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MediationTheory, Practice and Special Issues

Dr. Jose Pascal da Rocha

Dr Pascal da Rocha

Agenda

Definition of mediationRelevanceHigh powered vs low powered mediationStages of mediationLimits of mediationSpecial issues and casesConcluding thoughts?

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Definition

Mediation: a process whereby a third party assists two or more parties with their consent to prevent, manage, and resolve a conflict by helping them to develop mutually accepted agreements

Mediation is assisted negotiations

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Principles

Mediation exists alongside facilitation, good offices, and dialogue

• Voluntary• Impartiality• Confidential• Structured process• Mediator responsible for process• Parties responsible for content

But we do negotiate as well:• shuttle diplomacy• secret talks• multi-stakeholder consultations• popular referenda• involvement of government institutions• plenary sessions

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Mediation parameters

Role of a mediator: https://www.youtube.com/watch?v=QmnA3lVDItQ

African mediation:https://www.youtube.com/watch?v=a9R--eERgUE

Mediation frame:Low powered vs High powered mediation

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Mediation frame

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Pre-requisites

Low power neutral mediation:• Be neutral• Be impartial• Facilitate

High power mediation:• Yes neutral (content/results)• Directive (muscle mediation)• Negotiate• Offer/work on solutions• Be impartial

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Phases in political mediation

Pre-pre negotiation phase Pre-negotiation phase (talks about the talks)

Negotiations-Mediations Implementation (incl. monitoring and verification)

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Pre-pre negotiations: informal contacts

Putting one’s foot in the door

Armed groups’ life expectancy

Falling into their own logic

Tend to be more violent One needs to understand their evolution

Changes in leadership Fundamental human rights issues must be respected

Let fighters know that there is an alternative to fighting

Accountability for crimes committed against civilians

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Pre-negotiations: Talks about the talks

Organizing the talks Mission or aim of the talks – what can be obtained

Who will sit at the table – how is it decided

Where will the parties meet?

Who will facilitate/mediate the process?

Techniques of the work – Methodology – Conflict mapping

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Limits of Mediation (1)

• The parties do not understand the process and have not been educated/understood about the process

• The parties do not realize that time and effort on their part are necessary to a mediation and fail to plan for the session accordingly

• The parties need to plan putting the mediation first. A break in attention outside of the mediation risks losing momentum

• Mediation is no substitute for a lawyer planning and analyzing the law and the case. It does not replace the need for advocacy

• Mediation presentations should not be overdone.

• Mediation should reduce stress and allow for special needs

• Lack of good faith by one of more parties

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Limits of Mediation (2)

• Unrealistic expectations• Lack of authority• Overly contentious party and/or a

failure to recognize or to consider the shortcomings of the case

• Not willing to accept realistic outcomes

• Not willing to accept the fact that the result has to be a win/win situation

• Not willing to sacrifice positions and interests nor to discuss principles

• Not willing to make concessions• Power assymetry• No empathy• Group fragmentation/loss of group

cohesion

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Reflections

• When do you think can mediation work?

• What are limits to mediation?• How would you approach mediating a violent conflict? Any experience?

• Mediation phases and Mozambique (1992)– St Egidio taking the lead in pre-pre-negotiation

– FRELIMO and RENAMO at mutual hurting point

– Organization of the talks and final agreement in Rome

– Issues of disarmament and rehabilitation

– Risks and costs of not engaging in peace process 15

Special issues and cases (1)

• Conflict analysis: Darfur (2006 – present)– Clashes between pastoralists and nomad communities– One seeking protection from the other– Emergence of insurgency against center-periphery driven discourse of deprivation

– Terrain of proxy wars between Sudan, Eritrea, Libya, Chad

– Deterioration of relations between Sudan and Chad since DPA 2006

– External forces driving the discourse of relevance of rebel groups: Fragmentation of groups

– Lack of coordination of mediation efforts: Credibility deficit

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Special issues and cases (2)

• Multitude of actors: Somalia (2006)– clan-driven divisions and local disputes, as well as external spoilers, such as neighboring states (Ethiopia, Eritrea, Kenya, Djibouti, and some Gulf states), the US, and the UK.

– the Addis Ababa Agreement in 1993, a framework and implementation agreement sponsored and facilitated by UNOSOM and Ethiopia; the Arta Agreement in 2000, a powersharing agreement hosted and facilitated by Djibouti; and the Transitional Federal Charter of the Somali Republic in 2003–2004, a comprehensive agreement mediated by seven Horn of Africa states under guidance of the Intergovernmental Authority on Development (IGAD).

– In 2006: Arab League initiated mediation efforts between Transitional Federal Govt and Council of Islamic Courts

– In 2006: CIC was ousted by Ethiopia

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Special issues and cases (3)

• BATNA in mediation: Kampala Talks (2013)– Degree of power and influence– Risks and costs of retaining relevance for the M23

– UNSCR 2098 invoked a robust mandate for peacekeeping, incl. Intervention Brigade

– Leadership split in April 2013, leading to a smaller faction of rebels remaining to fight

– Military victory and advances made by FADRC against M23 in August during Kampala Talks

– M23 agreed on ceasefire in October 2013 in order to remain relevant and disband

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Special issues and cases (4)

• Intractable conflict: Syria (2011-present)– High intensity, belief-based conflict– Fragmentation of parties– The parties and individuals are the problem– Passed beyond moment of ripeness– Multitude of actors– Possible solution?

•Quick formation of locally agreed peace coalitions and agreements

•International Contact Groups•Use of BRICS to bring Russia on board

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Special issues and cases (5)

• Context and nature of conflict matters

• Better coordination of multitude of actors

• Workable and just agreements• Preempting peace and justice in agreements

• Better knowledge sharing and management

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Concluding remarks

ObrigadoThank you

MerciSiyabonga

DankeTack

SpasibaGracias

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