Mediation in Peacekeeping
Mediation is ‘facilitated negotiation’ – where a third party is brought in to assist the conflicting parties to reach their own agreement, rather than an imposed solution.
It can be a formal or informal process, but the principles remain the same. In a peace mission, you may be called on to fulfil the role of a mediator – for example, with work colleagues or between disputing factions in a community.
This section will provide the practical tools you need to fulfil this role. A large part of effective mediation comes down to personal presence and communication skills. It is an art form – one that will take years of practice in which to become proficient, but it is a skill that will serve you well your life through, in a wide variety of situations.
Key Things to Learn
• Understand what mediation is, and when it can be appropriately used
• Understand the key mediation concepts of neutrality and impartiality
• Learn how to share a mediation role with another person, as co-mediators
• Develop a plan for mediation, from start to finish
The Independent Third Party
When there are too many parties, or where parties want to negotiate but the conflict is too severe for them to do it without outside help, a mediator will be brought into the process. This is generally an acceptable, impartial, neutral third party who will assist the parties to reach their own agreement (not impose an agreement) – think of it as ‘facilitated negotiation’.
What is Mediation?
Mediation happens when the parties involved in a conflict want to negotiate to find a solution, but are unable to come together and reach agreement without the assistance of a third party. Mediation can be used in an international border dispute, in a community dispute, or between colleagues who can’t work together.
In most cases, mediation:
- involves two or more parties;
- occurs under the invitation of the parties to a conflict;
- involves an acceptable, impartial and neutral third party, whose role is to assist the parties to reach their own mutually acceptable agreement, and who has no authoritative decision-making power;
- happens when there is a problem, a conflict of interest or a common concern between parties;
- is appropriate when the parties have an uneven power balance;
- can only occur when parties are willing to negotiate;
- happens when the parties want to reach a joint agreement;
- is a verbal, interactive process; and
- requires the mediator to assist parties to identify the issues of conflict, educate each other about their needs and interests, come up with possible settlement options, and bargain over terms of a final agreement.
Are You a Mediator?
Most people have some experience of being mediators, whether in your family or work context, or in your community or neighbourhood. Mediation is thus both a formal and an informal process – anyone can potentially be a mediator.
Reflect on these experiences – they will help you in your quest to learn the formal art of mediation. What did you do well? What went wrong? What did you find difficult?
Learning to be a mediator is a process of integrating your personal experience and insight with skills, techniques and theoretical approaches that you learn.
Mediation can have different ‘flavours’ in different contexts – it may have a therapeutic angle (e.g. in the case of community mediation), it may have a legalistic undertone (e.g. in a labour or contract dispute), or it may have a statesmanship quality (e.g. in an international political dispute).
What can Mediation look like in a Peace Mission Environment?
There is a fine line between facilitation and mediation in a peace mission environment, where you may be called upon to play all kinds of facilitation roles around varying levels of conflict.
Civil Affairs officers, military observers and/or military units may, from time to time, be called on to hold meetings with the local community to convey information about the peace process, and to receive feedback from the community on certain proposals. These meetings are sometimes held with a small group of community leaders, but they are also commonly public meetings that are open to all to attend. Even meetings that the peacekeepers intend to be small and private may end up being public, because there may be a different understanding of privacy within the local community. Peacekeepers are thus likely to find every possible space on the floor taken up by children and other curious members of the local community, and many others may be crowded in the doorway and windows.
Negotiations in these settings take on the form of ‘meeting facilitation’. Although, in essence, it may still be a negotiation between the peacekeepers and the local community leaders, with the aim of reaching agreement on a specific issue, the form it takes may end up being more akin to the peacekeepers chairing a large public meeting. However, we use the term ‘meeting facilitation’ to emphasise the fact that chairing in this context should not be confused with the control exercised by the chairperson of a boardroom-style meeting. In this context, the person at the head of the table manages the process with great sensitivity to all the constituencies present, and has to ensure that everybody who wishes to make a contribution is given the opportunity to do so. At the same time, they must subtly steer the discussion towards a conclusion, by frequently summarising progress and by identifying the major issues that need to be addressed, without overly dominating the process.
