A bird in the hand is worth two on the lake
It’s for the birds: the art of compromise and how it can destroy a world
Wisdom? Upside-down.
In the dictionary, I’ve no doubt they have a definition of negotiation. And I can guess what it more or less says. This week, I have been engaged in some work translating texts that analyse why ecological laws sometimes utterly and absolutely fail in achieving their aims: the conservation of wildlife. Whilst I am in no way so cynical as to assert that any environmental law has its own failure as any part of its goal, there are some pieces of legislation that, with the best of intentions, do in fact fail, and abjectly, and do so for no fault of their own. I have been racked to the core with shock by the story that follows (after the tale of King Baudouin), and I offer it as a signal warning to all who engage in the field of sport where they play the strange game called negotiation. Conservation legislation’s failure in this case stems from a failure by lawmakers to take sufficient account of the well-advertised, well-meant failings of one species in particular: man.
Negotiation is a process that receives endorsement the world over. It is a process in which expectations are tempered, wants are moderated, desires calmed, ambitions rationalised. We cannot always have it all, and negotiation is a process, whether between a toddler and his parent, an employee and his boss, or a lawbreaker and his prosecutor, that, above all, provides all parties with an all-embracing reliance: security. Knowledge of what will be and, whilst that which will be might not be that which one would want it to be, the settlement that results from the process is widely lauded as being a “win-win”. Everyone wins.
Two in the bush
There is such a thing as is called the famous Belgian compromise, the most notable example of which was when King Baudouin abdicated for a few days to allow passage, contrary to his conscience, of a law to decriminalise the act of abortion. He had staunchly refused to sign such legislation into law in 1971 but, in 1990, the matter surfaced again on the legislative agenda and his resistance was circumvented by what we might dub the temporary abdication route. I first heard about it in 1993, shortly after my arrival here, as it was related by a friend to German visitors, who nodded their approval and praised the pragmatic solution: the religiously devout king had salved his conscience by not setting his name to legislation he believed to be contrary to God’s will; and his people’s parliament had complied with his people’s will to see legislation introduced allowing abortion. Win-win. Bravo.
But, if for a moment we were to change our angle of approach here: the king saved himself from an afterlife destined to be spent in Hell’s fire and brimstone. No exaggeration in this, for that is the prospect in His Majesty’s mind that swayed him to the drastic solution that was eventually pursued. What’s more, the country, bent as it was on its abortion law, saved itself the upheaval of — there’s really no other term for it — a revolution: if bent they were on abortion as a legal right, and the king’s conscience stood in the way of their demands, perceived as just — if just, in fact, they were — then, no alternative could have been pursued other than to depose the king, and his conscience along with him, and to declare a republic that would rule as willed by the voice of the electorate. Also win-win: for the populace in making an unmistakable statement about what democracy is in its heart; for the king, in resolving his dilemma and, perhaps rightly, demonstrating to him that conscience may indeed save the soul, if it does, nonetheless, lose one employment.
Instead of eternal damnation for the king and constitutional upheaval for his kingdom, abortion was enacted via the temporary abdication route; thereafter, the king resumed his throne, God was in His heaven and all was well with Belgium; and Belgium, it did rejoice in a hymn of praise sung to its sunlit uplands. Well, on one view, it did; and, on another, far from it.
Whilst it is true that Baudouin’s name does not superscribe Belgium’s abortion legislation, he did in the end acquiesce in procuring a method by which it could be enacted. His authority absented itself: the kind of device that may well delight technical lawyers, but by which the Lord in Heaven is nevertheless unlikely to be taken in. God will not have observed the antics and concluded that, with no signature on the act, the king’s soul was blameless; instead God will have viewed the whole charade as tainted from the outset.
Intentions may frequently be misrepresented to others as a matter of politics or pandering to an agenda; few, however, are as convinced of such ploys as the very person who deploys them - we may not lie to others, but we all know that we can lie to ourselves, and we’re a very ready audience for our mendacity. This, God knows. Baudouin, whichever way one looks at it, facilitated the passage of the bill (and saved his professional skin into the bargain). The reprehensibility of his doing so is open to question; the reprehensibility of him opposing his own government is, I would venture, a tricker matter. Whether he is in purgatory now for doing what he did is a matter between him and his maker, when all’s said and done — I suspect he will have prayed for forgiveness, with vehemence.
And what, then, of Belgium’s people? Did they get what they wanted? They got their act, if that was what they wanted. But they may have lost something very cherished in the doing: I don’t know if Baudouin was less loved by his people in the aftermath of this controversy; nor whether the people were less loved by their king, who passed into eternity but three years afterwards, in the eminently more Catholic Spain. Maybe neither of the King and his people gave much of a toss for the other, either way. But, cynicism aside, there must have been somewhere a sentiment that the two agreed to disagree, under sufferance. On that score, the people may as well have deposed their king: by not doing so, maybe they even got what they wanted — nothing. Lose-lose, or break-even? Either way, not much bravo.
A bird in the hand
Negotiation is a process that, while vaunted as a win-win, is in fact nothing of the sort, unless the case is one in which at least one of the parties had reckoned, but for the win as vaunted, on receiving nothing. Negotiation is in most cases simply a lose-lose: actually, that makes sense, for what else is a compromise? If I ask for 20 and you offer 10, and we settle on 15, who has won? Not I, for I have 5 less than I wanted; and not you, for you pay 5 more than you wanted. But, we do have a deal.
And yet this assessment is tendentious, predicated as it is on this datum assumption: that, apart from the parties who engage in the negotiation, there are no outside parties whose interests are in any way concerned by the subject of the negotiation. What about negotiations between parties where the core interest resides in a third party, one who is not involved in the negotiating and, perhaps, one who cannot even speak? Where is its voice? How can it plead for what is right? How can it make a case to have its needs met? And how does it beg for its life?
