Negotiation by exhaustion

'Negotiation by exhaustion' is often used to refer specifically to the final 24 to 48 hours of negotiations, where delegates and the organizers work round the clock, often without rest or sustenance, to secure a final deal (or indeed admit failure), almost invariably after the scheduled end of negotiations. This final marathon session typically comes at the end of an increasingly intense week or more of negotiations, where formal, informal and unofficial meetings have also gone on late into the night (Yamin and Depledge, 2004).

The finales of both the Kyoto and post-Kyoto negotiations took place through a process of 'negotiation by exhaustion', escalating into a final overnight marathon session that eventually concluded nearly a day late. In Kyoto, the final 'marathon session' in the Committee of the Whole lasted from 1am to 10:17 on 11 December. The formal adoption of the Kyoto Protocol in the COP plenary did not take place until around 3 pm later that day, nearly 24 hours after the scheduled end of the conference. The sequence of events at COP 6 was similar. The friends of the President met for what was intended to be a final round of deal-making at 11pm on 24 November, until around 9am next morning. Unofficial negotiations between the EU and US continued in the morning, but in vain. The final COP plenary ended at around 6pm. Negotiation by exhaustion, including overnight negotiations and late running, also characterized the finales of the political segment of COP 6 (part II), and COP 7.

There is a widespread belief among negotiators, not only in the climate change regime but also in most negotiation processes, that the final deal can only be struck under such conditions of exhaustion.5 Delegates are inevitably less resistant to pressure, their resolve weakens, and they are more likely to back down from their positions as physical tiredness take its toll. One interviewee commented:

if we hadn't been under that kind of pressure, under those kind of circumstances, we probably wouldn't have come out with an agreement... You basically have to lift yourself up... work to that kind of pace, to that kind of level, to basically weaken people down so they will consent to compromise.

At a more personal level, the exhaustion of late night negotiations can provide a sense of drama and occasion that some delegates relish. As one interviewee put it:

at the end of the day... I don't think you can avoid the fact that the show has to happen on the final night ...we would like to believe that we are all much more rational, but in fact... it's a psychological thing... We thrive on it.

Delegates must be able to demonstrate that they made every effort to maintain their position before being forced to give in, while late night negotiations can generate a sense of common and shared hardship (Yamin and Depledge, 2004).

According to one interviewee, 'it's the way that diplomats function... Delegates need to feel they have suffered... to be able to say we tried really hard, we sweated, we did our best.' Another interviewee agreed: 'I think that it's a pathology of the individuals involved, in some sense they wouldn't feel that they had done their job properly if they didn't push themselves to late at night'.

While perceived as inevitable, negotiation by exhaustion has very high costs attached to it. Firstly, it does not always succeed. Although exhaustion and the imminent threat of failure can lower the resistance of parties and induce them to compromise to some extent, these factors will not usually cause parties to go beyond their bottom lines. Therefore, if insufficient creative work has been done beforehand to explore possible areas of compromise, then tiredness and time pressure alone will not forge agreement. In addition, tiredness will affect the ability of individual delegates to think through possible compromises and their implications. Nothing new should therefore be introduced on the last night, and parties should simply have to choose between a limited number of options and combinations of options. Again, for this reason, the document before parties must be straightforward and easy to read, so as not to waste scarce mental energy.

The difference between COP 3 and COP 6 in this regard is clear. The final meeting of the Committee of the Whole at COP 3 had a new document before it, but almost all the text was well-known, and most of it was agreed in principle. The choices facing delegates were relatively straightforward and demanded little analysis, except for the implications of the combination of choices. The final friends meeting at COP 6, however, had before it the President's Note which, while released 24 hours earlier, was still extremely innovative in style, content and structure. Moreover, participants in the friends group also had before them a mass of written comments on the text (see Chapter 11), which they were being asked to sift through and somehow reconcile into amended text. The intellectual capacity needed to do this meant that it was simply not appropriate for a process of negotiation by exhaustion.

