power of

one kind – the application or threat of direct military force, including

lethal force, arrest, detention, raids, and searches – by obvious virtue

of the control that comes with its military control of Iraq and its supe-

rior military capability. One officer noted that “[i]t was unavoidable

in the negotiations. It was a fact. I walked into the negotiation with

a 9mm pistol on my hip . . . . It was an unavoidable fact that my

presence there was justified only by my ability to maintain it through

violence. And that was accepted. I didn’t apologize for it but I tried

120

not to push people around for it.”

Second, the U.S. military operates under a number of structural

and political constraints that necessarily restrains its use of military

121 These two exceptions may not be of equal weight, however.

power.

The experience of this study’s interviewees suggests that the coercive

power held by the military – whether exercised or not – is an ever-

122 while the constraints that mitigate

present fact in negotiations,

119. See Zartman & Rubin, Symmetry and Asymmetry, supra note 66, at 277 (not- R

ing that weak parties may be cooperative or evasive but not submissive; instead they

bluster, dawdle, appeal, borrow power, exercise a veto, etc.).

supra note 22, at 31.

120. Interview with JJ, R

121. The U.S. military is constrained by U.S. and international law as well as its

See, e.g., Geneva Con-

own policies, practices, procedures, protocols, and standards.

vention Relative to the Treatment of Civilian Persons in Time of War, Aug. 12, 1949,

6 U.S.T. 3516; Uniform Code of Military Justice, 10 U.S.C. §§ 801-950 (2000); SASO

M , supra note 2. Just as important, it has mission-specific objectives

F R

IELD ANUAL

(e.g. establishing local government councils, training security forces, and building in-

dependent Iraqi institutions) and political imperatives – supporting the transition

from U.S. control to Iraqi sovereignty – which requires the U.S. military to respect

Iraqi sovereign authority in many situations. This is increasingly the case in Iraq, as

the U.S. pushes to hand over control of the country to Iraqis and its security forces.

See Interview with BP, supra note 22, at 11 (“[T]here’s a lot of negotiating

122. R

power when you’re sitting at a table, like we are, say with an interpreter over here

and right in front of you, in between us, is an M16.”).

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Winter 2008] The Soldier and the Sheik 97

that power are more dependent on the situation and context. Never-

theless, beyond (or in spite of) these two factors, the parties in mili-

tary-civilian SSTR negotiations have varying relative amounts of

power in any given negotiation that are constituted by a variety of

factors and exercised in many different ways.

Force and Power in Military-Civilian SSTR Negotiations

(a)

Even though the power of the U.S. military is mitigated by vari-

ous factors in the unique context of an SSTR operation, some mili-

tary-civilian negotiations continue to take place in an environment

characterized by the overwhelming presence of military force and

power. It is important to remember that application of force may

often remain an option and the threat of force may sometimes be

used. Therefore, when studying the factors that constitute U.S.

soldiers’ negotiating power and perception of their power in negotia-

tions with civilians, as well as any tactical decisions to try to exercise

that power, I paid particular attention to the role played by force.

Analysis of the interviews shows that officers negotiating in Iraq

almost always conducted negotiations in which their coercive power

was substantially greater than the power of their Iraqi counterpart or

in which the officers perceived their power to be significantly greater.

In such cases, the U.S. negotiators often exercised their dispropor-

123 This is

tionate power by demanding agreement on their terms.

consistent with negotiation research suggesting that parties with

124 However, the

more coercive power tend to exercise their power.

negotiations described in the interviews rarely included the direct

use or threat of military force. One negotiation discussed by the of-

ficers that did include use or threat of force involved a sheik’s initial

detention during a raid and the later threat, during negotiations, of

125 In a larger sample, there are likely to be more such

his arrest.

uses or threats of force as a way of exercising power.

