CMRAI-C9: Mediation §

Class: IS404 Created Time: December 18, 2021 12:56 PM Database: Class Notes Database Last Edited Time: December 28, 2021 3:22 PM Type: Lecture

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Introduction §

• Although there are many forms of mediation, in general, it is widely known for “neutral” third-party assistance in reaching settlement.
• Theoretically, an intermediary intervention in the negotiation process is not supposed to be authoritative in the sense that mediators do not make rulings or impose an agreement.
• Thus, mediation can be characterized as “a form of assisted negotiation” or at least is seen as “a catalyst for negotiation” (Touval and Zartman, 2001, p. 442).
• Being motivated for settlement is essential to any successful mediation not only because consent to a mediation process is voluntary but also because the disputants make final decisions on the issue.

Attributes of Mediation §

• In a classic definition, mediation is regarded as a process whereby a neutral third party, acceptable to all disputants, facilitates communication that enables parties to reach a negotiated settlement.
  • The assistance process helps the parties arrive at an agreement voluntarily without resorting to physical force, not invoking the authority of law.
  • The most important function of a mediator is the creation of an atmosphere conducive for negotiation by the facilitation of communication that leads to loosening tensions.
  • The third party would create good faith and confidence in reaching reasonable compromises by aiding their communication.
• An external agent utilizes their experience and expertise in controlling fear and reducing the stereotypes and prejudices of the disputants in tandem with the supply of alternative and additional information.
• Parties are allowed to express their concerns and feelings directly or indirectly at meetings organized by mediators.
• An impartial third party ****has no authoritative decision-making power since the disputants are supposed to be the major players.
• Both the process and outcome should be acceptable to the participants in that mediation is based on consent.
  • In order to reach an agreement, intermediary activities may generally entail defining the areas of contention, making recommendations, and formulating mutually acceptable solutions, while endeavoring to open new possibilities.
• Given that mediation is not an institutionalized process (like arbitration or other forms of adjudication), in general, formal rules or standard procedures do not exist.

Communication Links §

• The major mediation function is the strategic adoption of skills to keep the communication flow balanced, fair, and productive (McCorkle and Reese, 2005).
• The most important task is to open contact, carry messages, and clarify meanings.
• A mediator’s job is to identify concerns that each party does not want to reveal openly.
• Part of communication activities is supported by the supply of missing information and the development of a rapport.
• The areas of agreement and disagreement can be discovered by open and sincere communication in a brainstorming process.
• Separate caucus sessions with each disputant are used in control or management of emotions.
• The chances of compromise are increased by more accurate assessment of each other’s positions.

Motivations §

• The adversaries should believe that they need to rely on mutual cooperation to satisfy their interests in tandem with the realization that coercive approaches produce only a backlash by nourishing further resentment and retaliation.
• Each party might feel the necessity for a joint decisionmaking process through facilitation after they experience a deadlock derived from polarization in goals, methods, values, and perceptions.
• In accepting mediation, each party may think that the intermediary can help influence the other party’s positions.
• Higher expectations about an outcome agreeable to both sides are more likely to lead to more serious talks.

Roles and Functions of Intermediaries §

• As mediation is a continuing means of negotiation, a mediator should have
  • communication skills
  • competence to manage adversarial relationships in order to reach an agreement
• As a channel of simple message delivery, a mediator might confine their role to the
  • interpretation and transmission of ideas.
  • In keeping negotiation going, a mediator can serve as a buffer as well as maintaining communication.
  • By transmitting information about possible needs and interests, a mediator assists partisans in expressing their concerns and identifying the specific needs that must be addressed.
• In general, mediator qualities are comprised of credibility (being trusted and respected) and empathy (related to both the feelings and ideas of the parties).
• A mediator develops rapport, meeting with the parties separately for a caucus.
• The communication function is geared toward helping the adversaries not lose face or look weak.

Triadic Dynamics §

• A triangular relationship is created by a mediator’s role to bridge the two sides.
• A mediator’s assumptions and biases as well as their own interests can result in favoring one of the parties.
  • The mediator’s impartiality is likely to be considered less important to the adversaries’ decision to accept mediation if it is not a matter of choice but of necessity (for instance, after military setbacks, etc.).
• Neutrality does not necessarily mean the maintenance of an unbiased position by a mediator on every issue if a mediator can bring an effective end to the fighting desired by all sides.
  • As long as a mediator is believed to produce the outcome desired by all the parties, some latitude of partiality is regarded as acceptable.
• A mediator can have more leverage if disputants have a high expectation about an outcome and are offered future financial or political support.
• In 1979, the US government pressed for the Egyptian and Israeli governments to accept a negotiated deal along with its promise to provide aid.
• A mediator may maintain leverage by employing such means as military aid, a UN vote, diplomatic support, better future relations, and an economic down payment.
• Powerful mediators have resources to withhold or prevent an outcome desirable for one of the parties.