One problem that peacekeepers are likely to encounter is that it is difficult to accommodate all the views that may be expressed at such a public meeting. The skill of the facilitator lies in understanding which views represent popular sentiment and which don’t, and this will depend largely on the way the crowd, and respected leaders, react to the various contributions. One would also take into account subtle intimidation, where silence and indifference conveys a negative, but suppressed, reaction. Another challenge is that the counterparts that the peace operation expect to interact with may not be in place. For instance, during the African Mission in Sudan (AMIS) in Darfur, military observers met with the local community and expected that one of the people present would be the leader of the local women’s group. When such a person was not present, the peacekeepers expressed disappointment. At the next meeting, there was such a representative present, but the peacekeepers were now unsure if the person was there only to meet their expectation, or whether she really represented the women of the community. Further investigation revealed that there was no women’s association in the local community prior to the arrival of the peacekeepers, but that one was now being established because the expectation was raised by the peacekeepers.
The Right Approach
A mediator or conflict intervener needs many attributes to handle a mediation well. ‘Meta skills’ are the attitudes and personal skills that a mediator brings to the use of any tool or technique and, as such, are more important than any strategy or technique. Meta skills include attitudes such as compassion, neutrality and detachment.
Mediation in a Peace Mission?
Mediation is an advanced conflict management skill, but it can also be applied simply in daily life. This lesson presents a detailed approach – to start, concentrate on the core principles and fill in the details as you become more experienced.
Individuals and groups of people respond first to your meta skill, and only second to the strategy or technique. The same technique applied with different meta skills can have very different results.
You cannot simply be trained in meta skills. Rather, they develop over time through a process of awareness, inner work and growth and maturity.
The mediator has big eyes in order to assess body language, big ears in order to listen actively, a small mouth so as not to speak too much, and a large body to absorb criticism.
(J. Sachane, ACCORD)
Principles of Mediation
The following section outlines some of the key principles of mediation.
Advantages of Mediation
There are many advantages to using mediation where appropriate conditions exist.
The mediation abacus represents some of the variable features of mediation.
- Entry – parties should consent to mediation. However, sometimes pressure is put on parties to participate in a process, particularly if there are many parties and some of the smaller, less powerful parties are resistant to mediation.
- Choice of mediator – the parties should choose the mediator. If it is a complex conflict with a range of parties, the bigger, more powerful parties will tend to have more say.
- Qualifications – in a Western, business framework training and formal qualifications of the mediator are important. In a traditional community context age, experience and gender would often be considered more important.
- Independence – an ‘interested insider’ can have more commitment to seeing a conflict resolved, and thus be trusted to invest more in the process.
- Intervention – if parties are poorly educated in the negotiation process, or if emotions are very strong or the potential for violence is high, the mediator may play a much stronger interventionist role in the process.
- Outcomes – the parties should have control over the outcome of the mediation, but the mediator may play ‘agent of reality’ to assist in reaching a workable agreement.
- Confidentiality – is normally critical, for parties to trust the mediator and the process.
- Rules and procedures – confident, experienced mediators will be happy to allow the process to be responsive to the needs of the parties.
- Legal issues – a contract will be required to make a mediation settlement legally binding. In a peace mission, the law normally plays a very small role in the resolution of conflict.
- Past, present and future – the more contained a mediation can be, the greater chance of reaching agreement. If past issues need to be dealt with, however, the mediation will not be successful unless they are addressed.
Factors that influence the variables include:
- the resources of parties (time, funds, expertise);
- the degree of hostility between parties;
- the mediator’s experience and preferences;
- the bargaining strength of parties;
- the facilities/amenities available; and
- the needs and wishes of parties.
Peace Mission Mediation Examples
Most peace operations have been deployed to monitor some or other form of ceasefire, and the military observers and military commanders will commonly be involved in meetings between the parties to the conflict, to manage the implementation of the ceasefire.
This often occurs in a forum called a Joint Monitoring Commission (JMC) or a Joint Ceasefire Commission. At the national level, the JMC is usually chaired by the force commander, and at sector level by the sector commander or, in some cases, by the senior military observer in the sector.
