by

Berton Lee Lamb and Susan K. Driver

A few years ago we were involved in a multi-party negotiation that had an interesting dynamic. Two of the parties in this negotiation were allies. Although they supported each other, one of those parties was more moderate. As the process unfolded it became clear that the more extreme party was really only interested in one issue. When that issue was settled the more extreme party stopped attending the negotiation sessions. The moderate party was not prepared for this change, and then struggled when it was perceived by the remaining parties to be extreme. Withdrawal of their ally was an “October Surprise.”

An October Surprise is not really about October; it is about surprises that occur late in a negotiation process. The term October Surprise comes to us from American political campaigns. What campaign managers mean by this term is that you can count on some kind of surprise late in the campaign. In the American election cycle that is October. The surprise might be an event, revelation, or opponent’s action that reflects positively or negatively on a candidate.

As was the case with the moderate and more extreme allies in our negotiation, the surprise withdrawal of one party was not planned for and changed the frame of the negotiation. The lesson for negotiators is to expect surprises and be ready for them. This is especially true in multi-party negotiation.  Three examples:

1. Someone unexpectedly joins the conversation. This might be a political figure who decides to intervene, take charge, or seeks to influence the outcome. It could also be a party standing on the sidelines who suddenly decides to join the negotiation.
2. A regulatory agency or court makes a decision in another case, setting a precedent that affects or counters the assumptions you and the other parties have made about the legal or political landscape.
3. New facts: an expected study (or unexpected finding from a similar case) is presented to the parties, greatly changing the frame of the debate.

Negotiators should assume that such surprises will occur. Because these are surprises, negotiators often cannot predict what they will be or when they will happen. What can be done?

First, negotiators can anticipate that they will find themselves in this situation. A good negotiator can make a list of categories of surprises and think about how to react in each type of surprise event. By anticipating that surprises will arise in a negotiation, a party can be somewhat prepared to respond in the moment if one of these events occurs.

Second, during the assessment phase of negotiation planning, negotiators can evaluate the potential for different types of surprise events. A good negotiation assessment at the beginning of the process can help negotiators identify likely problems that may emerge down the road. For example, it is relatively easy to know when a party that should be present is not participating; they may seek to join. Or, in another scenario, a negotiator might be able to identify one of the parties that favors litigation and therefore expect that party to go to court at some point.

Third, negotiators can canvas. To canvas means to keep eyes and ears open and to hone listening skills. But it also means that negotiators should be aware of what is happening away from the negotiation table. A good negotiator remains vigilant for what has been published in the media, tracks similar negotiation processes and related litigation, and watches for emerging policy trends among regulatory agencies.

Anticipating that there will be an “October Surprise” near the end of a negotiation process will help prevent the negotiation from being disrupted and keep the parties focused on reaching a final settlement agreement.