Diverse Modes of Mediation §

• Reflecting on different degrees of intervention:
  1. mediation can be limited purely to the support of communication with a mediator serving as a keeper of ground rules.
     • In general, mediation (confined to communication support) generates low expectations about the outcome; bringing parties to the negotiating table itself becomes an important intermediary objective.
  2. Others may take more expanded roles by suggesting alternatives or getting involved in content-related issues beyond delivering proposals.
  3. The most active mediators are even willing to guarantee the implementation of the agreement (e.g., Israel–Egypt settlement) by putting their own resources on the table.
• The functions of good offices perform a channel of communication along with the interpretation and transmission of ideas.
• If their functions are limited to organizing meetings, keeping records, and providing clarity in communication, a third party is mostly concerned with a process of identifying topics to be addressed rather than shaping the actual content.
• Resolving highly intensive conflict can benefit from more active participation of an intermediary in the injection of new ideas about the nature and methods of ending hostilities.
• Mediators may make suggestions or offer advice about possible outcomes related to each party’s concerns even though the ideas for solutions can be generated by the parties.
• An effective mediator shares their ideas about the situations with the parties in identifying the areas of agreement.
• Alternative suggestions can be based on the discovery of each party’s bottom line.

1. From Less to More Directive Mediation §

• In their most basic functions, mediators can be limited to passively transmitting ideas without any investment in the mediation’s outcome.
  • The less directive form of intervention is limited to message deliveries via shuttle diplomacy; chairing meetings or clarifying issues in formal mediation sessions.
• On the other extreme, mediators can be highly directive with the authority to control and direct the actions of the parties (although a directive mediator role still requires the cooperation of the parties).
  • More directive mediators may even decide acceptable settlement terms beyond generating and sharing information while changing the way parties interact.
  • In a muscle mediation designed to break an impasse, directive approaches involve a push for a particular option; a strong leverage by mediators and their allies helps more forceful mediation.
    • In putting pressure on the parties to accept a proposed settlement or make concessions, each mediator has a different leverage.
  • In a more directive approach, a full gamut of influence includes reward, persuasion, legitimacy, and information sharing as well as the threat of sanctions.

2. Intervention Strategies §

• In order to induce cooperation, a mediator may utilize the strategies of persuasion, compensation, and pressure.
• In changing the perceptions of the parties, the effectiveness of persuasion depends on the appeal to the needs, tangible and intangible, to be satisfied.
• While reward can be made to compensate for concessions, it may be combined with forceful, pressing tactics.
• The threat of cessation of mediation may be adopted as a tactic to push for agreement when an intermediary feels frustrated with each party entrenched in their positions.
• The success of the mediator’s threat to quit depends on the fear of being blamed for scuttling the process.

3. Facilitative vs Evaluative Mediation §

• Facilitative mediation stresses the informal and consensual nature of the process that is suitable for creative solutions.
  • A facilitator’s role is oriented toward process management rather than the substantive deal making.
  • Relationship management is necessary to enhance confidence and credibility along with reduction in hostility and tensions.
  • In carrying messages, mediators are gatekeepers for the flow of information.
  • Negative emotions and feelings tend to be controlled in the process of reframing the substance or facts of the message.
  • Trust and confidence of the disputants can be gained by avoiding taking sides.
• Evaluative mediation, an intermediary should be capable of making a judgment in assessing the disputants’ arguments about a fair deal.
  • Whereas principles, opinions, and values need to be separated from facts, a focus on the disputants’ underlying interests or goals may still need to be regarded as crucial to evaluative mediation.
  • In a domestic setting, retired judges, senior lawyers, or politicians are more likely to be respected when in charge of evaluative meetings due to the depth of their experience in a particular field (such as business contracts or wage disputes).
  • Evaluative mediators may bring about an end to interest-based conflicts more quickly and easily than adjudication.
  • Breakdown (in negotiation and mediation) means arbitration and going to court with great uncertainty.

4. Transformative Mediation §

• Transformative mediation focuses on the improved relationships that help disputants develop their own capacity to resolve a number of disputes as they arise.
• The clarification of underlying issues and interests is essential to reframing and prioritizing the issues as well as clearing up assumptions.
• Trust and cooperation derive from the minimization of the effects of stereotypes through a communication process in mediation.
• Reduction in cognitive distortions contributes to the creation of a setting for mutual cooperation; empathy and sympathy can facilitate caring responses.
• Even though it can bring long-term positive relationships, transformative mediation is not easily adopted for crisis situations.

