By Jamie Arbuckle, for Peacehawks
Introduction
and Background
The end of the Cold War did not, as we then
so fondly hoped, usher in an era of peace.
Although interstate wars may seem to have become relatively rare,
intra-state conflict has become nearly constant and largely intractable. Armed force alone is of little value in resolving
these lower-level but deadly conflicts – and intrastate wars have since the
early Nineties been characterized by sickening casualty tolls.[ii] Alternate means of management and resolution
of conflicts by non-violent methods have therefore been widely sought. These have, in some cases, offered real hope
for the mitigation and even the prevention of conflict.
A resultant interest in the tools of
mediation and negotiation continues to grow.
The entire field which is generally referred to as alternate dispute
resolution seems to present an attractive soft power tool box for the restoration
and maintenance of peace. It has become an essential measure for containing,
preventing and (hopefully) resolving conflict – non violently.
On 25 November 2014 Peacehawks attended a
conference on Peace Mediation, jointly sponsored by the German Foreign Office
and, prominently among others, the Berlin-based Zentrum fuer Internationale Friedenseinsaetze (ZIF: Center for
International Peace Operations). The
conference was held in the Europa Saal of the Federal Foreign Office on
Unterwasserstrasse in Berlin. The
conference, as it developed, was not really about mediation itself, but rather
about the questions of if, how and in what cases, Germany might have a third
party role in conflict intervention. As was soon pointed out by several
delegates, this question has been under discussion at least since the end of
the Cold War. Considered answers have ranged all the way
from “Why not?” to “Of course!”
Regarding the participants of this
conference from the narrow ledge of my generation gave me an almost vertiginous
feeling – they were mostly 40 or a bit, mostly German, and about half
women. And here they were facing up to a
question, or a bundle of questions, which the graybeards of my service time in
Germany had found unthinkable – when most of this audience were just in their
teens. Some people have indeed come a
very long way in just one generation.
Nevertheless, I’d lived with these questions for a long time, and they
were no longer up to me or even my generation.
So I slipped away to thinking about just what mediation really means,
and how it ought to work – but has, in our life and times, so seldom done.
What
is Mediation, What is a Mediator, and Why?
Mediation is assisted negotiation. In this
paper, this will imply a conflict which is a threat to international peace and
security and, in accordance with the Charter of the United Nations, is to be
settled “by peaceful means and in such a manner that international peace and
security, and justice, are not endangered.”
(Article 2.3)
The mediator is not a party to the dispute
or the conflict, and has not or should not have any interest in the outcome. The
mediator is like a referee: caring only how the game is played, and not at all
concerned with who wins or loses.
The mediator is the custodian of the rules
and procedures of the process. She may
have initially declared these rules if it is the only way to start the play,
but it is far better if the parties design and agree on their own set of rules.
Indeed this process of designing, agreeing upon and installing their own
operating rules may be seminal to the entire process. We call this process of setting rules meta negotiatons - negotiating about negotiations, and
without the willing cooperation of the parties in these initial steps, we may
be in for some very hard times.
So even though the mediator may initially
and of necessity play a very active role, he fully intends to work himself out
of that part of the job, with the parties negotiating directly with each other.
Why doesn’t it work that way from the
outset? Why is a third party needed at all?
A mediator is needed because there is
·
Something about the problem, or
·
Something about the parties, or
·
Something about the situation
which makes direct inter-party
communications impossible, and a mediator must assist the negotiators.
The
Stages of Mediation
Mediation will usually progress through
several stages. These are not necessarily linear; they may overlap, there will
be regressions and great leaps forward, and the process may stall for considerable
periods. Nevertheless an idealized schema of the phases of mediation may be
helpful in understanding and planning the process, and is presented here.
Phase 1
The mediator will have a leading role, and
will probably do most of the talking. Schematically it might look like this:
This is like the pre-game stage of a
football match, where the referee introduces the team captains and his
assistant referees to one another, and he lays down or reiterates some rules.
He flips a coin, and one team elects to kick off and the other to defend. The players have little to say at this stage
– they exchange flags, shake hands and take their teams onto the field.
Phase 2
The game is now afoot: the mediator may ask
the parties to make opening statements. Each party will be reminded not to
interrupt the speaker, but to prepare their own response as a separate
presentation. The parties are still
speaking principally to the mediator but are, it is to be hoped, listening
closely to each other.
It might look like this:
·
The mediator is enforcing their rules for the parties: he
maintains a high standard of courtesy.
He enforces their rules about
language, particularly as concerns race, religion and gender.
·
Again like a referee, she keeps
the time in accordance with the rules which the parties have set.