These JMCs are, in a sense, an ongoing mediation forum in that you typically have two or more delegations representing the parties to the ceasefire agreement, and the peacekeepers as the mediators that facilitate the meeting and steer the parties to agreement.
Role of a Mediator
We have already said that a mediator is an acceptable, impartial and neutral third party in conflict negotiation. The mediator could play a variety of different roles and functions to assist parties to resolve the dispute. These roles include:
Becoming a Mediator
Is mediation an art or a science? Are you a born mediator, or can you learn to be one?
Can you grow from being an ineffective mediator to becoming a highly effective and sought after mediator?
The Keys to Growth
There are three important skill areas that will make you a good mediator:
- you should have knowledge of the theory and process of negotiation and mediation;
- you should have the mediation skills of planning, organisation, analysis, communication and intervention; and
- you should have the attitudes and personal approach for mediation, including an acceptance of its philosophy and ethics.
Becoming a really good mediator is a lifelong journey… one where you will slowly gain the experience, confidence and maturity that will make you a great mediator in whichever context you choose to work.
During a mediation, you will not necessarily announce the start of each phase of mediation to the parties. Rather, this framework is to give you (as a mediator) some internal reference point as to where you are in the process, and to ensure that you do not leave any important stages out.
There are four main phases in the mediation process:
- Phase 1: Preparation
- Phase 2: Opening the mediation
- Phase 3: The mediation process
- Phase 4: Closure and agreement
Community Dispute Mediation on a Peace Mission
It is not uncommon for peacekeepers to be called upon to mediate community disputes, especially in situations where there are no local authorities in place.
For instance, a UN Civil Affairs officer, a military observer or a military commander, e.g. a battalion commander, may be called upon to mediate a dispute between two villages or communities.
The amount of preparation that is done prior to the beginning of a mediation depends on the complexity of the mediation.
- Sometimes you may meet the parties for the first time and get information about the conflict at the first session – e.g. a marital mediation may begin with meeting the parties in a joint session.
- An international mediation, such as the 2003 Inter-Congolese Dialogue at Sun City, South Africa, where ACCORD acted as strategic advisors to the mediation team, will involve huge amounts of research and preparation.
In general, the more preparation done, the more likely the mediation is to succeed.
How do you prepare for a mediation?
- Understand the history of the conflict – what has happened, and to whom? Who has done what? What is the state of relationships between parties?
- List all of the parties to the conflict, and understand their roles with respect to the conflict, their influence over future decisions and potential settlement, their relationships with each other, and the balance of power between the parties. Decide how to manage those parties that will not actually be present in the mediation process. Think ahead.
- Analyse the root causes of the conflict.
- Understand where the key parties stand in relation to the upcoming mediation – what is their best alternative to the potential negotiated agreement (BATNA), and how much power will they thus leverage within the mediation process?
- Plan for entry into the mediation. What mediation strategy will be used? What role will the mediator play? What approach to negotiation will be encouraged? When and where should the mediation begin? What resources will be needed?
The recommended way for the mediator to enter the process is through a joint invitation of the parties. The mediator will still have to develop trust and educate the parties about the process, but the mediator’s entry into the dispute is not likely to be challenged.
In cases where one of the parties invites the mediator, or where the mediation is initiated by someone other than the disputing parties, the mediator will have to engage in much diplomacy and tact to get the agreement of the other parties, and will have to spend a lot of time educating the parties about the mediation process, and the role of the mediator.
Arrivals and Departures
Parties arriving at a mediation will be uncomfortable, nervous and possibly suspicious of the process that is about to start. Here are some guidelines to allay fears and create the best possible environment for the mediation.
- Plan in advance what is going to happen, so that you are not caught unawares, and have a contingency plan should anything not go as planned.
- Be early, and available to welcome parties in a calm and professional manner.
- Escort each party to a waiting area outside the room, and avoid any impression of having spent a significant amount of time with one party before the mediation begins. Have separate waiting areas if the parties have a history of hostility or destructive interaction.
- Take parties into the mediation area together.