Phases and Steps in Mediation §

• There are diverse phases from initial contact to discussion of formal agreement.
• After the initial stage of contact, process functions can be set up to establish ground rules, clarify communication, define issues, and set agendas.
• At the opening stage, setting ground rules and structuring the agendas may move on to discussion about expectations.
• Keeping the process focused on the issues is essential to devising a framework to achieve an acceptable outcome.
• In shifting from the opening to proposal development stage, trust building can emerge from perceptional changes.
• At the stage of formulating and drafting proposals, mediators may remind the parties of the consequences of non-settlement and press the parties to be flexible along with supplying and filtering information.
• The formulation of viable options can be based on the assessment of what is minimally acceptable to each party.
• Less complicated issues can be resolved first in order to develop an atmosphere of accomplishment.
• That allows negotiation to continue until everyone is ready to accept the final draft as an agreement.
• The settlement can be formalized by establishing an evaluation and monitoring procedure along with the creation of an enforcement mechanism.

Types of Mediators §

• State versus non-state intermediaries can be compared in terms of their diverse motivations, skills, capacity, and leverage on disputing parties as well as differing values and principles.
• Various types of mediators have different degrees of leverage, ranging from the persuasion of alternative future and benefit to threat of withdrawal from their mediating efforts.
• Individual states, alone or collectively, may intervene in a conflict which adversely affects their political interests or as a way of enhancing their influence or status.
  • Strong states can apply carrot and stick to press for concessions, offer proposals, and alter the pay-offs and motivations.
  • On the contrary, small and middle-rank states are engaged in low profile strategies of dialogue and communication to improve their prestige and status.
• Mediation is often mandated or promoted by international or regional organizations.
• Individual mediators tend to be motivated by a desire to be instrumental in change.
  • Their initiatives heavily rely on a personal capacity with communication, facilitation strategies.
  • The involvement of individuals is not common and is limited to informal mediation prior to direct negotiations compared with a state’s involvement in mediation.
• In contrast with former politicians, religious leaders carry moral and persuasive ability.

Coordination of Multiple Mediators §

• Multiple types of mediators may join combined initiatives or develop separate contacts with contestants.
• The coordinated mediation initiatives can be sequentially executed upon the failure of previous ones.
• In a peace process, multiple activities can be complementary to supporting the entire process of negotiated settlement.
• Non-state mediators may open the door for formal negotiations involving state or other entities which have to carry out the agreement.
• In the absence of cooperation and consultation, new actors may take initiatives that contradict the existing process with a turf war in a crowded peace-making field (e.g., Burundi, Sudan, Somalia).

Assessing Mediation §

• In the simplest assessment, a mediation outcome is regarded as successful if it contains conflict and prevents armed clashes.
• A mediation outcome can be assessed in terms of either reaching an agreement or improvement in relationships that can pave a road for bilateral negotiations.
• The terms agreed in haste under pressure can be resented or overturned in the future.
• The feelings of equity felt by the parties as well as the mediator can motivate a durable change.
• The acceptance or rejection of settlement terms can be based on the consideration of its diverse consequences.

Assessing Mediation §

• Various mediators have different degrees of influence over the process and outcome, depending on the partisans’ relationships with the mediators.
• A more forceful mediator role can be beneficial, but it also has to involve strong incentives for the partisans to accept the dominant role of a mediator.
• If one of the parties clings to its position, it will be difficult to make a breakthrough.
• Good mediation is fair and efficient while improving the climate of the relationships.
• The success or failure of mediation represents not only internal but also external variables, ranging from the intervention timing to a shift in an international political environment.
• Beyond a mediator’s skills, effectiveness in mediation is also related to disputant motivation as well as each side’s internal power distribution and nature of their decision-making process.

Ethical Issues & Power Imbalance §

• Manipulative strategies (based on the presentation of erroneous facts and ambiguous statements) are not likely to produce genuine settlement, eventually tarnishing one’s reputation and credibility.
• In addition to procedural justice, substantive justice featured by a fair and equitable outcome should be one of the main criteria that guide the mediator’s judgments.
• At the same time, mediators will not avoid balancing ethical concerns and political feasibilities affected by power imbalance.
• One of a few tools possessed by mediators in the equalization of power is to let a marginalized party be aware of their own power as well as guaranteeing equal access to information.
• Yet, mediation is not easily adaptable to dealing with an unequal distribution of power established in social institutions.
• In general, mediators do not have authority and capacity to rectify conditions of injustice created by the disproportionate distribution of power and do not have a veto power over the outcome.
• Mediation may have to be conducted within a given political process which may not be suitable for serving the interests of marginalized parties.
• “The informality of mediation (when compared to litigation) may present inherent difficulties for weaker parties if the safeguards of more formal procedures are lacking” (Amy, 1987).