3rd part of Thesis by Stephan Christophersen
Negotiating - theory and practicePosted by Mikkel Gudsøe Sunday, November 11 2007 18:45:42Mediation:
The general goal of the mediation process is to assist the conflicting parties in negotiating a viable solution to the dispute. In order to help the parties negotiate and achieve this goal, the mediator needs to get to the core of the dispute, which is each side’s underlying interests, concerns, desires, fears, and aspirations, and help the parties meet these interests 1). There are several approaches that the mediator can rely on. The choice of approach will often depend on the parties’ wishes, the matter at hand, and the personality and personal style of the mediator. Leonard L. Riskin sets out two different approaches to mediation. He distinguishes between the directive and the facilitative mediator 2). Both of these types of mediators can have a broad or a narrow definition of the problem.
The directive mediator listens to the conflicting parties, asks questions to know more about the matters at hand and the parties’ interests and wants, and makes a qualitative evaluation of the case. It can be based on law or just the non-legal issues that he has been made aware of. He then tries to turn the parties’ attention to the outcome that, in his opinion, best serves the parties. He does this either by cunningly persuading them or by laying out on the table the way he sees the issues and the best available outcome.
The facilitative mediator lets the parties decide what outcome they should work towards. To help them find this solution, he will ask them a lot of questions to get deep into their underlying interests and aspirations. This will help him to get the parties to see for themselves the best solution to their problems, thus enabling them to choose that solution themselves. He will not tell them his own opinion about the best outcome. The facilitative approach compares better with the general view of the mediator that suggests that he should not interfere with the solution to the problem; that only the parties can decide how the conflict should be resolved. Here, the mediator does not suggest a solution, unless asked to do so by the parties. What this kind of mediator is most concerned with is the process of getting the parties to make the decision themselves. He focuses on the parties as persons and on the process that leads to a result.
The difference between the facilitative and the directive mediator, then, lies mostly in the intensity of involvement in the outcome of the conflict, but the focus of each approach rests chiefly on the outcome.
If the mediator takes on a broad definition of the problem, he sees the different issues of the conflict in the light of the surrounding circumstances and the impact that the different outcomes would have on those circumstances. So, he is also concerned with the broader scope and not only the two parties. The conflict – and the resolution of it – may have an impact on other people and other issues of importance. In a divorce-mediation it may be the children. In an international mediation it may be countries surrounding the contending parties, regional interests, or the international community as a whole. The mediator will then work with the parties in light of these circumstances. The problem at hand is defined as involving more than just the parties.
The narrow problem definition is used when the mediator’s focus is only directed towards the parties in the conflict and their interests and not so much towards the surrounding issues. These other issues do not have a substantial impact on the way the conflict is resolved or on the outcome itself. The problem is defined as involving only the parties.
Another view of mediation, the transformative approach 3), suggests producing recognition and empowerment of the parties. Recognition refers to the fact that the other party to the conflict also is human and deserves to be listened to, which, in turn, can provide a new understanding for the listening party. Communication becomes more efficient now, as well as in future potential conflicts, where the parties’ ability to resolve their own conflicts have, supposedly, been transformed into a higher degree of efficiency. Empowerment has to do with the freedom of the parties to settle the matter without being bound by outside authorities and the responsibility to find a solution that lies within their own power to effectuate 4). According to this approach, the mediator does not need to push for an agreement, since the parties are empowered to do so themselves. The achievement of a solution is not the goal of this approach. If the parties choose not to resolve the conflict, that is also their right as free entities. Therefore, impartiality becomes a must for the mediator. He must be visibly even-handed or two-sided.
Conciliation:
Another way to act as a third party is to use shuttle diplomacy, which is characterized by the fact that the parties are not ready to meet with one another. The mediator then has to go back and forth between them to make progress first in separate meetings with each side 5). He will then act as a messenger bringing the positions of each party to the attention of the other and helping each side understand what the other is really saying or asking for and to not draw uninformed conclusions. If the parties will not – or cannot – meet, maybe the mediator will be successful at resolving the case without the parties meeting.
Shuttle diplomacy can be carried out with actual meetings where the third party meets with the parties face to face. This can provide the third party with a better sense of each party’s positions and interests. But it can also be done through other means of communication. The telephone is efficient for shuttle diplomacy, especially if the parties are far apart and traveling is not an easy option. This is efficient to resolve matters quickly and get answers to questions right away. Moreover, the internet provides an online connection between the parties, either via email or with webcams. But, as is true for all human interaction, a person’s voice can reveal a lot about his intentions and the true meaning of what he is saying. Even more so the body language 5). Emailing will not help the third party use these valuable tools of interpretation, and miscommunication and misunderstanding are genuine risks.
The conciliator will not interfere with the negotiations when the shuttle diplomacy is over. Once the parties have agreed to meet – and actually do so – his job is over, at least in that function. But he may still have to shuttle between the parties if they reach an impasse in the negotiations or otherwise find it difficult to continue talking face to face. He can then hold separate meetings with the parties – called caucuses – where he will try to get them back on track by talking to them individually. Or, he will have to start all over and try to bring them back together again. Minor issues may be dealt with in caucuses. Issues of greater importance may need to be addressed in actual face to face negotiations between the parties.
Facilitation:
Another approach is facilitation. To facilitate means to make easier 6). The facilitator will provide process leadership and process expertise 7) and will “… help a group improve how it identifies and solves problems and makes decisions to increase the group’s effectiveness. 8)” The aim of facilitation, therefore, is to make sure that the process is effective.
