Negoziazione e mediazione in Iraq
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78 Harvard Negotiation Law Review [Vol. 13:67
operations officer in 2004 and 2005 noted his inexperience at negoti-
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
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 –
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.
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-
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-
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
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,
distributive bargaining, or claiming value.
(2) Focus on interests: Also called problem-solving, collabora-
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
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
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
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
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).
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
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
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
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.
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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-
ues or norms affect their strategies.
In this section I suggest that: (1) The influence of culture in mili-
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
above, and (b) the negotiators’ individual personalities and negotia-
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-
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).
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.
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
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Winter 2008] The Soldier and the Sheik 83
Culture Can Matter
Cultural difference can be a significant factor affecting military-
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-
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
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
(ambiguity) style, and power style. These culturally variable fea-
tures shape the way people understand their experiences, but they do
not determine them. Culture is the “lens” that refracts the issues
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).
See B , supra note 45, at 7.
50. See id. at 15.
See Rubinstein, supra note 42, at 32-37.
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
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
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
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
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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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
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
and degrees of willingness to make promises. Iraqis are more likely
to understand some statements made by U.S. officers to be promises
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-
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
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
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
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
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
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-
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-
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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
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
widely-studied phenomenon in which negotiators interpret informa-
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
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
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
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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
and perspectives pertinent to negotiation vary across cultures,
preventing entirely the application of negotiation research from one
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
SSTR negotiations than is often assumed.
Finally, U.S. officers negotiating with Iraqis can control and
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
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
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
effectively anticipate a cultural norm in order to diminish its effect or
complement it to the advantage of securing a commitment, instead of
mimicking the Iraqi counterpart’s culture.
3. Recommendation: Understand, Manage, and Adapt to
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
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
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
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
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
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,
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-
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
See id.; but cf. Avruch, supra note 48, at 400 (noting that culture is neither
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
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
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
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-
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
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.
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,
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
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-
gotiating power. The narrowly structuralist definition of power is
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
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-
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
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-
EGOTIATING GREEMENT ITHOUT IVING N
Bargaining Power as Threat of Impasse, in Three Conceptions of Power,
. L. R . 867, 867-68 (2004); Zartman, supra note 17, at 75.
87 M R
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),
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
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
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
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-
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
ability to trade, to offer something of value in exchange for the de-
Identification takes into account the ability of a
leader or negotiator’s charisma to exert pressure on or influence the
99. Cf. id.
Id. at 251 n.5.
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
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 ,
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-
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
change the understanding of the parties as to the value of various
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,
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
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
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
105. In addition to L & S , supra note 33, see Howard Raiffa, Analytical R
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.
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,
available at http://ssrn.com/abstract=310166.
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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-
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
credible threat as from the actual capability to carry out the
114 115 116
Perception plays an important role, as can patience.
A skillful negotiator can increase and exercise his power through
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
See David C. King & Richard J. Zeckhauser, Legislators as Negotiators, in
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
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
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
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
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-
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
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.
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
(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
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
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
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
& 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-
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-
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-
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
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
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-
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
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
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
research on cognition and biases in negotiation, see Leigh Thompson et al.,
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
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).
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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-
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-
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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102 Harvard Negotiation Law Review [Vol. 13:67
negotiations discussed by the officers leads to the conclusion that
even if the negotiation takes place only because the U.S. military has
146 the negotiating
the capability to assert its power through force,
power that the military holds is constituted by a complex interaction
of factors. The U.S. military negotiator is not guaranteed to
148 The apparent disconnect between
achieve his intended outcome.
most officers’ understanding of their negotiating power and the
power they may have actually had suggests the need for additional
(b) Interests, Rights, and Power in SSTR Negotiations
All of the negotiations described in the interviews reflect the
complexity of SSTR operations and reinforce the premise that the rel-
ative negotiating power of the parties depends on numerous dynamic,
interdependent factors. The negotiating power of the U.S. soldier is
far from absolute.
Negotiations conducted in the context of an SSTR operation are
consistent with the theory that interests, rights, and power exist con-
currently in negotiations, and that the parties may choose to focus on
one of them, or cycle among the three, during the course of the negoti-
149 In this framework, interests are discussed and reconciled in
the context of the parties’ rights and power, while rights are deter-
mined and settled in the context of the power each party holds.
