ADR SPOTLIGHT: Historic moments in negotiation


By Lee Hornberger

History provides us with lessons on how to be better peacemakers. To help us better understand and learn from these lessons, we will go from a small village in rural Virginia in 1865; to Geneva, Switzerland, in 1954; to a student sit in at Cambridge, Massachusetts, in 1971; to a lonely man in a lonely room in Washington, D.C., in 1974; to a dinner at Wright-Patterson Air Force Base near Dayton, Ohio, in 1995; and, finally, to a Good Friday in Northern Ireland in 1998.

April 9, 1865
Bruce Catton’s “A Stillness at Appomattox” turns history into poetry. It is April 9, 1865. Fort Sumter had surrendered four years earlier, on April 13, 1861. General Lee had to make a decision. Does he bring the Civil War to an end here and now, end the carnage and blood letting in a lost cause, be humiliated, and risk prisoner of war camp for himself and his army; or does he escape to the mountains and engage in a prolonged guerilla war? General Grant also has to make a decision. After all the blood and gore, does he humiliate Lee and force a complete and unconditional surrender? On the battlefield, both Lee and Grant chose dialogue. Through written communications Grant requested that Lee surrender. Lee put on his best uniform so as to be dressed for the occasion. They met. At first, they reminisced about the Mexican-American War in which they had both fought. They discussed surrender terms. Grant’s proposal to Lee permitted Confederate soldiers to return to their homes with their mules and horses. There would be no prison camps. There would be no guerilla warfare. The bloodiest American War in history was almost over.

“A Stillness at Appomattox” teaches us that there is no virtue in trying to negotiate the last possible concession out of the other side.   

The Division of  Vietnam in 1954
After at least nine years of war in Southeast Asia, during the 1954 Geneva negotiations, Vietnam was split at the 17th parallel. The negotiation leading to this division was done by world power brokers openly in front of their partially subservient client stakeholders. The power brokers were the Soviet Union, the People’s Republic of China, and France. The partially subservient “stakeholders” were the Democratic Republic of Vietnam [North Vietnam] and the State of Vietnam [South Vietnam]. The power brokers were exhausted after the Korean War and wanted stability and peace. Even though the goal of both Vietnamese parties was the complete unification of Vietnam under the leadership of only one of the warring parties, the world powers, literally in front of the Vietnamese, negotiated a partition of Vietnam. Stanley Karnow, “Vietnam: A History” (Penquin Books 1997). It was at the beginning of these negotiations that John Foster Dulles refused to shake the hand of the Premier of the People's Republic of China, Zhou Enlai. Ultimately to spur the negotiations on, Zhou Enlai said “The two parties should take a few steps toward each other - which doesn’t mean that each has to take the same number of steps.” Id.  p. 218.

“Vietnam: A History” teaches us (1) shake hands with the other side, (2) there is virtue in taking the first step, and (3) a fair resolution does not always require equal moves by each side.

1971 Student Sit-In at Harvard
Ken Gormley’s “Archibald Cox: Conscience of a Nation” is a wonderful read. The book, in part, relates how Harvard Law School Professor Archibald Cox in 1971 negotiated the end of a student sit-in at Harvard. The negotiators were Professor Cox representing the Harvard administration and a student leader representing thousands of students. Working together Cox and the student leader held simultaneous sets of negotiations. The choreographed public negotiations were seemingly going nowhere. The simultaneous private one-on-one negotiations between Cox and the student leader were leading to a resolution. In these private one-on-one negotiations, these two negotiators were able to work ahead of where they were publicly. Between the two of them they reached agreement on a prospective settlement and play acted it to their stakeholders to achieve resolution.

“Archibald Cox: Conscience of a Nation” teaches us to be aware of who is actually negotiating about what with whom.

Senator Goldwater and the Nixon resignation
In “With No Apologies” (Morrow 1979), Senator Barry Goldwater outlined the delicate August 7, 1974, discussion that led to the resignation of President Richard M. Nixon on August 9, 1974. Almost immediately before this meeting, the House Judiciary Committee had voted three articles of impeachment. On August 5, 1974, President Nixon had revealed that some of his prior denials of wrongdoing were now “inoperative.” Senator Goldwater together with Senate Minority Leader Hugh Scott was scheduled to meet with President Nixon. This would be a delicate discussion. If handled correctly, Nixon would probably—in the fullness of time—resign from office. If not handled correctly, Nixon might recoil and force a protracted, ugly political fight which would further divide the nation. The Republican leadership commissioned Goldwater to meet with Nixon and tell Nixon that he should resign. As a prelude to this meeting, Goldwater talked with Ben Bradlee of the Washington Post and successfully persuaded the Post not to publish the upcoming request that Nixon resign. Attending the meeting with the President were Senators Goldwater and Scott, as well as House Republican Minority Leader John Rhodes. They informed Nixon of the lack of support for him in the House and Senate. The numbers were not there. They did not ask him to resign. Even though resignation was the only reason for the meeting, resignation was never mentioned. Four days after this courteous and respectful meeting the President resigned.

