Why the UK and EU need mediation to unpick the Brexit mess

The Brexit drama between the UK and the EU is entering a new and intensive phase. In difficult situations, negotiators often seek the help of skilled mediators to guide them towards an acceptable outcome. This is one such moment when both sides would be wise to do so.

Boris Johnson, the UK’s new prime minister, has pledged to have Britain out of the EU by October 31. To do so, he will need negotiation skills that, on the London side, have been conspicuous by their absence since Britain voted by a narrow margin in the 2016 referendum to leave the EU.

Against a background of a sharply divided UK electorate, the agenda is daunting. Discussions with Brussels could involve talks on a so-called managed no-deal. The UK’s withdrawal agreement with the EU may become subject to renegotiation, in which case such sticky issues as “divorce” payments as Britain leaves the union, citizens’ rights and the Northern Ireland border will have to be revisited.

A future trade relationship will also need to be agreed. All this will require enlightened negotiating over an extended period of time.

Bluster and rhetoric, therefore, will not be helpful. Negotiations are not the type of debate Mr Johnson was used to in his 1980s university days as president of the Oxford Union.

A good negotiator avoids attempting to convince the other side that he or she is right and they are wrong. Rather, active listening, probing questions and efforts to craft acceptable solutions based on the interests of all parties are called for.

Those interests usually differ. But the desired outcome is that each side gets what it wants most — and compromises on second-order preferences.

Even seasoned and skilled negotiators face formidable barriers to resolving complex disputes or negotiating complex deals. These barriers can be structural, strategic or cognitive. The Brexit negotiations so far have demonstrated all three.

■ Structural barriers arise from the necessity to deal with many parties and issues. This requires establishing a process that is perceived as fair by all involved. The UK’s perspective is that the negotiation process has been dictated by the EU, with talks on the future relationship to happen only after the UK agreed to the terms of divorce.

■ Strategic barriers arise when parties feel they have a strong incentive to apply so-called “value claiming” tactics — namely, they attempt to gain an advantage instead of negotiating collaboratively.

If one party opens talks in a collaborative mood, the other’s response might be to attempt to maximise its pay-off by playing hardball. Conversely, if a party plays hardball, the other might feel it has to follow suit in order to hold its ground.

This was accentuated by the design of the Brexit negotiations, as the first phase was just about the divorce terms. That is to say, it amounted to one about both sides “claiming value”.

Both parties drew so-called “red lines” on possible outcomes. This significantly reduced their flexibility.

The EU declared as indivisible the four fundamental freedoms — the free movement of goods, capital, services and labour. The UK countered that the European Court of Justice must not have any influence on domestic laws after Brexit.

Parties threatened each other — the UK indicated that it could become a tax haven post-Brexit or refuse co-operation on security matters — and instead of working together to solve a problem, they insulted each other.

■ Cognitive barriers are also significant. Most people, not least politicians, are overly optimistic about their negotiation skills. Mr Johnson claims he will be able to reopen talks on the withdrawal agreement, despite repeated EU assurances to the contrary.

Proposals by the opposing side are “reactively devalued”, simply because it is the opponent who makes the proposal. The Irish border backstop is unpalatable to UK Brexiters, for example, not least because the EU insists on it.

It is against such a perplexing background that skilled mediators are called for, whereby a negotiation is assisted by a neutral third party. The parties control the mediation process and its outcome, coached by the mediator in a sensible direction.

We now incorporate mediation into our daily lives — small claims or family law disputes are cases in point. Mediators help commercial parties resolve their conflicts (“dispute mediation”) or conclude value-creating deals (“dealmaking mediation”). The Brexit process has both dispute and dealmaking elements.

Mediation also has a long tradition in conflicts between states. The Israel-Egypt peace treaty in 1978 was mediated by US President Jimmy Carter at Camp David. Think, too, of US senator George Mitchell’s role in the 1998 Good Friday Agreement in Northern Ireland.

The UK and the EU should immediately engage a mediator — former US President Barack Obama could be a candidate — or a panel of mediators to discuss a way forward.

The goal of such talks could be to design an efficient process to identify agreeable changes to the withdrawal agreement and each side’s political declaration on their future relationship.

This might also stimulate a more problem-solving negotiation style, as opposed to a posturing and political one.

Most importantly, mediators might help sell any agreed outcome to constituencies and the public, reducing the danger of reactive devaluation.

Mediation is no panacea. There is no guarantee that a deal will be reached.

Brexit’s economic and political stakes are so high, however, that it would be irresponsible not to use a tool that has been tried and tested by professional negotiators in myriad private, commercial and political settings.

The author is the Freshfields professor of commercial law at the University of Oxford and frequently acts as a mediator in commercial conflicts