5. introduction to mediation

8/2/2019 5. Introduction to Mediation

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Introduction to Mediation

24/04/12 Titre de la prsentation


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Introduction of mediation in international

environmentPreparation of the exercice 10mn redingsPreparation by team 15 mnSimulation 45 mnBreakDebrieffingvideos:

Gender in the mediationFilm clip: Lakhdar Brahimi a mediator in

international conflict "crash" wedding

Agenda of the day



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History of Mediation

Tradition of dispute

resolution in almost allcultures of the world.


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Why mediation is preferable to trial?

What about your feeling as parties in thismidation?

Debriefing : Mediation and trialin international business



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WHY MEDIATION?


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Beyond hope, Freddy Tsimba

Rp. Dmoc. Congo 2007


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Three dimension of MediationThe problem

What is the probleme?

The people

Who are involved on the mediation?

The process How the mediation is managed?


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Interests and positions ofthe parties

Positions

Position BPosition A

Intrets

Needs

Needs, valuesand shared positions

Fears and

shared needs


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Neutrality and coercion inMediation

Third Party Arbitration

Third Party Mediation

Party BParty A

Coercive Mediation

Imposition of the solution

Muscular Mediation

Neutral mediation

Conciliation problem solving

Good office


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DEFINING THE CONCEPT OF

MEDIATION"Any action taken by a player who is not directly

involved in the crisis, is designated to reduce orstop the obstacles and facilitate the negotiationand conclusion of the crisis itself. Oran R. Young,The Intermediaries : Third Parties in InternationalCrisis, Princeton (N. J.), Princeton University Press,1967, p. 34.

"The role of intermediary [...] Supported by a thirdparty whose main purpose is the result of acompromise between the parties on issues ofconcern or at least to stop the conflict behaviors ".

Christopher R. Mitchell, The Structure ofInternational on lict Basin stocke Macmillan


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The intervention of a neutral, impartial and benevolentparty to facilitate the resumption or continuation ofdialogue between parties, so they succeed by themselvesin exploring their conflicts, identifying underlying needs ofeach party, imagining all the possible solutions,evaluating them and finally choosing those upon whichthey freely and mutually agree.Alain Lempereur, Jacques Salzer et Aurlien Colson,Mthode de mdiation, Paris : Dunod, 2008, pp. 3.

Healing Mediation : a last resort; the choice between theperpetuation of the conflict or the use of a higher

authority to help resolve the conflict Preventive Mediation: discuss the difficulties betweenpartners before it turns into conflict


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Seven principles for a successfulmediation1. Independence versus the perceivedreality

2. Neutrality versus equity3. Principle of impartiality versuspersonal interests4. Principle of confidentiality versus the

exceptional circumstances5. Principle of respect of rights versuscreativity6. Principle of Fairness versus the free

will of the parties


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SIX STEPS FOR

CONDUCTING AMEDIATION


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2. Identify the problem

3. Needs 4. Explore Solutions

6. Conclude

5. Make Commitments

1. Introductions

SIX STEPS IN A MEDIATION

Lempereur, Salzer & Colson, Mthode de mdiation...

FIRST STEP T k Ti f


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FIRST STEP: Take Time forINTRODUCTIONSMake introductions (parties and mediator)

Explain the purpose and limitations of mediationExplain views on the role of the mediatorEstablish basic principles of dialogue and

introduce the problem(s) to be mediated.Obtain the agreement of the parties on the

principles of mediation and the problem(s) to bemediated.


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1 Objectives and limitations?

Explain that mediation is: facilitating negotiations between the parties (see

concept of the role of mediator) explanation of the different stages of mediation

explanation of the role of individual interviews("caucuses")

voluntary, not imposed decisionsOptionalExplain what mediation is not:not a place of argument

not a trialno arbitrationOptional: explain what will happen if mediation fails


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Explain role of mediator Intervention on three types of problems:

Process Relationships between the parties Substance, the underlying problem & issues

Two types of intervention: Advisory (more aggressive) Facilitating the birth of solutions (midwifery) A mixture of the two


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3 Principles of Dialogue

Principle of no-interruptions The parties must each speak in turn (and therefore do

not interrupt one another) Only the mediator is authorized to interrupt a party

and will do so only if clarification is needed

Principle of mutual respect between partiesThe parties shall at all times show respect for oneanother

The application of this principle is much more difficultto determine objectively

The mediator must be careful and avoid projecting hisinterpretation of respect.


