Mediation 101 / When to mediate

Mediation is a tool, mechanism, or a system for conflict resolution. People can either go to court, go to war or find alternative ways to constructively end their disputes. Mediation works best in situations where there is a power disparity, parties want to maintain the relationship, reduce conflict costs, or where there is a high number of deaths on a battle field. As an earlier post has already defined mediation, let us focus on here on the when to mediate, under which circumstances and principles to mediate, and whether mediation is the right mechanism to address grievances between parties or not.

1. To mediate or not to mediate – that is the question
Mediation differs greatly from any other alternative dispute resolution method. It does not judge, arbiter, offer unilateral solutions, impose sanctions, criticize, expose, evaluate, decide, seek, speed up, fight, negotiate, resolve, nor does it manipulate, instigate, neutralize or exhonerate parties. Since we have learned that there are many definitions to mediation, I would like to emphasize that it helps the parties of finding an amicable and workable solution through the help of an accepted intermediary and it needs to be solution the parties can live with. It is very important to retain this popular definition of mediation because it is the parties who engage in mediation, not the mediator. It is their speed, level of comfort, and information base that allows for dangerous decision making processes. Mediation works alongside many different methods of intervention. In the African Union Handbook on Mediation, which I wrote while being part of a project led by a South African NGO, I shared 16 different ways of intervention, mediation being one of them. Mediation takes into account antecedent and current conditions and works towards outcomes that contribute to a larger peace process.
A peace process is the sum of all conflict resolution activities that lead to the transformation of a specific conflict. This means that, at times, a peace process is the result of a range of mediated agreements. Sometimes, it takes just a comprehensive peace agreement to be mediated to end the violence. And, cessation of hostilities, containing the violence, and moving towards constructive resolution of the conflict is when we mediate. Securing the right for individual to live, survive, be heard, and to alleviate any suffering is the right time to mediate. And we mediate at the earliest possible point, when security conditions are favorable, the parties have invited the mediator, and if the mediation is running according to the Do No Harm principles. If there are personal risks, risks to the parties, to the government, to the rebel groups, to the refugees, then there should be NO mediation, but rather another tool for intervention, such as good offices, disaster management, crisis management, sanctions, embargoes, etc. This may ripen the situation for any peace process to happen, but more importantly, the parties’ attitudes and acceptance of the mediation and the mediator are key for the initial brick to be laid. This, in return, means that mediation is not concerned with conflict resolution per se on the onset, although it can be used at a different level and with varying degrees of interaction and coordination to address and transform the root causes of a conflict.

2. Complementarity and convergence
Especially in political mediation settings, the added value of coordination, complementarity and convergence of competences and capacities does pose a great deal as to the success of a mediated process. Albeit still missing actually validated data linking process to outcomes, it can be said that the more convergence is taking place between various actors and different peacemaking structures, the more useful an intervention can become to stop the violence and to create the negotiation space required for warring factions and traumatized people to get together and to even think of forgiveness and reconciliation. A single actor or entity is not able to quell the violence in a conflict or to even deter a recourse to violence. It takes a range of stakeholders and actors, at various levels, from the international to the national level, from the country to the local level, and from the local level to the tribal and individual level to address and tackle conflict and post-conflict settings. Issues of inclusion, equity and equality have to be positively addressed in order for a meaningful conflict transformation process to take place. This includes the inclusion of women, minorities, the marginalized and the most vulnerable in a post-conflict society.

Mediation 101 / How to mediate

Mediation takes place across a range of styles and it is inherently connected to the person who is mediating. As much as the various styles are being used to explain or expose a certain way on how to mediate issues, people, and disputes, the personality, individualism, idealism, and ethics of the mediator play an equal part in success or failure of a mediated process. A third dimension, apart from the styles and personality, is the contextual dimension of the mediated process. Some may feel that mediation principles adhere to all the contexts, be it labour disputes, a peace dialogue, or a cease-fire mediation, and that the only distinction is the style of mediation used, whether it is to contain the violence or to engage into resolving the deeper issues and root causes of a conflict. Others say that there is no blue print when it comes to negotiations skills and that it all depends on a sound understanding of the history and the context. And again other voices say that it may be wise if the mediator knows nothing at all when he or she engages with the party in order to really remain neutral and impartial at all times and throughout the process.