The interviews suggest instead that it is much more common for

officers to use indicia of force to demonstrate their ability to exercise

force as an alternative to negotiation, hoping thereby to increase or

123. See, e.g., Interview with CG, supra note 22, at 46 (discussing threats to dis- R

continue funding); Interview with JW, supra note 22, at 16-21 (discussing negotia- R

tions with local sheik seeking release of prisoners in which JW kept sheik waiting for

30-60 minutes as demonstration of power and refused to release the prisoners).

See Zartman & Rubin, Power and Practice, supra note 96, at 16-17; Zartman

124. R

& Rubin, Symmetry and Asymmetry, supra note 66, at 275-77 (providing support for R

the proposition that negotiators with high relative power tend to behave

exploitatively). supra note 22, at 13.

125. Interview with EH, R

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98 Harvard Negotiation Law Review [Vol. 13:67

126 One officer arrived at a negotia-

bolster their negotiating power.

tion with a deliberately over-sized contingent of soldiers as a show of

127 Another threatened at the

force to demonstrate his seriousness.

end of a negotiation that if his Iraqi counterparts did not fulfill the

commitments made during the negotiation, he would return the next

128 In a

day with a lot of soldiers, and “we will discuss this again.”

negotiation with the director of an electric power station that sup-

plied his base but had not been providing power consistently, the

base commander first asked for and listened to the director’s reasons

why his workers were cutting off the base’s power. He then re-

sponded by trying to guarantee their safety from insurgent threats,

but he added that if his safety guarantee was not effective in restor-

ing power to the base, he would resort to force and permanently oc-

129

cupy the power station.

While these negotiations did not include the use of actual force,

they included explicit or implicit threats of force. In these instances,

the officers were trying to take tactical advantage of what they per-

ceived to be asymmetric power in their favor by influencing the per-

ceptions of their counterparts. In many cases, the negotiations led to

successful agreements that satisfied the U.S. military negotiator.

This supports relatively new research findings that power asymme-

try may actually lead to negotiations that are more efficient and ef-

130

fective than ones characterized by near-symmetric power.

Sometimes the results were not as clear, however.

When a civil-military operations unit of the Fourth Infantry Di-

vision was attacked in August of 2003 after two and a half months of

peaceful operations just north of Baghdad, the commander called a

131 Describing the interac-

city council meeting of the local sheiks.

tions between the U.S. Army unit and the local Iraqi leaders, one of-

didn’t really become a negotiation after the attacks

ficer said that “[i]t 132 The

started. It was more of a finger proverbially in the chest.”

sheiks were told that such attacks were unacceptable and that they

were expected to provide information on who had committed the at-

tacks and to cooperate with the U.S. forces in the area to prevent

126. This is a classic example of “BATNA bashing.” See M ., supra

NOOKIN ET AL

note 41, at 25. R

127. Interview with JD, supra note 22. R

128. Telephone Interview with CG, supra note 22. R

129. Interview with JW, supra note 22. R

130. See Zartman, supra note 17, at 76 (citations omitted). R

131. Interview with TS, supra note 22. R

132. Id. at 6.

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Winter 2008] The Soldier and the Sheik 99

future ones. The captain involved had a difficult time calling it a ne-

133

gotiation, because on security issues, it was “very much one way.”

The conduct of this negotiation and the series of related negotiations

between the American soldiers responsible for the area and local

sheiks was affected by the U.S. soldiers’ perceptions of their power in

that particular context. The interview makes clear that the source of

that perception was the obvious fact that the U.S. Army was the le-

134 The perception of how this

gitimate military force in the area. 135

translates into power in the negotiation is worth exploring.

According to this perception, the U.S. negotiator’s power was

constituted primarily, if not exclusively, by the potential to apply

force of some kind, and was much greater than that held by the

Iraqis. In fact, because such a perception necessarily assumes that

the U.S. military has a monopoly on the legitimate use of force, the

sheiks were perceived as being relatively weak.