Facilitation can also be used in a conflict situation where two or more parties need a third party to help them through the process of meeting each other and negotiating about the matter at hand. Thus, it resembles what is meant by the “good offices” of the UN Secretary-General. As the facilitator remains a person with no substantive decision-making authority, the group that the facilitator is working with will keep the responsibility for solving its problems. The facilitator just helps them with the process of identifying, but not solving, the problems.
Two different approaches for the facilitator need mentioning here. It is basic facilitation and developmental facilitation 9). Employing the basic form, the facilitator only helps the parties to solve the problem at hand. The focus is on what the problem seems to be at the time of the process. With the developmental approach, he also teaches them how to improve the process themselves so that they can work with a more effective process the next time a problem occurs. This removes the facilitator from the picture, since there will no longer be a need for his assistance. The parties have actually been empowered to handle conflicts by themselves. With the developmental facilitation approach, the parties will learn how to interact together in a way that will create results. With these tools, the role of a third party may be to only help the parties get started and stay in the process. The dialogue itself may eliminate the need for a third party altogether 10). Which approach the facilitator works with, depends entirely on the parties’ choice. In practice, the facilitator moves on a continuum from purely basic to purely developmental facilitation. A good facilitator, then, needs to be able to make use of both approached 11).
Reconciliation:
After conflict resolution, the work to achieve a lasting peace is not over. This is so, at least, when it comes to protracted conflicts that are rooted in attitudes and perceptions that have shaped the parties’ positions over a long period of time, where issues are non-negotiable and deal with identity and integritym 12). Conflict resolution, understood as the ending of immediate fighting or contention and the signing of peace agreements, must be followed by reconciliation before peace, justice, and security can prevail 13). Reconciliation is the restoring of “friendship and harmony between the rival sides after conflict resolution or transforming relations of hostility and resentment to friendly and harmonious ones 14)”. One object of reconciliation is to change the “motivations, goals, beliefs, attitudes, and emotions of… the society members regarding the conflict, the nature of the relationship between the parties, and the parties themselves 15)”.
Widely shared beliefs in a society can form a basis for a collective emotional orientation, which, in turn, becomes a central part of the societal ethos. Therefore, reconciliation is not only a peace between the leaders of the conflicting groups but between the societies. It also involves a new version of what has happened in the past to create the conflict and who was at fault. There are most often two sides to the story, but each side has to let go of its perceived right to blame the other and engage with the other side to create a new version of the facts together.
Reconciliation also requires an acceptance of the identity of the other party. In fact, an important side to reconciliation is that the parties have to remove from their thinking the negation of the other party’s existence and identity and that the parties include each other in their respective moral communities, meaning that dealing with that party no longer is unthinkable and a relationship of interactional dealings can arise between the parties 16). It is an informal societal-cultural process that encompasses the majority of society members, and it requires mutual fundamental understanding, recognition, and legitimization. If mutual respect and even appreciation can be achieved, we are even closer to long-term viable reconciliation and peaceful co-existence.
In other words, the goal of reconciliation is to make sure that the conflict does not arise again. The third party working with reconciliation therefore digs deep into the mold of the strained relationship between the conflicting parties and helps them move on after the resolution of the conflict.
So, reconciliation also has to do with change. These are changes that most often will begin to take place before conflict resolution 17). It is in fact a way to better achieve resolution of the conflict 18). In some cases, it can be a prerequisite for peaceful conflict resolution, because the parties’ beliefs and motivations have to change before they can meet each other to try to resolve the conflict 19). But, even though it may be necessary, this would only be partial reconciliation; true reconciliation can only happen after the resolution.
[1] William Ury, “The Third Side”, p. 146.
[2] Riskind first called the approaches “evaluative” and “facilitative”. Later, he changed it to “directive and “elicitative”. The substance behind the terms remains the same. For purposes of this thesis, I have chosen to use the terms “directive” and “facilitative” as it will help the reader understand the overlap with facilitation.
[3] See Robert A. Baruch Bush and Joseph P. Folger, “The Promise of Mediation: The Transformative Approach to Mediation”, 2005.
[4] Bush and Folger in “Mediation Theory and Practice”, p. 193.
[5] See e.g. William Ury, “The Third Side”, p. 147.
[6] See appendix 2 about the importance of body language.
[7] Webster’s New Collegiate Dictionary.
[8] Janice M. Fleischer and Zena D. Zumeta, “Preventing Conflict through Facilitation”, December 1999.
[9] Roger Schwartz, “The Skilled Facilitator”, p. 5.
[10] Roger Schwartz, “The Skilled Facilitator”, p. 8.
[11] Catherine Tinker, “Dispute Resolution and International Law: The UN Dialogue Among Civilizations” , p. 31.
[12] Roger Schwartz, “The Skilled Facilitator”, p. 50.
[13] Tamar Hermann in “From Conflict Resolution to Reconciliation”, pp. 49-50.
[14] Jimmy Carter, “Palestine – Peace not Apartheid”, p. 67.
[15] Bar-Siman-Tov in “From Conflict Resolution to Reconciliation”, p. 4.
[16] Bar-Tal and Gemma Bennink in “From Conflict Resolution to Reconciliation”, p. 12.
[17] Herbert C. Kelman in “From Conflict Resolution to Reconciliation”, p. 119 and p. 122.
[18] Bar-Simon-Tav in “From Conflict Resolution to Reconciliation”, p. 72.
[19] Bar-Tal and Bennink in “From Conflict Resolution to Reconciliation”, p. 26.
[20] See i.a. Herbert C. Kelman in ”From Conflict Resolution to Reconciliation”, p. 112.