- If there has been high emotion or tension in the mediation venue, or a history of violence between parties, allow them to leave separately. Allow the ‘victim’ or threatened party to leave the venue first, and give them enough time to depart before allowing the other party to leave.
Even after the mediation is established (multi-day mediations), follow the same procedures every time the parties meet.
Seating and Physical Space
The physical space arrangements of the mediation can be hugely symbolic, and much care should be taken with designing a seating plan. If there are a large number of parties or negotiators, or a high level of tension between parties, the seating plan may become an item for negotiation.
There are several key principles to bear in mind:
- each distinct party should have a separate and equal amount of physical space in the negotiation venue;
- the mediator should be equidistant from the parties, and nearest the door, to allow some control over access to and exit from the venue;
- in high-conflict disputes, negotiators should face the mediator; when there is more cooperation, the parties can face each other;
- seating parties across rectangular tables symbolises polarised, competitive behaviour; round tables dilute differences and make parties more collaborative; and
- if a party is fearful, they should be placed closer to the door.
It is possible to make minor adjustments to seating during a mediation (or during breaks) to reflect a shift in the process – e.g. to turn the negotiators to face each other more (and thus interact more directly) if they are making progress and are working better together.
It is important to establish mutually-agreed ground rules to guide the mediation process. Ground rules should focus on principles, process and the handling of emotions. They should be written up on a flipchart and displayed prominently in the room.
Here are some examples of ground rules:
- Joint commitment to the mediation process
- Respect for the mediator’s authority
- No interruption of speakers by the parties
- Cellphones off
- Time deadlines to be observed
- Refrain from using offensive words for other parties
- People should be allowed to say how they are feeling openly
- People will be allowed to take a break if they are finding the process emotionally overwhelming
It is important to facilitate the parties choosing their own ground rules – there are no objective standards that ground rules should meet. Parties are more likely to respect the rules if they have chosen them themselves, and are then publicly committed to them.
Remember that the parties may be highly suspicious of the mediator as they begin the mediation – you will have to establish trust with the parties.
Are the parties literate? Be careful of how you use written records of ground rules, agendas and agreements – people with strong oral traditions may be suspicious of such an approach.
No matter how much contact has occurred between parties and the mediator, a formal opening should be made by the mediator, to set the tone, explain what will happen in the mediation and establish trust. It should be under 10 minutes, and should include:
- commending the parties on the choice of mediation;
- reminding parties that they have freely chosen to be present;
- explaining the nature and objectives of mediation;
- explaining the approach to mediation and negotiation that is to be utilised in the session;
- clarifying the roles of the mediator and the parties;
- explaining that the mediator will act in a neutral and impartial manner;
- explaining the order of proceedings, and the possible use of separate sessions;
- proposing some basic ground rules or guidelines for the mediation, and soliciting others from the parties;
- reminding the parties that the mediation is confidential; and
- clarifying that the parties have the authority to settle the dispute, and any special conditions for the settlement/agreement.
Invite the parties to commit, or recommit, to the process as it has been outlined by the mediator – this will remind the parties of the voluntary nature of the process, and that they need to commit to the process for it to be successful.
Next, allow each party to make a short presentation. No interaction should be allowed – each speaker presents an uninterrupted dialogue. The mediator should limit the time allowed, so that other parties do not feel excluded, and they can be reassured that there will be time for a full airing of problems, and a detailed discussion of all points, later in the mediation.
How the mediator phrases the focus of the presentation will have an impact on what is said. Here are some options:
- “describe the facts of the event” – they are likely to narrate a self-justifying story;
- “state what you would like to achieve” – positional claims will be made; and
- “talk about concerns” – needs and interests that are important to the parties will be spoken about.
There are a number of options for responding to the presentations:
- don’t respond – move on to the agenda;
- the mediator summarises presentations – checks the accuracy of what was heard, acknowledges the emotion behind the content; or
- parties summarise each others’ opening presentations – this demonstrates that they are hearing each other.
Why Should Parties Make Presentations?
- To allow an unthreatening introduction to the mediation, where there is no opportunity to engage with and debate positions.
- To inform mediators about the nature of the dispute (if they haven’t previously researched the conflict).
- To construct a list of issues on which decisions are needed.