1. Principles of negotiation
When it comes to principles of negotiation, we are all reminded of the teachings and learnings derived out of the Camp David process, the principle of consensual negotiations as taught by eminent scholars at the Program on Negotiation at Harvard. And, in many cases, these principles do apply to a range of settings, contexts, and situations. However, it must be pointed out that mediation differs a lot from negotiation in every aspect of the word. Some schools and training centers do apply the same rationale when it comes to seeking interests instead of positions and focusing on the problem rather than the people. The underlying assumption is that there is an equality of power in terms access to information, equity in representation at the negotiation, and a common set of cultural values, ranging from language to basic human needs. Albeit striving for this theoretical approach is a valid point, mediation needs to take different dimensions and categories into account. In most cases I have been involved in, the first principle to focus on problems rather than people is a problem in itself. Often times, people are the problem. Hence – while the technique of negotiation is a very important skill, it needs to be sequenced differently and in a different settings when we talk about mediated process as mediation focuses on not only voluntarism of working towards a common solution, but most importantly in a change of attitudes. While negotiations focus on a predefined set of activities, e.g. disarmament, power-sharing, etc., mediation focuses on a process. A principle of mediation is therefore that the process of mediation focuses on both, the people and the problems and it is up to the knowledge (less so the skills) of the mediator to get this aligned, building trust and dialogue and a constructive atmosphere, in order for equal negotiations to take place.

2. The moment of ripeness
The teachings of learned scholars tell us that it is important for a conflict to be ripe to be amenable to solutions. This can take place either because the people are tired of war, or the warring parties are running out of military options, etc. This canon has been repeatedly taught in schools, universities and is the foundation for any conflict intervention. It has been complemented by the notion of readiness, where parties, and possibly interveners, need to be “ready” in order to engage in conflict transformation.
From personal experience, I would argue that while these are valid points and tenets, early response and early entry is crucial as it is linked to the right of the individual to be alive and mediation is there to cease, halt or delay the violence. Often times, people refer to success or failure of mediation. The question remains to what extent this can be of importance and to whom? Is it of importance to the mediator, so that he can have another mediated process under his belt or is it of importance to the agency that is sending the mediator? Or isn’t it rather a question of who will benefit from the mediation? Since there are many mediation contexts, I would limit my suggestions onto cease-fire and political mediation, and thus there can be no doubt that in line with the tenets of human rights for the right to live, that a thoughtful and timely early intervention is better than having the population bled out before intervening. It is assumed that not everyone nor every outfit is destined to do such an intervention, yet there are a number of agencies, intermediaries, individuals and insider mediators who, if and when properly equipped can enter the conflict realm and provide throughout mediation services, that can then complement other mediation activities.
More interesting and of importance to the mediator are the intrinsic conflict dynamics and the perception that exist between the parties that guide a mediator’s decision to intervene or not.

3. More knowledge, less doing
Although skills are important, the emphasis is more on knowing than doing. Communication skills and even administrative skills, especially documenting, recording, storing, sharing and reporting, are vital components and corner points of any mediation endeavor. Yet, if there is a toolbox the mediator can use to gain trust and credibility to get his or her job done, then it happens less so by him or her doing something, but rather with him or her knowing about the conflict, knowing about the cultural sensitives, knowing on how to communicate the things that can be said and to explore the things that are left unsaid, knowing on how to use the power to create alliances in order to support mediated processes, and knowing about languages. This, of course, may change, depending on the context and the setting of the mediated process. For instance, if a process requires security arrangements to be agreed upon, then the skills and the knowledge of a technical experts with facilitation skills would be quite useful to use. Furthermore, different conflict environments or topics may necessitate a different range of styles, actors, and complimentarity of efforts and actions in order to succeed. A key competence, which cannot be taught in schools, trainings, or other laboratory experiments, is timing. Knowing not only about the relevance of time in a specific cultural setting, but also knowing when to do what and what time and for what purposes,is a key competence, and, if I may use the term deliberately, a critical skill for any mediator. Again, this may be different for other dispute resolution mechanisms, but it holds definitely true for any mediation effort. Kofi Annans’ intervention in Syria is a case in point. Timing should not be confused with ripeness, since ripeness discusses the issue of intervention or not, while timing suggests that a process is already underway and that the mediator needs to work on changing attitudes, behaviors and motivations of all involved parties at the negotiation table. Knowledge is the essence of any mediation process.