“With No Apologies” teaches us (1) treat the other side courteously and respectfully and (2) what is not said can be as important as what is said.

Peace at Wright-Patterson Air Force Base
Assistant Secretary of State Richard Holbrooke in “To End A War” (Random House 1998) discussed the 1995 negotiations at Wright-Patterson Air Force Base near Dayton, Ohio, that helped resolve a bloody, hard fought and brutal war in Bosnia with the General Framework Agreement for Peace in Bosnia and Herzegovina. The competing forces included the Bosnian Muslims, the Bosnian Serbs, the Serbian Serbs, the Bosnian Croats, and the interests of the United States, NATO, the European Union, and Russia. According to Secretary Holbrooke, “We constantly looked for ways to break down the barriers of hatred and distrust.” As we all know, one way of doing this is with good food. Holbrooke did this and selected the introductory banquet location “with great care.” The location selected was The National Museum of the United States Air Force at Wright-Patterson Air Force Base. Dinner tables were placed under the wings of a B-2 stealth bomber. I have always believed this was done to exemplify their BATNA to all the diverse participants if they did not reach an agreement.

“To End A War” teaches us that (1) setting the table with food is important for negotiations and (2) always be aware of your BATNA.

1998 Good Friday in Ireland
The former Prime Minister of the United Kingdom, Tony Blair, in “A Journey: My Life” (Alfred M. Knoff 2010), explains the negotiating techniques he learned and implemented during the Northern Ireland peace talks leading to the 1998 Good Friday Agreement. These techniques included:

1. Set the parties at ease.
2. If you are really trying, you get credit for it.
3. Focus on the one or two things that matter.
4. Create a framework of agreed upon principles.
5. Determine underlying needs.
6. Small things can be big things.
7. Be creative.
8. The conflict was not going to be resolved by the parties if left to themselves.
9. Realize that for both parties resolving the conflict is a journey and a process, not an event.
10. The path to peace will be deliberately disrupted by those who believe the conflict must continue.
11. Leaders matter.
12. The external circumstances must militate in favor of, not against, peace.
13. Never give up.

“A Journey: My Life” teaches us that (1) negotiations can sometimes be very difficult and very prolonged and (2) endurance is not a vice.

History teaches many lessons for peacemakers if only we have the vision to draw the right conclusions when facts are squarely faced and carefully considered. Mediators would do well to remember, as William Faulkner taught us, “[t]he past is never dead.  It’s not even past.” “Requiem for a Nun” (Random House). Reading history has long been an important component of advanced mediator training for me!
Lee Hornberger is an arbitrator and mediator. He has received the George N. Bashara, Jr. Award from the Alternative Dispute Resolution Section of the State Bar of Michigan in recognition of exemplary service and the Albert Nelson Marquis Lifetime Achievement Award. He is a member of The National Academy of Distinguished Neutrals, included in The Best Lawyers of America 2018 for his work in arbitration, and on the 2016 and 2017 Michigan Super Lawyers lists for alternative dispute resolution. He is chair of the State Bar’s ADR Section, Editor of The Michigan Dispute Resolution Journal, former chair of the ADR Committee of the Grand Traverse-Leelanau-Antrim Bar Association, former member of the State Bar’s representative Assembly, former President of the GTLA Bar Association, and former chair of the Traverse City Human Rights Commission. He is a member of the Professional Resolution Experts of Michigan (PREMi,, an invitation-only group of Michigan’s top mediators. He is an arbitrator with the American Arbitration Association, Federal Mediation and Conciliation Service, Financial Industry Regulatory Authority, Forum, Michigan Employment Relations Commission, National Futures Association, and National Mediation Board. He holds his B.A. and J.D. cum laude from The University of Michigan and his LL.M. in Labor Law from Wayne State University.