The parties can make a tactical choice to focus on one of these ele-
ments, but research suggests that parties move frequently among in-
terests, rights, and power foci in the same negotiation.
The discussion above concentrated on negotiations in which the
U.S soldier focuses primarily on his power (or perceived power), using
negotiating power constituted mostly by his military power to coerce
146. See Interview with JJ, supra note 22 (“There were some people who made it R
absolutely clear through every negotiation that they were only negotiating with the
United States Army because we were the people that were there with the firearms all
147. The U.S. military negotiator’s power to negotiate an outcome may be de-
tached from his military power.
See Interview with BP, supra note 22 (concluding that the military power –
the show of weaponry and equipment – was inevitable and obvious but as an effect on
the negotiation was limited to keeping the discussion civil, to “a low key, never very
heated”). The Strategic Use of Interests, Rights, and Power to Re-
149. Anne L. Lytle et al.,
15 N . J. 31, 34 (1999); see generally U ., supra note 107.
solve Disputes, R
EGOT RY ET AL
150. Lytle et al., supra note 149, at 33-34 (citing U ., supra note 107). R
RY ET AL
151. Id. at 34-38 (finding more emphasis on rights and power in the first and third
quarters of the negotiation than in the second and fourth quarters).
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Winter 2008] The Soldier and the Sheik 103
his Iraqi counterpart into agreement on the American’s terms. How-
ever, many of the negotiations discussed by the officers exhibited a
cycling between interests and power, if not also of rights, and re-
flected a more subtle balance of power.
For instance, several negotiations documented in the interviews
concerned the U.S. military’s need for information from local sheiks,
on the one hand, and the sheik’s requests for fewer raids and
searches of homes, on the other hand. A civil-military operations of-
ficer participated in one with a neighborhood advisory council (NAC)
152 The sheiks’ demand appears to have been rooted in
their interests and in a claim of right to be free from frequent raids.
The U.S. military negotiators addressed the sheiks’ concerns in a way
that could be characterized as a claim of right to search houses when-
ever it had information that insurgents or weapons were present.
This right was, of course, bound up inextricably with the U.S. Army’s
power to raid houses. The U.S. officer’s statement that the raids
would continue as long as his unit believed they were necessary relies
on the military’s coercive power to search. Interestingly, the negotia-
tion cycled back to interests as the U.S. negotiators offered a solution
seemingly based on the two parties’ interests. The U.S. Army’s pri-
mary interest was in getting specific and correct information on in-
surgents, which would lead to fewer and more targeted raids in the
sheiks’ neighborhoods, thereby meeting the sheik’s interests in less
disruption of their constituencies. Consistent with the interest,
rights, and power framework of negotiations, this interest-based solu-
tion was offered in the explicit and looming shadow of military power.
While NACs often rejected such solutions publicly, members often
gave information to American forces soon thereafter.
Similarly a Marine junior officer – who spent ten days welcoming
and meeting residents as they returned to Fallujah after U.S. and
Iraqi forces had cleared the city of insurgents, effectively destroying
or damaging most of the city’s buildings and houses – negotiated by
154 Residents scared of and an-
focusing both on power and interests.
gry at both U.S. forces and insurgents were reluctant to give informa-
tion to U.S. soldiers about insurgent activity and membership. In a
still-tense security environment heavily characterized by military
power, the officer reminded the residents that providing the U.S. mil-
itary with information to help it defeat insurgents and keep them out
of Fallujah was the only way that the residents could free themselves
152. See Interview with JJ, supra note 22, at 7-8. R
153. Id. at 8.
See Interview with RM, supra note 36, at 3-6.
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104 Harvard Negotiation Law Review [Vol. 13:67
from both intensive U.S. occupation and insurgent violence and in-
155 This negotiating tactic emphasized the interests of the
Iraqi residents in an attempt to persuade them that their interests
would be best served by giving him information. He did this while
subtly presenting the specter of continuing and overwhelming U.S.
military power embedded throughout their city. The Marine’s negoti-
ating power was at once limited and enhanced by the residents’ inter-
ests in ridding themselves of both insurgents and Americans. On the
one hand, his military power did not mean the ability to get what he
really needed – information – by simply asking, and it may have
weakened his bargaining position because of Iraqi resentment. Many
156 On the other hand, by
residents did not provide any information.
cycling through both interests and power, this Marine was successful
at encouraging many residents to provide information because they
agreed that it aligned with their interests, even if they were not
happy to cooperate.
