2nd part of Thesis
Negotiating - theory and practicePosted by Mikkel Gudsøe Sunday, October 28 2007 10:08:30I hereby post you the second part of the excerpts of the Thesis written by Stephan Christophersen.
Please enjoy the reading.
Best regards
Mikkel Gudsøe
Common Traits of Non-Binding Intervention by Third Parties:
By Stephan Christophersen
Subject to protection by the relevant copyright laws and all rights are reserved.
Non-binding third party intervention in conflicts covers the process where the parties in conflict acquire the assistance of a third party that does not have the authority to render a decision that will be binding on the parties. The parties can give the third party that authority during the process, but that will change its role to arbitrator. Since there are not the same system and the same procedural rules to be followed as there are e.g. in trials at court or in arbitration, there is more flexibility in this third party process. This provides for a greater ability to adapt to the specific needs of the parties and the situation at hand[1]. This will generally also help to produce more stable agreements, since the parties themselves are involved in the decision-making process.
Even though some individuals argue that say that there is no such thing as a neutral third party[2], the third party is usually one who is capable of being neutral regarding the outcome of the conflict[3]. A third party who is not neutral can be interested in swaying the negotiations to his own advantage at the expense of the parties. Neutrality, on the other hand, will ensure that his own interests will not be a hindrance to helping the parties reach an agreement that is beneficial to them. Ability to be neutral or not, the important thing – which is also the result of neutrality – is that the third party has “…the ability to reach out, use subjectivity, and deepen empathy and honesty between adversaries.[4]” This provides the parties with a basis upon which a relationship of trust can be established.
Furthermore, the third party must be impartial. Impartiality means that he will not side with any of the parties, and it gives the assurance that his assistance will not be unreasonably beneficial to one of the parties at the expense of the other party. Together with neutrality, impartiality will ensure the unbiased approach of the third party.
It has been said that in order for such a process to be effective, the parties have to be ready for it before it begins. This means that the intervener has work to do before the actual meetings with the parties take place. If the parties are not ready for it, he has to make them ready[5]. This must not be confused with trying to manipulate the outcome of the future meetings or the parties’ positions. It is only the work that is necessary to make sure that the parties are ready for the process. This is especially necessary in a situation where one or more of the parties may be expected to walk out of the meetings. They can do so because the process is voluntary. Or, assurances have to be given if one of the parties has doubts as to the probability of a successful outcome or the intentions of the other side. So, the consent of each of the parties must be attained before the actual process can begin. And sometimes, this requires active preparation of the parties.
Third party intervention is also a way of securing the interests of groups that are hard to represent, like future generations. The parties may be too concerned with their own, immediate interests to think of these groups, but the distance to the conflict enables the third party to go beyond the parties’ interests and also take those of other relevant groups into consideration[6].
It has been said of the mediator that some of the tasks that he generally has to carry out include making sure that the contending parties carry on a constructive dialogue, that hostilities are scaled down, an amicable solution is achieved, and that tension is reduced while the pacific relations created between the parties do not turn into hostility again[7]. But this is true for all of the approaches. Sometimes, it may not be necessary. But the third party has to be able to evaluate what kind of conflict he is dealing with and how far along the continuum of conflict escalation the conflict has evolved – from differences of opinion to hostility and polarization – in order to best adapt his approach.
Each conflict can warrant specific approaches and he has to be able to choose the most suitable one.
[1] William P. Smith, in “Negotiation Theory And Practice”, p. 402.
[2] See e.g. Kenneth Cloke, “Mediating Dangerously”, pp. 12-13.
[3] See e.g. Lon F. Fuller in “Mediation Theory and Practice”, p. 151, or Joseph Stuhlberg, ibid, p. 162.
[4] Kenneth Cloke, “Mediating Dangerously”, p. 14.
[5] “…there must be a substantial investment in quiet diplomacy… before deals can be cut.”, “The Peace Process”, William B. Quandt, p. 385.
[6] Breslin and Rubin, “Effectiveness of the Biased Mediator” in “Negotiation Theory and Practice”, p. 409.
[7] See also “Handbook on the peaceful settlement of disputes between states”, p. 41 and an early reference to this line of thought in the Hague Conventions of 1899 and 1907, common art 4.