4. Final thoughts
I would like to conclude by emphasizing on the issue of knowledge. Universities, training institutions, and international organisations need to review the way future generations of mediators will be trained, taught, and peer shadowed in order to be effective, not successful or failed, mediators.

On Mediating Multi-Party Disputes

This is an excerpt out of an excellent book on how to address mediation issues in multi-party disputes – recommended!

When addressing conflictive issues, mediators are often confronted with multi-party disputes, conflicts involving more than two opposing parties.
Although the strategies discussed elsewhere on this site are helpful in these cases, several special considerations should be kept in mind:

– Spend extra time in pre-negotiation and needs assessment. This helps gain a sincere commitment to the process from all participants. It also clarifies how the issues are perceived from the various vantage points of the parties, minimizing surprise factors at the point of discussion.

– Use opening statements by participants as an opportunity for each person to share initial positions and be understood. An extra “restating ground rule” may be appropriate, where participants are asked to restate the previous person’s viewpoint before presenting their own. Don’t rush past initial statements, despite pressure to get on with business.

– Actively seek common ground early, not to minimize areas of difference, but to clarify them. By identifying issues that can be resolved in light of these areas of agreement, support can be built for continued dialogue.

– Recognize that several levels of negotiation need to occur. Cross-group discussion is the primary focus of substantive negotiation, but within-group communication is important to psychological and procedural needs in conflict. Try to allow time for dialogue within smaller groups, while keeping large group discussions focused on the explicit tasks of the group.

– Whenever possible, have subgroups form that break down old coalitions. This may offer participants the chance to shift from adversarial to solution-oriented relationships. If the group has multiple meetings, they provide excellent opportunities to establish task forces, project teams and information gathering groups, which rearrange traditional alliances.

– Be sensitive to the tension between being (social cohesiveness) and doing (task effectiveness) within the group. Managing this inevitable tension requires great skill on the part of the mediator. Disputants often have a profound experience in “knowing the enemy.” This is valuable for its own sake, aside from substantive progress, and could translate into goodwill that is valuable in other settings. The mediator needs to constantly check with the group to be sure that any urge to be solution-oriented is a focus they continue to share, and help members realistically comprehend consequences of their decisions.

– Be especially sensitive to the role of moderates and extremists within the meeting. Moderates are defined here as those who demonstrate flexibility in negotiation. This includes a willingness to consider a variety of options and a desire to attend to others’ needs in negotiation. Extremists in this context are those who rigidly hold on to a minority position. They narrowly define the agenda and often sabotage efforts by others (even in their own camp) to negotiate. In such multi-party disputes, it is critical to empower the moderates to “find their voices,” and be sure their views are clearly expressed. Extremists tend to dominate such discussions, fearing that their concerns will lose if they don’t argue forcefully: They need to be able to express their concerns and have them acknowledged, but this must occur within a context that allows all views to be represented with integrity at the table.

– Continue to be vigilant regarding your neutrality throughout the process. Major issues raised by ad hoc subgroups should be brought back to the larger group for resolution. Watch for possibly biased responses to extremists within the group; since they may be exhibiting attitudes you do not share, biases may lurk just beneath the surface of the meeting and emerge in subtle language or non-verbal behaviors. You may find it beneficial to “de-brief” during such experiences with a colleague as a reality check for your neutrality in the dispute.

(adapted from Harry Webne-Behrman, The Practice of Facilitation, Quantum Books, 1998. All rights reserved.)