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Principles of Confidentiality

Two principles concerning the use of what is

said or decided during mediation: Everything stated during mediation must be kept

confidential (not be repeated outside themediation session)

Guarantees that the information exchanged is safeand is not used against you in another place.

Principle of confidentiality will be enforced Decisions in mediation should be fully

implemented, as a contract.

Respect of decisions gives meaning to mediation.

i i l


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Agreement on PrinciplesMediation Agreement on three points:

1) Principle of dialogue;2) Principle of confidentiality;

3) Review the principles and check onelast time that the parties expresstheir commitment to engage inmediation.

These three points are called thecompromise of mediation:

Framework in which the mediation takesplace.

Mediator can refer to this compromise atany time during the mediation.


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SECOND STAGE: IDENTIFICATIONOF THE PROBLEMEach party clarifies the facts. (choose one person

to start)Use active listening.The second party summarizes what the first

party said, always using active listening.

Mediator checks with the first party to make surethe understanding of the second party is correct.

After both parties have stated the facts, allow

each party to respond to statements made bythe other.

Identify the issues, major problems


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STEP THREE: DETERMINE

Positions, Interests, NeedsEach party explains what is most important to

him/her (hierarchy of needs)

Ask each party to summarize their understandingof the interests or needs expressed by the otherparty.

Focus the parties' attention on the needs

expressed and not on their interests or positions.


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FOURTH STAGE: EXPLOREOPTIONSGet parties to engage in brainstormingExplain the purpose of brainstorming: think

of all possible ways to meet the identifiedneeds

Explain the method of brainstorming: participation of both parties acceptance of the wildest ideas no criticism or assessment of ideas, no ownership of

ideas, or decisions made

Parties agree on the purpose and method of

brainstorming.


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FOURTH STEP: EXPLORINGOPTIONS (2)

Urge the parties to research solutions, includingcrazy ideas

Whenever necessary remind the parties of theprinciples of brainstorming.

LIST THE PROPOSED OPTIONS


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FIFTH STEP: Evaluating

and Agreeing on OptionsObjectives of this step:

- Amongst the options identified throughbrainstorming the parties evaluate eachoption and determine those which areacceptable to both.

- IF none of these options are acceptable toboth, the parties can resort to finding otherideas outside the table (outside of themediation)


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SIXTH STEP: CONCLUDE theMEDIATIONAsk the parties to assess the various options.

Use the criteria for evaluation. If there is deadlock on certain difficult points,

come back to them later. If necessary, discuss alternative options and

have parties evaluate them.

List the options which the parties appear toagree upon.

Ensure that there is indeed a COMMITMENTnot only today,but tomorrow and in the future.


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Summarize any commitments made, in

writing if necessaryIf no global agreement has been

reached, try to get one eventually:

review alternatives Possibility of meeting again Work through the points blocking the

agreement

In all cases, congratulate the parties fortheir ability to work together in reachingan agreement.


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Lessons learned from

Negotiations andMediations


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A VIRTUOUS CIRCLE OFMEDIATION AND

NEGOTIATION1. PREPARING

2. NEGOTIATING

3. ANALYSING

4. CONFIRMING/INNOVATING


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Four steps on problemssolving

I. Problems

II. Diagnostic

of the origin

III. General Approach

Possible solutions

IV. Specific Actions(Commitments)


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SOME RELATED CONCEPTSIN THE FIELD OF


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CONCILIATION

Conciliation is a procedure used by peoplein conflict, seeking to reach an amicablesettlement. It is a free procedure which

will avoid lengthy procedures ...Conciliation is method of alternativedispute resolution. It involves theintervention of a third party, who, after

hearing the parties and discussing theirviews, propose a solution to resolve theirdisputes. Conciliation differs frommediation, which is an accompaniment,

and the judgment is binding. The partiesare of course free to acce t or refuse. The


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ARBITRATION

It is a simple procedure that can resolve a

dispute without going through the courts, byentrusting the dispute to one or more individualsselected by the parties.