- To allow each side to state their problems in an emotionally safe environment.
- To allow some venting of emotion.
- To give disempowered parties the chance to hear their own voices, and build confidence within the parties.
There are no fixed rules on how to deal with these openings – or, in fact, with any stage of the mediation.
We give you these principles as a guide, but you will need to make an assessment of how tense the situation is, how ready the parties are for full openness in their dialogue, and how confrontational you can be as mediator. Building experience by practicing these skills is the key.
Setting the Agenda
Agreeing on an agenda may sometimes take longer than the actual negotiation itself, because this is where negotiation starts. In agenda setting, parties can begin to establish themselves in the negotiation process, and put emphasis on the issues that they feel are important. The agenda-setting process can thus be highly contested.
Decide up-front what approach you are going to use (sometimes the agenda may be agreed on before negotiations begin). Alternatively, select a couple of approaches, present them to the parties, and allow them to make a choice on how they want to go about setting the agenda.
Identify Areas of Agreement
The mediator should attempt to identify areas of agreement to get the mediation off to a good start, e.g. “We are all trying to stop the killing on the ground”; “The business partnership has been successful in the past”; “Both parties are trying to avoid a costly legal battle”.
This reminds highly conflicted parties that there is some common ground, and fosters a climate of consent.
Getting to Interests
When we discussed styles of negotiation, we said that an interest-based approach was the preferred approach to handling a conflict negotiation. The key principles of this approach are:
- PEOPLE: separate the people from the problem;
- INTERESTS: focus on interests, not positions;
- OPTIONS: generate a variety of possibilities before deciding what to do; and
- OBJECTIVE CRITERIA: insist that the result be based on some objective standard.
Getting to Interests
Getting to interests is not always a simple process. Parties sometimes hide their interests. You will need to become good at asking questions. For help in asking open questions, read the lesson on Communication.
Separate the People from the Issues
The Circle of Conflict shows us that relationship issues are only one kind of root cause of a conflict. It would be very unlikely for a conflict to be only about relationships deteriorating – there are normally additional reasons behind this.
But conflicts and their resolution have to be filtered through a ‘people interface’. Separating the people from the problem means dealing with the relationship issues separately from the root causes of the conflict. This is not always easy, however, particularly in a communal context where people are not used to thinking of people and issues separately. Bear in mind that the principle behind this is to maintain and build relationships between the parties, while still addressing the concerns that divide them.
The African principle of ubuntu is about being people-centred – African, and indeed many traditional approaches to conflict resolution, promote integration and healing above justice and retribution. The ‘separate the people’ principle suggests that we promote harmony and healing while, at the same time, being ‘hard’ on the problems or issues we are facing that have brought the parties into conflict.
Start thinking about closure – what kind of agreement you would like – from the very beginning. It may also be preferable to prepare a draft agreement in advance, which you can keep modifying as negotiations progress.
Shift from Positions to Interests
Interest-based negotiation is about getting to the interests behind the positions, and coming up with creative, broad-based solutions that meet as many diverse interests as possible. As a mediator, how can you help the parties put forward their own interests, and understand each others’ interests?
Ask ‘Why?’ and ‘Why Not?’
Sometimes getting to interests is as simple as asking. Be careful to frame this asking as a request for further information, and not as an attack or criticism.
When the parties put forward a position, ask them why they have put forward this position, and what it is that they need. If their answer appears to have underlying interests, keep asking the question, to get a deeper understanding of their needs and interests.
The other side of this is to ask ‘why not?’. If a party rejects a proposal or request from another party, ask how that proposal negates their needs – what would they need to have their interests met?
The Communication lesson of this online course provides you with a number of communication skills to improve your ability to listen to and understand the parties, see different perspectives and separate data from interpretation.
You may wish to share some of these skills with the parties.
Joint Conflict Analysis
An approach you can consider is to introduce a training element to the mediation. Suggest the parties jointly analyse the conflict, and that the insights gained from the process will be helpful in bringing resolution to this conflict.
Take the parties through the parties’ analysis and the Circle of Conflict. Pay special attention to what parties list as structural, interest and value conflict, and what different perspectives come out between the parties.