·
He is employing a fact checker
– apocryphal history is often
deliberately (or even unwittingly) used by the parties, and can be enormously
destructive of discourse. The mediator
will be alerted to this by the fact
checker, who is sort of an assistant referee.
Phase 3
The mediator will now invite the parties to
respond to each others’ presentations. As heretofore, he will be policing
language, checking facts and keeping time – all in accordance with the parties’
own agreed rules.
It should look like this:
And now that the parties are speaking
directly to each other, effective
listening will be especially important.
Here the mediator will see for the first time if this intervention is to
bear fruit – if the parties can
communicate effectively with one another, there is hope for, if not yet a
solution, at least for the management of the conflict. If this does not happen,
the mediator may have to revert to Phase 1, and will speak with each of the
parties in turn. This would be a major regression, and does not bode well for the desired progress.
If this phase is successful, then we can move on to
Phase 4
The mediator will move as far as possible
into the background: the parties are communicating directly with one another – they are negotiating. If this phase is sustainable, the mediator’s
job is largely done, and she may more or less leave them to it.
We hope it will look like this:
Of course the mediator has not entirely disappeared, anymore than
does the referee when the game is going well. There are some key issues which may
from time to time require the mediator to intervene. Some of these might be:
· It may be that the parties are
lacking in skills and techniques of negotiating. The mediator may, with the
consent of the parties, arrange for training in negotiating techniques. If this
is to be necessary, it would best be done as a prelude to the negotiations, but
the problem might only become apparent in the course of negotiations. In that
case it might be necessary to have a recess for training.
·
The weaker party may often have
difficulty being heard, and the mediator must take steps to correct that. In this way the mediator levels the playing
field, and may have to intervene frequently to keep it that way.
·
Listening can be more powerful
than talking, and the mediator can as necessary, by questioning and re-stating,
ensure that the parties are listening effectively.
Relationships
are important. The conflict may have arisen in no
small part because the relationships which are necessary to living peacefully
with neighbours, even or especially when the neighbours are historic enemies,
have never existed or have broken down. Nevertheless, solid relationships,
especially involving trust, can provide the safety net which enables the
parties to undertake the compromises and the risks which negotiations will so often entail. The mediator can do much to foster and maintain
relationships among the parties.
Essentially, the mediator asks the parties to set aside nearly
all the minor issues which may appear to have
caused the conflict; what remains will hopefully be the core issues which
can then be the objects of real negotiations.
Some
Characteristics of Some Solutions
Whoever
wins all the points and all the arguments usually has won nothing. The Versailles Treaties were not the end of WWI, they were the
beginning of WWII.
Peace
usually does not equal victory. To paraphrase
Winston Churchill, those who pursue peace through victory usually achieve
neither. Zero-sum games usually produce
no winners, only losers.
A solution, in whatever form and by
whatever methods it is achieved, must be fair, wise and efficient.[iii]
Power
cannot be hoarded, and often must be shared.
The most common form of power sharing at
the national government level is the formation of a coalition government.
Germany, one of the wealthiest and most stable countries in the world, has had
a coalition government for most of its post-WWII history.
In Kenya, elections in December 2007
resulted in an outbreak of terrifying tribal violence which left 1,000 dead and
made more than 300,000 homeless, while shattering the country’s image as one of
the most stable African countries. The elections were largely considered to
have been rigged. Nevertheless, the
re-elected president promptly conferred 17 of the 30 most important cabinet
posts on members of his own tribe. Former
UN Secretary-General Kofi Annan was
asked to mediate the conflict. Quickly realizing that the traditional power
hoarding had finally broken down and could never be made to work again, he
invited Germany to send an advisor who would introduce Kenyan politicians to
the idea of a coalition. Gernot Erler, then State Secretary of the German
Foreign Office, travelled to Kenya and presented the idea of power sharing and
the formation of a coalition, apparently the first his audience had ever heard
of this form of government. The two main
parties agreed to a coalition government on 29 February 2008. The process was called the Kenya National
Dialogue and Reconciliation (KNDR); the agreement was called the National Accord. The assisted
negotiations had lasted 41 days.[iv]
Conflict knows no panaceas, but the
violence was quelled. A new constitution, said to be the most progressive in
Africa, was promulgated in August 2010, fulfilling a two-decades-long effort to
reform the old constitution. Despite
another outbreak of tribal violence in August 2012, elections in January and
March of 2013 were largely peaceful, and were considered by observers to have
been generally fair. The National Accord was fair, it was wise, and it was
quickly implemented. It has a good chance to endure.