In international relations, arbitration has for its

object the settlement of disputes between Statesby judges of their choice and on the basis ofrespect for law. "Section 37 of the HagueConvention of October 18, 1907 Settlementpeaceful resolution of international conflicts.

Arbitration is the conflict resolution method mostaccepted and widely used among sovereignstates. States failing to recognize any rule otherthan that they have established or accepted.


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CONSULTATION

Consultation is a process of dialogue whosepurpose is to arrive at proposals accepted by allparties involved, and to provide guidance. The aimof the consultation is to seek agreement amongstparticipants for subsequent decision making, notonly to exchange information or arguments. Thisdistinguishes dialogue from a debate.

The aim of the consultation is to adapt decisions tothe needs of the actors and to adjust them to the

interests of everyone, even if the decision remainsin the hands of the stakeholders.

Consultation is different from negotiation in that itdoes not necessarily lead to a decision, but it aims

to prepare for negotiation. Concerted action is for


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Concertation is different from consulting

in that it does not amount to a requestfor an opinion. The consultation involvesthe confrontation between the parties,the exchange of arguments, clarifyingthe points of view of each.

Dialogue is different from mediation inthat it does not require a third party to

facilitate the search for agreementbetween the parties. The exchanges aredriven by one of the parties or, in somecases, a facilitator linked to one of them.


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Good office or facilitation

The "good offices" work for the facilitator:

provide support, fluidity and encouragecontact between conflicting parties.No interference in the content of the

negotiations.

Freely chosen by the parties to the conflict,it helps to:Meet on neutral ground;Initiate a dialogue to find solutions to the

conflict;Negotiate;Sign an agreement.


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Films

Cuba, une odysse africaine,Jian El Tahri 2007,

2X90, The Peacekeepers, Paul Cowan, 2005, 83 min 07 s,13 Production.

Saint-Germain ou la ngociation, 2003 GrardCorbiau,

Les mediateurs du pacifique, Charles Belmont, 1h55mn. Le temps du Dbat et l'Age de la ngociation

dEric Blanchot, IO production, Citizen Tlvision2006, Dure 2X55 minutes

The Fog of War, Errol Morris, 2003 (Oscar dumeilleur documentaire en 2004

12 Angry Men, Sidney Lumet, 1957 Endgame, Peter Travis, 2010

Rising Sun, Philip Kaufman 1993. The Great Debaters, Denzel Washin ton 2007


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Books


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Bibliography

AHAMED Sad Abass (2009) Facilitation internationale etngociation politique en Rpublique Dmocratique duCongo (RDC) : un tat de belligrance sans fin? inMlanges en lhonneur de Christophe Dupont paratre enseptembre.

DARBON Dominique, Autopsie du miracle sud-africain : lecas de la Truth and Reconciliation commission sud-africaine, Revue franaise de science politique, 48 (6), dcembre1998, p. 707-724.

FAGET Jacques (2008) LES MTAMORPHOSES DU TRAVAILDE PAIX tat des travaux sur la mdiation dans les conflitspolitiques violents Vol. 58 2008/2

QUANTIN Patrick (2005) Jacques Faget (dir) Omar Bongo,mdiateur des conflits africains - - 276 pages

LECOUTRE Delphine (2005) La mdiation de l'OUA dansle conflit entre l'thiopie et l'rythre (1998-2000)


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LABANA LASAY ABAR Jean Berchmanh (2006),

Ngociation politique et processus de paix en RDC , dansMANTUBA-NGOMA et al, La Rpublique Dmocratique duCongo : Une dmocratie au bout du fusil, FondationKonrad Adenauer, Kinshasa. p. 91.

M'BOKOLO-Elikia (2009) Mdiations africaines : Omar

Bongo et les dfis diplomatiques d'un continentlArchipel PEKAR LEMPEREUR Alain (2007), BENSIMON et PEKARLEMPEREUR (dir). La mdiation postconflit dans Lamdiation mode demploi, Paris, A2C mdias.

ZARTMAN William (2004), Transfrer le conflit d'un

niveau militaire a un niveau politique Expriences dengociations et de mdiations internationales ,Ngociations, n 2.

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