Generating Options for Settlement
Most often, negotiation seems to come down to splitting a small cake – and there’s never enough cake to go around. You have managed to assist the parties to get to an understanding of the interests behind their positions – now your task is to help them to generate a broad range of creative options for settlement, and to assess how well these options meet the needs of the parties.
You need to create a range of options for settlement, taking into account the interests raised by the parties. Here are some recommendations for using brainstorming in a mediation process:
- clarify purpose – decide what you wish the parties to get out of the session;
- few participants – too many people can derail this process; under 10 is a good number. Suggest that the parties select representatives for the brainstorming session;
- change environment – a new physical space will make a statement about new ideas, and help to suspend judgement. Any place that creates a relaxed, happy environment will assist a move away from structured thinking to a creative, right brain approach;
- record – write down all ideas, in full view of everyone;
- off the wall – encourage creative, unusual, ‘out of the box’ thinking. Even seemingly ridiculous ideas can lead to, or be developed into, highly useful ones; and
- no criticism – strongly enforce the no criticism approach. You are gathered to generate ideas, not break them down; don’t start evaluating or grouping ideas until you’ve finished generating them.
After completing the brainstorming session, you will probably have a huge range of ideas – from the conservative to the wild, from the achievable to the ridiculous. Circle the best ideas, and consider if it may be appropriate to group some ideas with others. Start to discuss how the ideas can be worked into settlement options. It can be a good idea to bracket ideas – to develop stronger and weaker versions of the same idea – to counter possible responses from the rest of the negotiation teams. To facilitate the brainstorming process, make it clear that all proposals are tentative, and that discussion of an option in no way indicates commitment to that position.
Separate meetings between the mediator and the parties on their own can be a highly effective tool in mediation. Some mediators view the separate meetings as the most important feature of mediation, but there are a number of concerns to bear in mind that could jeopardise the process.
Purpose of Separate Meetings
- To allow parties to raise issues they would be uncomfortable raising in the joint sessions.
- To allow space for venting of emotions with the mediator, without jeopardising the main negotiation process.
- To allow for the mediator to probe parties’ bottom lines, BATNAs and hidden agendas.
- To create an opportunity for the mediator to coach parties in communication and negotiation techniques.
- To provide space for the mediator to ‘reality check’ with parties, and apply more pressure for settlement than would be possible in the joint sessions.
Timing and Circumstance of Separate Meetings
- Before mediation starts – in the process of researching the conflict and preparing for the mediation.
- Early in mediation – to probe for extra concerns and issues that haven’t been raised.
- At deadlock or breakdown – to change the dynamics of the negotiation, and analyse problems with each party separately.
- If one party has become disempowered or another party is dominating, and it can’t be resolved in the joint sessions.
- To create a risk-free environment for generating settlement options.
- When parties are showing a shortcoming in negotiating skills.
- If requested by the parties.
Pitfalls and Concerns About Separate Meetings
- The power of the mediator is considerably enhanced – this may detract from the parties making their own decisions. Mediators must be very careful with their exercise of power and control.
- Can engender suspicion about what the mediator is saying to the other parties, and threaten principles of neutrality and impartiality.
- Mediators may be influenced by parties in the separate sessions.
- May be an inadvertent breach of confidentiality by mediators, because not enough note is made of what is said in private and communal sessions.
- Too many separate sessions will enhance the divisions and separateness between the parties.
Safeguards for Separate Sessions
- Equality should be maintained – always meet with all parties, and for the same length of time.
- Separate sessions should be kept relatively brief.
- Reassure participants that the sessions are confidential.
- Give the other party some kind of task to perform, while the separate sessions are underway.
- Avoid any kind of hint, on return to the joint sessions, of any developments or decisions from the separate sessions, as this could compromise confidentiality.
A climate report can be very useful to bring awareness to the group as a whole, on where the mediation process is at that point. It recognises and validates all positions.
Why Climate Report?
The climate report does not interpret, but comments on and recognises what is happening in the room. It helps to bring awareness to the process, and clarity to the parties.
When to Climate Report
- If there are many different views in the room, and it has become confusing for the parties.