Negotiation by exhaustion can therefore backfire. An excellent illustration of this point concerns the former French Environment Minister, Dominique Voynet, who presided over the EU at COP 6. Following the conclusion of the apparent last minute deal between the US and certain EU countries, Minister Voynet declared herself too tired to fully understand the deal (especially as it was written only in English) and therefore unable to explain and sell it to the wider EU. Although it is unlikely that the deal would have stuck anyway, this is a clear case of where last minute negotiation by exhaustion placed obstacles to advancing the process.

Not all interviewees agreed that negotiation by exhaustion was a significant factor on the last nights of negotiations. One, for example, from a well-resourced OECD country, said 'tiredness was pretty marginal. We were on top, in command, the adrenaline was flowing.' Interestingly, a non-Annex I party delegate took a similar viewpoint, stating 'I don't think it affects people's ability, because they still have the three key things that they are looking for... despite their weariness'.

Nevertheless, negotiation by exhaustion at the finales of both the Kyoto and post-Kyoto negotiations, including COP 6 (part II) and COP 7, meant that the commitments of states under international law were being negotiated late at night by individuals who were often suffering from extreme tiredness. These were not propitious conditions for taking such important decisions. As one interviewee noted, 'the late night meetings are a terrible way to make public policy, at three in the morning by people who have not slept for three days'.

The tiredness of negotiators can certainly affect the quality of the agreement, as parties are less willing to devote attention to language and style, focusing simply on closing the substantive deal (Yamin and Depledge, 2004). According to Werksman, 'marathon sessions can undermine the quality of decisions, as negotiators . . . fail to choose their words carefully or to ensure the consistency of the text' (Werksman, 1999, p12). One interviewee recalled:

we nearly adopted a sentence without a verb in it! These things should not happen. It was time pressure. Working 30 hours, and then another 30 hours... with hardly any sleep in between, is not a good way to keep your thinking powers intact.

The various discrepancies that appeared in the Bonn Agreements adopted at COP 6 (part II), for example (see Chapter 9), can largely be attributed to the tiredness of delegations and the organizers.

In the fog of fuzzy thinking that characterizes late night negotiations, differing interpretations can even arise as to the text adopted. The decision on adoption of the Kyoto Protocol, for example, led to an inexplicable incident in which, during the technical review of the Kyoto Protocol a month after the close of COP 3, a senior delegate from an Annex I party claimed he was under the impression a different version had been adopted, including text on compliance and more detailed work on emissions trading. Although the large delegation of this party was able to cope better than most with negotiation by exhaustion, it had not been immune from the general 'blur' of late night, intense talks.

A major failing of negotiation by exhaustion is that it hits the smallest and least-resourced delegations hardest (Yamin and Depledge, 2004). Larger delegations are able to establish a rota system, so that the negotiations are constantly covered by a relatively well-rested individual. Such rotation is not possible, however, in small delegations, with serious implications for practical procedural equity. An African interviewee recalled the final night of negotiations at COP 3 thus:

at a certain point, I fell asleep. And what is said while you're asleep, it's not guaranteed that you'll be happy with it... once again, it's the small delegations that suffer. If there are ten of you in a delegation, five can sleep, and five can take over. The others can go and have a rest. . . But it's a real problem for us.

Another African interviewee echoed this sentiment:

Coming from the South, I definitely and vehemently oppose late night meetings since we do not have the numbers to sustain it and therefore they do not work in our favour... those late night meetings appear suspicious in intentions and lack good faith.

In the case of COP 3, the overrunning of the negotiations also meant that interpretation facilities were lost before work had concluded, placing non-Anglophones, especially less well-resourced developing countries and EITs, once again at a disadvantage. In addition, many negotiators, especially developing country delegates, were forced to leave the conference centre before the close of the negotiations to catch their flights home. In the case of the three finales of the post-Kyoto negotiations - COP 6, COP 6 (part II) and COP 7 - the final marathon round of deal-making in any case took place in informal, English-only arenas, effectively excluding non-Anglophones. The problem of premature departures from the conference centre was, however, minimized to a large extent by the secretariat having anticipated the problem and booked later flights for funded delegates.

Continue reading here: Summary and concluding remarks

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