“Behind-the-Table” Conflicts in the Failed Negotiation for a Referendum for the Independence of Catalonia: A Student Note by Oriol Valentí i Vidal

By Oriol Valentí i Vidal*

Spain is facing its most profound constitutional crisis since democracy was restored in 1978. After years of escalating political conflict, the Catalan government announced it would organize an independence referendum on October 1, 2017, an outcome that the Spanish government vowed to block.

This article represents, to the best of the author’s knowledge, the first scholarly examination to date from a negotiation theory perspective of the events that hindered political dialogue between both governments regarding the organization of the secession vote. It applies Robert H. Mnookin’s insights on internal conflicts to identify the apparent paradox that characterized this conflict: while it was arguably in the best interest of most Catalans and Spaniards to know the nature and extent of the political relationship that Catalonia desired with Spain, their governments were nevertheless unable to negotiate the terms and conditions of a legal, mutually agreed upon referendum to achieve this result.

This article will argue that one possible explanation for this paradox lies in the “behind-the-table” conflicts on both sides. For Catalan secessionists, this conflict related to the role that unilateralism had to play, if any, in the negotiations with Spain to organize an official referendum for independence. For those against it, most notably the Spanish political parties, the pressing internal conflict concerned the scope of the negotiations that had to be conducted with the Catalan government. These internal “behind-the-table” conflicts blocked an “across-the-table” agreement, leading to a deadlock in negotiations.

This article hopes to contribute to the academic conversation around the barriers to progress in high-stake negotiations, and it suggests that the failure to negotiate an independence referendum for Catalonia reveals the limits of unilateral action in the context of a supranational region like the European Union, the dynamics in negotiations where there is a sharp power imbalance between the parties, the tensions between democratic legitimacy and the rule of law, and the risks of path dependency for negotiated agreements.

Read the full article here.

*Attorney; Lecturer in Law, Barcelona School of Management (Universitat Pompeu Fabra) as of February 2018. LL.M. ‘17, Harvard Law School; B.B.A. ‘13 and LL.B. ‘11, Universitat Pompeu Fabra; Diploma in Legal Studies ‘10, University of Oxford.

Power Imbalances in Mediation: A student note by Amrita Narine

By Amrita Narine*

In recent years, mediation has become increasingly popular and now represents a viable option for parties in a variety of scenarios. Despite its rising popularity, mediation has received mixed responses because of the potential to entrench preexisting power imbalances. This paper will explore the usefulness of mediation when dealing with an imbalanced power dynamic.

In part I, this paper will focus on defining power within mediation. Part II will explore the critiques of mediation in situations where there is an imbalanced power dynamic and specifically delve into gendered imbalances and employment imbalances. After exploring the critiques and responses to them, part III will focus on specific techniques that a mediator can use to help balance out the power dynamics at play and offer best practices for dealing with power imbalances.

Read the full paper here.

*Amrita Narine is a third year JD student at Harvard Law School. She currently serves as the Managing Editor for the Harvard Negotiation Law Review and previously served as Submissions Editor. She graduated summa cum laude from the Macaulay Honors Program at CUNY Baruch where she received a Bachelor of Arts in Sociology and Corporate Communications.