We admire successes like this, but we need
to be reminded that it is seldom that one gets into, or out of, these affairs
so cleanly, nor anything like so quickly. A civil war, which is what Kenya
nearly had, is usually a great mess. Casualties and refugees are in
astronomical numbers and growing. There are international, regional and local,
military and civilian agencies deployed.
Mandates proliferate, duplicate, omit, conflict. Missions creep, crawl
and fail. The environment is somewhere between volatile and extremely
dangerous. In Kosovo at the end of 1999 there were the UN, OSCE, UNHCR, EU, NATO, perhaps 500 NGOs (nobody
ever knew quite for sure), and probably over one million returning refugees and
IDPs. This was in an area about the size and population of Berlin. That “intervention” is now 15 years old.
Those who would become involved in conflict
management, by whatever means, should think seriously about the complexity, the
dangers and the probable duration of such interventions. And that goes especially for the conferees
sitting those few metres above Unterwasserstrasse on a rainy November day in
Berlin last year.
Some
Other Problems for the Mediator
It
may be difficult to define the parties, which may
be fragmented, internally conflicted or not legitimately representative of
whatever cause or point of view they claim to espouse – sometimes all of the
above may be true. Thus one or more
parties may look like this:
It may also be difficult to see who has the
power, who can really negotiate and who is simply acting under instructions. Is
it P1? Or is the real power figure hiding somewhere in A, B, C, D, E or F? The primes
inter pares may be deliberately and carefully concealed.
Compounding this difficulty, it may well be
that there are in deep background and/or off-shore players who, while well
known cannot for political and diplomatic reasons be formally identified, but
who are closely controlling the parties at this mediator’s table. As it was and probably still is in Cyprus, representatives of Athens and Ankara were disguised as members of the local Greek Cypriot and Turkish Cypriot communities, and especially of their armed forces. So it is
whenever the Cyprus conflict is discussed: the real power behind both parties resides
in Athens and in Ankara. This can never
be formally acknowledged, but is why over 50 years of negotiations in Cyprus have gone nowhere: the
decisions are taken by Greeks and Turks, and almost never by Cypriots.
The only thing the mediator can do is to
insist on negotiations in good faith, and that means that each party must field
a genuine negotiator, and not just a note-taker and reporteur. Nevertheless,
there will be varying degrees and limits of authority around the table. It does not make it any easier for the
mediator that nearly everyone else around the table - except the mediator - knows perfectly well these shadings of
authority and legitimacy. No one ever
said this was going to be easy.
Some people do not want peace. Often a
party will think victory is in their grasp, and there is no point in negotiating.
As Radovan Karadzic said in 1993, "They are
militarily defeated, and we have no urgency to negotiate with them". A “deputy” in the Bosnian Serb “parliament”
echoed that: "This
resolution should be thrown out together with the Vance and Owen maps. We Serbs must militarily defeat our enemies
and conquer the territories we need.”
And a good many people prefer war: the perennially workless, without legitimate
prospects or place in a society they despise, usually with a low violence
threshold – these often find barracks and operations, no matter how ramshackle,
vastly preferable to waiting in lines
for jobs which will never be theirs. As Robert Kaplan wrote in 1994, “a large number of people on
this planet, to whom the comfort and stability of a middle-class life is
utterly unknown, find war and a barracks existence a step up rather than a step
down.[v] These are a crop regularly and fruitfully harvested by those
who do not want peace, who wish never to share power with those they despise,
and who often regard negotiating as shameful – “unmanly”.
These spoilers will ever be in the background of conflict,
and the mediator who has not yet encountered them is looking under the wrong
rocks.
The balance between hard and soft power will
be essential to the level field, but may be outside the range of the mediator to
manage. This is a continuation of the
challenge of making the weaker voice to be heard. In another sense, where a
mediator is facing off with the Mladics and the Karadzics, it may well be she
who faces an asymmetry of soft vs. hard power. If there is a peace operation
engaged with that particular conflict, their capacity to contain and prevent
escalation of the conflict will be critical to the conduct of the mediation, and
the peace force may lend the mediator a needed touch of hard power. The mediator must have intimate contact with
the peace operation – they need each other, and a close partnership is
essential to them both. Especially the mediator will need to have a clear
understanding of the mandate of the peace force: is it consensual (ie grounded
on Chapter VI of the UN Charter) or is it an enforcement mission (mandated
under Chapter VII of the Charter)?
Apocryphal history
misleads
us all, and conflicted parties are often led into and then trapped by a version
of history which lies somewhere between incomplete and false. Legends are important, but so is the truth. As Victor Hugo wrote in Les Miserables, in 1862:
The past, that ghostly traveler, is likely to forge his papers. … The past has a face which is superstition, and a mask,
which is hypocrisy.