These findings suggest that military-civilian negotiations in
SSTR operations can accommodate the exploration and discussion of
parties’ interests, even in the shadow of military force and power.
Later in this paper I suggest that introducing a focus on interests
into a negotiation may increase a soldier’s effectiveness and improve
158 This requires the soldier to view his negotiating
power as constituted by more than just his military power.
3. The Role of Relationships in Military-Civilian SSTR
U.S. engagement in Iraq evolved from an invasion and quick
transition operation to a longer-term SSTR operation in which long-
term relationships do matter to the American military’s ability to
159 Yet, with
successfully accomplish its various missions in Iraq.
thousands of negotiations conducted by thousands of U.S. soldiers
across Iraq, it is not surprising that some officers conclude that the
155. Id. at 5-8.
See id. at 9.
156. Id. at 4-8. By doing this, RM exercised power that was constituted not by his
ability to coerce but by his willingness to engage the interests underneath Iraqi frus-
tration with the American presence, by his personal ability to persuade, and by his
skill at quickly building rapport.
See infra Section 4.
158. See Metz & Millen, supra note 8, at 51 (arguing that the new strategic envi-
ronment requires sometimes turning enemies into non-belligerents, allies, and
supra note 22, at 17 (“[I]nterpersonal relationships will
friends); Interview with EH, R
continue to be an important part of warfare.”).
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Winter 2008] The Soldier and the Sheik 105
relationship was “paramount” to almost every single negotiation,
while others did not think that relationships were always
A little more than half of the officers interviewed for this study
said that relationships played an important role in their negotiations.
This is little more than recognition of the fact that the negotiations
they were conducting were embedded in the social, political, and in-
stitutional relationships created by the nature of the SSTR opera-
162 In some cases, a relationship of some sort is a prerequisite to
tion. 163 In other
engaging in even the most non-contentious negotiation.
cases, the cultivation and maintenance of good working relationships
was important to productive reconstruction efforts, governance, and
164 In still more cases, the relationship itself
was a negotiation objective, sometimes taking priority over other po-
165 This was true, despite the fact that some negoti-
ations took place between U.S. military personnel and Iraqis who
166 When a
negotiated only because the Americans had the firepower.
relationship between a U.S. soldier and an Iraqi is long-term, which
many are, the value placed on that relationship has an important ef-
fect on the negotiation.
The interviews indicate that, generally, U.S. officers are acutely
aware of the importance of their relationships with local civilian lead-
ers and are highly cautious about damaging those long-term relation-
ships or violating cultural norms, even at the potential expense of
160. See Interview with JJ, supra note 22, at 23. R
161. For one officer, “I was just another soldier to them most of the time. In only a
few instances did I have the time to get to know an Iraqi closely enough to earn their
supra note 22, at 15.
true trust and friendship.” Interview with EH, R
162. See Roderick M. Kramer, The Dark Side of Social Context: The Role of Inter-
in T H C N
group Paranoia in Intergroup Negotiations, HE ANDBOOK OF ULTURE AND EGO-
, supra note 21, at 220. R
163. “[S]ocial relations are really everything . . . your word is everything, and you
don’t really get anywhere until you know somebody . . . .” Interview with JW,
note 22, at 15, 42; see also Interview with RM, supra note 36, at 5, 6 (noting that he R
never got information the first time he met someone).
See Interview with BP, supra note 22, at 33; Interview with JJ, supra note 22,
at 22. See Interview with JJ, supra note 22, at 22-23. This is consistent with the
negotiation literature. See Kopelman & Olekalns, supra note 46, at 378. R
166. See Interview with JJ, supra note 22, at 23-24. R
167. See Interview with MM, supra note 22, at 19-20; Interview with RM, supra R
note 36, at 5-6 (stating that when he secured information it was only after a relation- R
ship of some sort had been established).
+1 anno fa
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.
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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