Mayhew-Hite Report Summary of: “Nelson Mandela as Negotiator: What can we learn from him?”
In Nelson Mandela as Negotiator: What can we learn from him?, Hal Abramson, Professor of Law at the Touro Law Center, New York, examines Mandela as a negotiator from 1985, when he refused an offer to be released from prison if he were to denounce violence, until his release in 1990. Abramson argues that Mandela followed a textbook approach to his negotiations with the South African Nationalist government; therefore, Mandela did not teach us anything new on how to negotiate. Mandela performed as any good negotiator should.
In his introduction, Abramson describes his visit to Johannesburg, which occurred in the wake of Mandela’s death. Abramson participated in the remembrance, mourning, and learning that followed Mandela’s passing. It was during this visit that Abramson began to examine Mandela as a negotiator. Abramson explains that Mandela faced multiple distributive disputes from 1985 to 1990. For example, Mandela could have either renounced the armed struggle against the Nationalist government or not. His organization, the African National Congress (ANC), could have either been banned or not. While managing these distributive disputes and others, Mandela faced a conflict of interest. Government officials tempted Mandela with his personal freedom if he were to compromise the interests of his country. Mandela was determined to resolve these disputes in his favor without succumbing to his conflict of interest.
Abramson later analyses Mandela’s first speech as a freeman, which reveals his approach to negotiating freedom for South Africa and himself. The first sentence of Mandela’s speech called for the continuation of the armed struggle against the Nationalist government. Mandela’s choice to continue the armed struggle contrasts with the choices of Mahatma Gandhi and Martin Luther King, Jr. Abramson explains, “Mandela understood one of the basic tenets of negotiations: your negotiating power is fueled by the strength of your alternative to settlement, known as the BATNAs (Best Alternative to a Negotiated Agreement) of the parties.” Mandela endorsed the use of violence because this weakened the Government’s BATNA. The Government could either negotiate with the ANC or suffer the consequences of continued armed struggle. Mandela understood the limits of violence. Violence would not defeat the apartheid, but negotiations would. Mandela stated, “We express the hope that a climate conducive to a negotiated settlement will be created soon so that there may no longer be the need for the armed struggle.” Apart from highlighting violence as a tactic to weaken the Government’s BATNA, Abramson also notes the importance of the anti-apartheid leaders’ and sympathizers’ non-violent actions in weakening the Government’s BATNA.
Abramson goes on to describe Mandela’s negotiation style in terms of his choice of good practices, tactics, and tricks. Good practices are likely to produce the best negotiated outcome. A few examples of good practices, provided by Abramson, are: asserting interests rather than positions, acting ethically and fairly, and building trusting relationships. Negotiators who assert interests are more likely to create multiple solutions of which some might be acceptable or tolerable to the other side. Tactics are viewed as generally accepted practices and because of this, their use does not undermine the relationship of the negotiators. Tricks are practices that are unethical and if their use is discovered, they can undermine the relationship of the negotiators. But, if tricks are properly used, they can be effective. Abramson notes that there is no agreed upon list of tactics or tricks.
Mandela employed several strategies that would be considered good practices. Mandela advocated for his primary interest, a democratic, nonracial, and unitary South Africa, in the face of temptations to compromise this primary interest for a lesser interest, his release from prison. Mandela refused President Botha’s conditional offer: if Mandela would publicly reject violence then he would release him from jail. Mandela had been in prison for 21 years, but still refused this offer because it would not satisfy his primary interest: freedom for everyone. Mandela understood his interests and their priority. Like any skilled negotiator, Mandela relentlessly advocated for his primary interest.
Mandela was also incredibly skilled at understanding the other side’s interests and satisfying them. White South Africans were afraid of black South African domination. Mandela quelled these fears. Mandela repeatedly ensured the Government that, “[T]he majority would need the minority. . . .” and that, “driv[ing] the whites away would devastate the nation.” Mandela stated, “Any man or woman who abandons apartheid will be embraced in our struggle for a democratic, nonracial South Africa….”
Mandela also cultivated relationships with the other side regardless of their past grievances and animosity. Mandela explained that the problem was not either party, but instead the system of repression. Mandela praised the Nationalist President, Frederik de Klerk, for going “further than any other Nationalist president in taking real steps to normalize the situation. . . .” Mandela treated the other side with respect and negotiated with their agents in joint sessions. This allowed for direct communication between the parties. Direct communication and personal interaction can open up opportunities for relationship building. Mandela was also a good listener and willing to accept partial apologies from the other side. These practices also helped improve relationships.
Apart from these good practices, Abramson notes at least one instance in which Mandela misrepresented his actions with the government to the people of South Africa. Mandela held secret talks with the government where he discussed the “basic demands of the struggle” and “entered into negotiations about the future of [the] country.” However, Mandela told the people that he had not begun discussing these matters with the government. Abramson argues, however, that this misrepresentation was not a trick. Mandela justified these misrepresentations by stating they were for the benefit of the ANC and its members. Although Abramson is willing to argue these actions were not a trick, he is also not willing to categorize them as a good practices. These misrepresentations risked undermining the people’s trust in Mandela and the negotiation process. Thus, this misrepresentation was a tactic.
Subsequently, Abramson explains that Mandela achieved an impressive negotiated outcome with the government when one considers all of the distributive disputes that he resolved in his favor. Mandela made not one single concession to the government. However, Abramson notes that despite the government capitulating on all of the disputes, it still satisfied its own significant interests. The normalizing of relations between the majority and minority populations would allow South Africa to become governable and to reenter the regional and global communities. The government was also able to take the moral high ground by eliminating violence and its justifications for violence. The outcome also provided the government with a black leader who it could negotiate with.
Abramson concludes that Mandela did nothing new. He negotiated as any good negotiator should. “Mandela uncompromisingly advocated interests, convincingly addressed the other side’s interests, helped shape an unattractive alternative to negotiations for the Nationalist government, and consistently engaged in good negotiation practices with some tactics.” Although Mandela did not teach us anything new about how to negotiate, he did teach us the effectiveness of his negotiation practices.
 Id. (quoting Padraig O’Malley, Remarks By Nelson Mandela In Cape Town On February 11, 1990 After His Release from Victor Verster, Nelson Mandela Centre of Memory, https://www.nelsonmandela.org/omalley/index.php/site/q/03lv03445/04lv04015/05lv04154/06lv04191.htm (last visited July 8, 2015).
 Id. (quoting Nelson Mandela, Long Walk to Freedom: The Autobiography of Nelson Mandela, 539 (1995)).
 Id. (quoting Mandela, supra note 5, at 568-69).
 Id. (quoting O’Malley, supra note 3).
 Id. (quoting O’Malley, supra note 3).