- If some perspectives are being put down and not heard.
- If the parties are cycling – that is, going around in circles and repeating the same issues or perspectives.
- If parties are locked in a polarised/adversarial position.
How to Climate Report
- Stop the mediation process, and suggest that you give a round-up of where the process is, and what is being said.
- Summarise and cluster the roles/perspectives in the room – present the full range of issues on the table.
- Focus on data – don’t add your interpretations.
- Ask the group if there are any other issues that have not been recognised or noted.
The climate report must be done from a neutral position, so that all perspectives or views feel recognised, and the mediator is not seen as validating certain views and repressing others.
By bringing awareness to the mediation process, it will help parties to gain perspective and enable them to decide how to proceed in a more constructive manner.
Helping Parties to Make Offers
Mediators often help parties to make offers that will be acceptable to the other side. There are some elements to keep in mind when facilitating this process.
- Prepare the party making the offer to restate all parties’ interests (with the others’ first), present a proposal, and identify how it is mutually beneficial: “You need… and what I need…”
- Help the party to decide when the best time is to make the offer. Prevent premature offers, or offers that are too late, after damage has occurred to the relationship.
- Help the party to present a worst-case settlement offer first, then present a more favourable offer. Contrasting an unacceptable offer with a more acceptable one makes the latter offer look more favourable.
- Assist the parties to make contingent offers: “If you give me this, then I’ll give you what you want.”
- Help a party make an offer that involves a risk for themselves. Risk taking by one party often induces the other also to take risks.
- Help a party to decide who, in a multiperson team, should make the offer, and to whom the offer should be made. Multiperson parties may have members who are either more or less responsive to offers made by the other side.
- Test out a party’s offer in the caucus before it is made in the joint session. A variation is for the mediator to claim the offer as his or her own idea, so that it is not tainted by its source or prematurely identified as a proposal from the other side.
- Help a party to be psychologically prepared to accept an offer from the other side. Discussing feelings, raising doubt about positions and discussing possible settlement options can all prepare a party to accept another’s offer.
- Allow parties to present only offers that have previously been identified in the caucus as being mutually acceptable.
- Make an offer for a party to ‘save face’ or control destructive behaviour.
The purpose of entering into a mediation process is to reach an agreement. This is the agreed outcome of the process, and a way forward for implementing the agreement. For an agreement to hold, it needs to be a strong agreement.
Writing an Agreement
Agreements should be written down (if appropriate), as this:
- clarifies points on which the parties agree, and defines what has been agreed;
- is a permanent record of the settlement;
- defines what is required in future; and
- creates standards by which compliance with the agreement can be measured.
Settlement agreements are usually written by one or more of:
- one of the parties;
- the parties in joint session (or a sub-committee of the parties);
- the mediator or facilitator (with or without the public recorder); or
- the lawyers of the parties.
One Text Procedure
In a classical positional bargaining situation, the parties have separate sets of proposals. As the proposals get ‘traded off’ against each other, the parties become more entrenched, and their differences get accentuated. The mediation can also become highly complex, and can deadlock easily. The ‘One Text’ approach to mediation is a different approach, which can be very useful in a complex mediation context.
The One Text procedure combines the parties’ needs and interests into one proposal, which the parties can jointly attack, modify, develop and finally own. How does it work?
Step 1: Find Out All You Can About Needs and Interests
Ask about the parties’ interests – what they want or need. Make it clear that you are not asking either party to give up a position; rather, you are exploring the possibility that you may be able to make a recommendation to them.
A land claim advisor is called in to resolve a dispute between a rural community (victims of forced removals) and the land’s current owner.
The advisor asks about both parties’ needs and interests. What they want to do with the land, and how much land is needed for farming activity? How much access is needed to water? Why do they need access to roads – what kinds of vehicles will need to get in and out? What are their concerns about security, and what will they need to protect against?
At this stage, the advisor is exploring the possibility that she might be able to make a proposal, but even that is uncertain; rather, she is just trying to understand their needs and interests.
Step 2: Criticise the List
Develop a list of the wants and needs of the parties, and ask them to criticise the list. It’s hard to make concessions on positions, but easy to criticise.