The parties’ perceptions play a critical role in this relationship

136 The potential for

between military force and negotiating power.

cognitive bias in these perceptions is significant. I will not address

the substantial body of research on cognitive bias in negotiation or

attempt to apply it to the negotiations discussed by the interviewed

officers, but it is important to note the likelihood that in at least some

cases, a U.S. soldier may overestimate his negotiating power and

mistake his ability to apply force (which he may have) for the power

to demand concessions in a negotiation (which he may find out he

137 In negotiations laced with the kinds of opportuni-

does not have).

ties for cognitive bias that both cultural differences and military

power present in especially tempting ways, an awareness of the exis-

tence, challenges, and effects of cognitive bias may be especially im-

portant to those U.S. military negotiators or trainers interested in

138

improving their negotiating effectiveness.

133. Id. at 5.

Id. at 6.

134. Power and

135. “Much of power is a matter of perception . . . .” Zartman & Rubin,

supra note 96, at 13. Exploring the perception of power is more useful than

Practice, R

trying to define a static objective reality of power between the parties, because percep-

Id. at 13-14.

tions govern the negotiators’ behavior.

136. See id. at 13 (discussing power as “a perceived relation”).

137. See, e.g., Daniel Kahneman & Amos Tversky, Conflict Resolution: A Cognitive

in B C R , supra note 105, at 44, 46-50 (dis-

Perspective, R

ARRIERS TO ONFLICT ESOLUTION

cussing optimistic overconfidence bias); Interview with RM, supra note 36 (suggesting R

that many fellow Marines make this mistake).

138. I raise the issue of cognitive bias because the intensity of the SSTR environ-

ment and the incredible amount of new information faced by U.S. soldiers in such an

environment, including cultural differences, provide such a ripe set of circumstances

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100 Harvard Negotiation Law Review [Vol. 13:67

SSTR operations are challenging because stabilization, security,

139 In the

transition, and reconstruction may take place concurrently.

context of what otherwise would be reconstruction, for instance, a le-

gitimate need to use force may arise for security-based reasons. In

some locations, the military may still be performing a more tradi-

tional security operation, and in others, it may be executing primarily

a reconstruction and transition mission. Nevertheless, for the pur-

poses of studying negotiations that take place in SSTR operations,

any particular negotiation can be placed on a continuum according to

its immediate context and the particular mix of security, reconstruc-

tion, and transition activities taking place.

The use of military force in an SSTR operation can be charted on

a continuum showing how the nature of operations changes as an

140

SSTR operation matures. At the beginning of the continuum, the

military is primarily concerned with security and stabilization, which

will involve basic reconstruction of essential infrastructure and hu-

manitarian aid but will mostly be concerned with securing the coun-

try. There are more kinetic operations and a higher chance that

lethal force will be used. As the operation progresses, security con-

tinues to be a priority, but the mix of activities changes from prima-

rily security-focused objectives to transition and reconstruction

activities, which include operations to construct schools and hospi-

tals, train new security forces, and establish, supervise, and coordi-

nate with local civil government. In this context, direct military force

is not used or threatened, even though any potential force that the

141

military could apply continues to be an obvious fact.

for cognitive biases. See Morris & Gelfand, supra note 47, at 45. The potential for R

tactical mistakes due to bias is high because of the sometimes overwhelming informa-

tion-processing demands inherent in negotiating in a war zone with civilians of an-

other culture. See id. For an excellent and more general review of the current state of

supra note

research on cognition and biases in negotiation, see Leigh Thompson et al.,

21. R

139. See C C. C & W. A T , U.S. A W C ., R

ONRAD RANE NDREW ERRELL RMY AR OLL ECON-

I : I , C , M M F

STRUCTING RAQ NSIGHTS HALLENGES AND ISSIONS FOR ILITARY ORCES IN A

P -C S 2-5 (2003);

OST ONFLICT CENARIO

See id.; see generally C . T . & N ’ S P , supra note 2

140. R

TR FOR ECH AT L ECURITY OLICY

(discussing how “[t]he changed operational environment that U.S. forces face when

combat ceases” require a change in preparation and execution strategies).