We must expose the face, and tear off the mask.
And that is just one
more difficult and delicate task for the mediator.
There are several
reasons why the mediator must have an
independent, and if necessary aggressive, pr capability.
Leaders often do not truly represent “their”
people, nor the people’s aspirations. Do not just ask the men with the guns what their real interests might
be, ask those women and children who make up that nearly 90% of the casualties
of recent conflicts. The mediator must
have the means to do just that; she must
have her own voice.
The mediator must have a robust public
information policy and means.
When in 1992 the UN Protection Force (in the former Yugoslavia – UNPROFOR)
applied for a licence to operate a UN information radio programme in Croatia,
the licence application was denied by the Croatian government, and there the
matter “rested”, for nearly four years of misrepresentation and scapegoating, as often as not by the Croatian
government. But this was the UN’s
traditional passive PR policy: don’t descend to their level; never explain,
never complain. Whatever was thrown,
stuck.
In 1996 the UN
Transitional Authority in Eastern Slavonia (UNTAES) didn't ask, they acted. They quickly recovered the never-used
UNPROFOR broadcasting equipment from its Zagreb storage, fired it up and went
on the air. Before that mission was six
months old, the voice of the UN was being heard everywhere throughout the
region, for up to three hours per day, and
was almost immediately one of the most-listened-to programmes in its broadcasting
area, which was of course far wider than just Eastern Slavonia.
It will be convenient to blame the third party
for everything. As Ingrid Lehmann has written:
Speechlessness and loss of credibility ... can
encourage scapegoating … by the … parties .. . based on often deliberately promulgated false expectations, rumours and
misinformation.
In the new peacekeeping environment of civil and
ethnic wars, where hate propaganda is increasingly used as a weapon by the
belligerents, ignoring the impact of this information tool is no longer an
option.[vi]
The mediator must
influence, if he cannot control, the media flow and the story lines. He must curtail or at least respond to unrealistic expectations, or
distortions of his mandate, and he especially cannot be pressured to produce
results. His motto must be “no deadlines, no headlines.” Above all he cannot allow scapegoating.
Conclusions
The non-violent
resolution of conflict involves issues such as relationships, especially trust,
patience, effective listening, correcting history’s false lessons, external
intervention – one day’s reading of international news will show just how
delicate and difficult these issues and measures can be. “Knowing me, knowing
you”, it is not surprising that this often does not work, it is amazing that it
ever does. “It’s the best we can
do.” In mediated negotiations, the
mediator asks the parties to set aside nearly all the issues which may in fact have
caused the conflict.
Despite the
extraordinary delicacy of the process, a mediator can assist parties to
negotiate who could never on their own even meet. A mediator can help to build or to repair
relationships which have been shattered or have never existed. The mediator can level the playing field, can
give voice and security to the weaker party, maintain a balance of hard and
soft power, and can steer the parties to an agreement which is fair, wise and
efficient, and this will usually be an
agreement which will endure.
A successful mediator
is a good referee: she cares how the game is played, not how it plays out.
This stuff is never
easy, never simple, and never quick.
And that probably is the best we can do.
[ii] In WWI the military
comprised about 90% of the casualties. In WWII it was about 50/50. In the
intrastate conflicts since the end of the Cold War, civilians have been about
90% of the total casualties; of these, the majority have been women, children
and the elderly – these are often tied to their land for sustenance and receive
no medical or other support when forced from their land. For them to be
displaced is often a virtual death sentence.
[iii] See Hoffman, Ben, Win-Win: Competitiveness Made in Canada, Captus
Press Inc, North York, Ontario, Page 13.
Ben Hoffman has been my mentor,
boss and friend since we first worked together at the Lester B. Pearson
Canadian International Peacekeeping Training Centre in 1995, and on numerous
occasions since then. He founded the Canadian International Institute for
Applied Negotiations in 1994 (See http://www.ciian.org) .We have become so close over the years
that I honestly cannot estimate my debt to him, and I often cannot separate my
ideas from his. Ben is a highly original thinker and practitioner,
and I am grateful for his leadership and his friendship.
[iv] See http://kofiannanfoundation.org/our-work/kenya-national-dialogue-and-reconciliation, accessed 12.12.2014
[vi] See Lehmann,
Ingrid, Peacekeeping and Public
Information – Caught in the Crossfire, Frank Cass, London, 1999, Pp 152-3
Good expose on mediation. Thanks for sharing these insights.
ReplyDeleteNoemi
Good article on mediation. Thanks for sharing the insights. Waiting to see the refurbished Peacehawks.
ReplyDelete