Three birds ruling no roost
A company tills land in preparation for a project to extend its premises.
The tilled land proves an ideal habitat for three endangered species of birds.
They establish themselves on the land and fall under the aegis of the EU Birds Directive, which confers protection on the birds.
Because the company wants to build on the land, they must, by law, provide an alternative sanctuary.
It takes 20 years to get a court to order them to do what they require to do under statute. (This is legislation that moves no one to action until a firm boot is applied to seats of pants.)
By now we have three parties in the arena: first, the company doing the building and needing, as a result, to find an alternative habitat for the birds; then, the local authority, who are there solely to keep track of bird numbers and have no judicial standing to sue for action; and, finally, conservationists militating for action.
Four years later, a sanctuary is created: a peninsula of land jutting via a causeway into a lake.
The birds are overjoyed: God is back in His heaven and all is well in birdland.
But not in manland: quibbling arises as to ownership of the sanctuary and responsibility for its monitoring.
Things come to a head when it’s found a fox is decimating the bird population: they nest on the ground and the fox eats the newly born chicks.
A fence is put up, but only on part of the sanctuary, to mitigate the outlay. The remainder of the peninsula is abandoned, by man and bird alike.
The fence stops the fox. But not a weasel. The bird population is further decimated.
One of the three endangered species taking refuge there is lost, never to return.
The numbers of the two other species decline. In birdland, they’re not so happy, and manland is devastated. How could such a state of affairs come about?
The translation speaks:
Besides expressions of mutual exasperation among the negotiators, they shift gear into shifting blame once they learn the shocking reason for the bird colonies’ drastic decline: compromising. This realisation by the players serves up, to them themselves, pause for introspection.
For, if negotiation is all parties giving rein to their own interests, be they economic, logistical, ecological or some combination, it seems here to have been taken to mean rejecting all and anything rightfully asserting itself as perfect. Each parameter of negotiation is deemed malleable and gets nibbled at by the unspoken manipulations exerted by each of the forces that are engaged in the process. Against this backdrop, each is left with a feeling of having attained a win-win situation, in which arrangements get preferred that present reasonable risk in the face of predation in varying degrees of intensity.
The unforeseeability inherent in the damaged ecosystem, and in its component parts, means that the apparent stability cloaking the concerted action is, instead, racked with instability. The species that was unwittingly hell bent on thwarting the conservationist in fact shed light on the paradoxes and fragility of the framework legal rules, by which measures to offset habitat encroachment are laid down. The high status accorded to negotiation in this case is a testament to the current, prevailing legal uncertainty as to how this tool, or indeed any tool laid down in the law’s conservation legislation, should actually be put to work.
When man is given responsibility to care for the creatures of this planet, he must acquiesce in a realisation of that responsibility, not of his responsibility to his own interests but of that to those very creatures whose care is placed in his hands, for they cannot speak for themselves. It’s that very fact that makes such laws so necessary.
I have, not without some self-restraint, resisted employing the word “selfishness” to this point. But, what hope for a world in which man is incapable of wrenching himself out of his maelstrom of self-interest to, at last, see problems from the viewpoint of those who suffer the problems’ consequences? “It’s not our problem.” “It’s not our responsibility.” “It impinges on our profit, our comfort and our well-being.” Thus do we negotiate our responsibility away; we wash our hands, Pilate-like, and preen ourselves with self-satisfied, hollow epithets of win-win.
Take the notional bargain alluded to above, where the desired price is 10 for one party, 20 for the other. If we posit that 15 is the perfect price, and we deem it to be that figure by dint of the satisfaction of both parties upon achieving that price, how likely is it that that figure, 15, would have been agreed had it been demanded as an opening gambit? It’s almost unthinkable, and, in your mind and mine, there must now appear a quite different ideal figure: that of 12.50. Isn’t that the rule: one edges one’s way in from the wilderness of outrageous claims to the sweet point of agreement, mid-way between the two? But if the price for our agreement would, at 15, be perfect, reducing that price further may satisfy the wants of one or another of the parties, but cannot redefine what perfection is. The standard of perfection will not have changed; it remains at 15; bargaining positions cannot change that, no matter what new figure we negotiate.
What value a bird? What value a species? What value biodiversity? The fundamental problem facing climate change, conservation, and all that jazz is that we cannot see its needs for constantly seeing only our own needs. Like birds on the wing, they too will one day be gone: gone with the wind.
Footnote:
I was today dismissed as a troll. In a social media post in which loud voices rejoiced in the abandonment of a meeting of a European committee dedicated to cooperation by all but a few attendees at the point when a spokesman for Russia stood up to speak, I expressed the view that, where cooperation is vaunted, cooperation must be seen to be done. For this I incurred the wrath of those who see justification in rejecting Russia’s presence in such a body, some even demanding the identities of those in the clip who had remained to hear Russia, and their pursuit as “traitors”. A fellow member wrote to the effect that, if a body devoted to cooperation refuses to speak to one who will not cooperate, what, then, will it speak about?
The work of such a body is negotiation. Its members negotiate positions in relation to matters of crucial importance to its members, two of which are currently mutually embattled. A forum that offers glimmers, however slight, of a settlement to that tragedy has closed its ears in indignation. It is a case in which the interests in the topic for discussion lie there, within the body charged with their discussion. They are outside that body as well, but their resolution lies in the hands of two members of the committee: the Ukrainians and the Russians. If reason cannot be listened to, surely one might at least leave a channel open where it may be heard, if not heeded.