The advisor returns with a full list of needs and interests, which she puts forward for criticism by the parties… security on the farms, access to water, stability of relations between the returning community and existing labour force on the farm, the hectares needed for cattle rearing, etc.
Step 3: Draft Proposal
Taking into account the amended list of interests, present the parties with a draft proposal on how to meet the interests that have been listed. Acknowledge that it has severe shortcomings, and invite criticism and amendment. No-one’s ego is tied to the proposals and, instead of being forced to abandon positions, the parties now work jointly on one proposal that can be presented back to them by the mediator.
A week later, the advisor returns with a rough plan for the partitioning of the land, some proposals for how to manage water, security and transport on the land, and some initial figures for what kind of payout the existing owner could expect for the land he is selling.
She might say, “Personally, I am dissatisfied with this plan, but I thought before working on it further, I would get your criticisms.” The parties are invited to critique the plan and make adjustments.
Step 4: Proposal Revisions
Take into account the criticisms and amend the proposal, bringing it back for further rounds of criticism and adjustments.
Step 5: Final Proposal
When the proposals have been through many cycles of revision, the mediator then presents it to the parties as their best effort.
After a number of rounds of proposals and critiques, the list of changes will have shortened. Finally, when she feels she can improve the plan no further, the advisor says, “This is our best option. I have tried to reconcile all of the interests that have been brought to me, as best I can. Many of the issues I have resolved using standard agricultural planning, legal precedent and the accumulated experience of our land claims programme throughout the rest of the country. This is the best I can do, and I recommend that you accept this plan.”
The parties then only have one decision to make: ‘yes’ or ‘no’. In making that decision, they know exactly what they are going to get, and what is contained in the proposal.
One Text and Multiparty Mediations
As a technique for limiting the number of decisions, reducing the uncertainty of each decision and preventing the parties from getting locked into positions, this approach works very well.
It is a great help for negotiations involving two parties and a mediator. It is almost essential for large multilateral negotiations: 30 countries cannot constructively discuss 30 different proposals – there needs to be some way to simplify the decision making process.
You do not need anyone’s consent to start using a One Text procedure, simply prepare a draft and ask for criticism.
For large-scale mediations, in particular, co-mediation (two or more mediators) offers many advantages. Co-mediation, however, challenges the mediators to understand each other, prepare well, and be highly aware of how they are working together and what their effect is on the parties.
- Division of labour – the different roles of mediation can be shared, e.g. chairing sessions, note taking, listening, supporting parties under attack.
- Skills and expertise – multiple mediators bring a range of skills to the table, e.g. language ability, cultural understanding, therapeutic skills, specialist or subject knowledge, mediation experience.
- More ‘eyes and ears’ – the mediators can be more observant of the different messages and dynamics, particularly in large groups.
- Fatigue – mediation is an exhausting process; co-mediators can cover for each other and balance each others’ natural energy flow.
- Positive modelling – multiple mediators can model problem solving, listening, constructive communication, negotiation and respect for the parties. This suggests that these processes should be made overt between the mediators.
- Debriefing and support – mediators can support each others’ debrief, provide a safe environment for the release of emotion, and monitor each others’ loss of neutrality and impartiality.
- Training – a junior mediator can be mentored and supported by a senior mediator in the practice of mediation.
- Negative modelling – if mediators handle conflict between themselves poorly, it will perpetuate further conflict within the group.
- Manipulation – mediators have to be highly aware of the potential for parties to play themselves off against each other.
- Ethics – multiple mediators can consciously, or unconsciously (through a bad cop/good cop routine), use their power to manipulate parties into concessions or settlements.
Co-mediation requires careful planning and extra preparation. The following should be taken into account:
- How will roles and responsibilities be shared?
- When, and for what reasons, should the process be stopped for the mediators to hold a separate meeting, if necessary?
- How will stressful or unexpected situations be handled?
- Under what conditions should mediation be terminated?
- How will the mediators communicate – without the knowledge of the parties, if necessary?
- How will a dangerous or potentially threatening situation be handled?
- How will the other mediator handle it if they feel that their partner has done something wrong or acted inappropriately?