Alternative dispute resolution has gained significant ground over the recent decades, which is primarily due to the outlawing of war through the UN Charter, as well as the boom of international economic relations and the advance of human rights. In other words, the world has realized that traditional ways of conflict resolution are long, costly, sometimes violent, but most importantly very often fruitless. Therefore, new practices have developed and proliferated, mediation being one of them.
Mediation can be defined as “a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution”; or simply as “a form of neutrally assisted negotiation”. Despite sounding as a rather easy enterprise, it is a complex political endeavor that requires patience and perseverance together with numerous other factors in order for the negotiations to eventually succeed. Let us try and shed some light on the prerequisites of an effective mediation process in the settlement of international political disputes.
Guiding principles of effective mediation: how one should approach
After examination of relevant literature, in particular, the United Nations Guidance for Effective Mediation, several overarching mediation principles have emerged.
First and foremost, mediator should be impartial – and with that a nuance should be introduced: his (her) impartiality should be absolute with regards to the interests of the conflicting parties, while being grounded on certain values – peace, non-violence, human rights. Therefore, impartiality does not exactly translate into neutrality, mediator has a definite stance: he (she) is disinterested in the affairs of the combatants, but is a partisan of the common good. If this principle is compromised, there is very little hope that mediation will be successful – in the case of the Falklands/Malvinas conflict, U.S. Secretary of State A. Haig was perceived by the Argentinian side as acting on behalf of the British, due to the British-American special relationship and other factors. This perception incited mistrust and eventually led to the failure of the mediator’s efforts.
Second principle is credibility – to be able to proceed with mediation efforts, one has to be recognized as a person fit for the task, both from the reputational and expert standpoint. A good mediator should possess excellent communication skills, be experienced in diplomacy and negotiation, have the ability to inspire respect, demonstrate good analytical skills and commitment to the job. These features may well be attributed to Kofi Annan and Lakhdar Brahimi, and that was the reason why both of them were engaged in the mediation process for the Syrian conflict. The mediator’s main challenge, however, is to convince the parties of his credibility as potential interlocutor in their dispute, and the result challenge might be decisive for the peace process.
Third important principle is timeliness. In order for the mediation to bear fruit, the conflict should achieve certain “ripeness”, the parties should be ready to pursue alternative dispute resolution practices and express their consent to involve a third party. Moreover, mediation should only be conducted when the issues are clearly defined and the merits and quantum can be evaluated. This being said, conflicting sides often need to be persuaded of the merits of mediation, and peace processes must be well-supported politically, technically and financially. Therefore a conflict should not be immediately referred to the mediators, unless all preliminary conditions are in place.
Fourth principle indicates that mediators should demonstrate comprehensive preparedness. Firstly, this includes due diligence and study of smallest details of the conflict’s history. Ignorance is deadly, and one should have a very clear idea of what is the essence of the dispute and why before getting involved into the mediation process. Only having thoroughly studied the context, mediator will be able to suggest credible resolution scenarios. Secondly, mediator should ensure flawless logistics before and during the negotiations. Suitable venue, appropriate resources, equipment, staff and data – everything should be ready in advance so that procedural malfunctions do not spoil the process.
Fifth principle can be described as openness of mind. Mediator should be able to demonstratecreative thinking and flexibility of suggested formulas and solutions. The mediation process is supposed to be co-operative, participatory and potentially empowering for the parties involved, and in order for this to happen, mediator should be able to look at the dispute from several points of view and possess a vision reaching beyond the horizon of traditional solutions and trade-offs.
Sixth principle is adherence to international law, pre-determined rules and structure of the mediation process. The structure does not have to be too rigid, but should still be respected, otherwise the negotiations might plunge into a chaos or result in a mere talk-show. Focus on short (or at least limited) periods of time, clear-cut rules and red lines, specific agenda and principles of international law will help to streamline the mediation efforts and increase the probability of a productive outcome. A certain degree of flexibility as to the agenda and time limits, however, might be considered, should the situation require more opportunity space.
Seventh principle is equal contact with all the parties concerned. The inclusion of all interested actors in the process is almost a given, nevertheless, sometimes not all parties are engaged by the mediator to the same extent (as was the case during the Falklands/Malvinas conflict). Mediator should make sure that productive dialogue is maintained between all actors and nobody feels left out of the conversation.
Eighth principle is balance between being enabling and assertive, between mere facilitation and pushing for an agreement. The fine line separating powerful initiative and overstepping of the mandate is sometimes very blurry, and it is left to the mediator’s discretion to define the limits of his (her) engagement.
Ninth principle that should be abided by is perseverance. Very often the results are not immediate and several rounds of mediated negotiations might be needed. The challenge of mediation in Syria, for instance, lies in continuing efforts toward a peaceful settlement despite serious setbacks, with each failed mediation attempt carrying the risk of further escalation the violence.
Finally, mediation should be carried out from a realist perspective. Giving false promises of an immediate resolution would be a very serious mistake, and expectations from the mediation process should not be over-optimistic. At the end of the day a mediator can only be as effective as the parties allow him (her) to be. Thus the mission of the mediator is to apply maximum effort in the given margin of maneuver, whether it is small or vast. One should fully be conscious of the fact that success of the mediation efforts is a result of a joint undertaking, so failure of the process does not always mean mediator’s personal failure – it might be the unwillingness or unpreparedness of the parties to cooperate. The failure of the mediator, however, is not doing enough within the available opportunity space, not stretching resources and skills to the highest limit. When, and only in this case, maximum effort has indeed been applied, but bore no fruit, the mediator should have the courage to acknowledge failure and walk away.
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