141. Resorting to force reflects a failure to resolve the dispute or find an agree-

ment, and while that may sometimes be a necessary result of an interaction in the

tense and often violent environment of an SSTR operation, using force because negoti-

ation failed usually represents “a failure of skill, a failure of will, or a dearth of crea-

tivity on the part of one or more of the disputants.” Michael L Moffitt & Robert C.

Perspectives on Dispute Resolution: An Introduction, in T H

Bordone, HE ANDBOOK OF

D R 1, 11 (Michael L. Moffitt & Robert C. Bordone eds., 2005).

ISPUTE ESOLUTION

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Winter 2008] The Soldier and the Sheik 101

The interviews show that the issue of force is a factor in the bal-

ance of power between the parties to a negotiation to a greater or

lesser extent depending on how close to kinetic operations that nego-

tiation falls on the SSTR continuum. The closer a negotiation is on

the continuum to combat operations, the greater the chance that the

soldier will perceive himself to have more power in the negotiation

and the more likely it is that his Iraqi counterpart will believe the

142 The threat will be more credible. But these percep-

same thing.

tions are likely to be different the farther away the negotiation is

from kinetic operations, and the more closely it is to transition and

reconstruction operations. In this instance, the threat of direct mili-

tary force will have less influence on the U.S. military negotiator’s

143 In this case, the nego-

power in a negotiation with an Iraqi leader.

tiating power of the U.S. soldier is more likely to be constituted by

144 In particular,

factors other than his ability to apply lethal force.

the increasing importance of relationships as operations move from

lethal combat to reconstruction likely plays the most significant role

in constraining the soldier’s exercise of his otherwise asymmetric mil-

145

itary power.

Still, the interviews suggest that U.S. soldiers negotiating with

Iraqi civilian leaders tend to think of their negotiating power as con-

stituted primarily by their military power, even in situations when

their power in a negotiation may not be coextensive with their ability

to apply military power. In other words, soldiers often think too nar-

rowly of their power in a negotiation as being mostly made up of the

“power” with which they are most familiar: the power they can exert

militarily. Yet a structural analysis of the issues and context of the

142. The perception of power symmetry or asymmetry is related to elements such

See Zartman & Rubin, Power and Practice, supra

as force, resources, and reputation.

note 96, at 13. R

143. Analysis of the negotiations discussed in the interviews confirms this. Most of

the negotiations in which officers threatened force or used indicia of force to influence

their counterpart were negotiations related to security concerns. Generally, the of-

ficers did not use the same tactics in the many negotiations they discussed that con-

cerned reconstruction or transition to Iraqi civil government, although they

sometimes still characterized their power as being their military power to coerce.

144. By his control of funds, for instance. His power relative to the Iraqi(s) with

whom he is negotiating is likely to be reduced by, for instance, the Iraqi town council’s

control of prioritizing reconstruction projects as part of the transition to Iraqi sover-

eignty, to which the U.S. military is committed. This reflects research that suggests

that relative total power, in this case the military power to coerce and control, is not

as relevant as issue-specific power in a particular negotiation, in this case decisions

See Salacuse, supra note 68, at 261.

about reconstruction in the town. R

145. See Zartman & Rubin, Symmetry and Asymmetry, supra note 66, at 283-84 R

(citing relationships as the last of three constraints on a strong party’s power).


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Dispensa al corso di Teorie e tecniche della trasformazione dei conflitti della Prof.ssa Maria Luisa Maniscalco. Trattasi del saggio di David M. Tressler dal titolo "The Soldier and the Sheik: Lessons from Negotiating in Iraq" all'interno del quale si discutono le tecniche di mediazione e di negoziazione adottate dal contingente americano durante la guerra in Iraq.


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I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Teorie e tecniche della trasformazione dei conflitti e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Roma Tre - Uniroma3 o del prof Maniscalco Maria Luisa.

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