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Conceptualising Relevance Of Negotiation And Mediation In Armed Conflict

By Dr Bishnu Raj Upreti

Negotiation is a voluntary process that deals with a conflict situation between the negotiating parties. Negotiation includes any instance in which two or more people meet, face to face and communicate with each other for the purpose of influencing each other’s decision, to reach a mutually acceptable solution of the conflict issue. Hence, negotiation deals with diverse interests in conflicts. Negotiation can be categorised into two distinct forms i.e. distributive and integrative. Characteristics of distributive negotiation are to focus more on resource distribution (win-lose). The attitude of negotiating parties is firm with attention given to their own interests and a far-reaching consequence may be a lose-lose situation. Characteristics of integrative negotiation are to create resources (win-win situation) where negotiating parties are open to alternatives and also give attention to the interests of others, through participatory problem solving. It leads to a collective decision and commitments by the negotiating parties to achieve an optimally collective solution. In the context of Nepalese armed conflict we need integrative negotiation. Integrative negotiation is a voluntary process in which conflicting parties meet face to face to reach a mutually acceptable solution.

Negotiations, generally, focus on the best alternative for a negotiated agreement, interest (issue, position and criteria), and process (they create a condition for effective problem solving). Existing power relationships play an important role in the negotiation process. Actor specific characteristics such as position, function and personality determine power relations in negotiation. The actual use of the power depends on the context.

Following broad categories of negotiation are useful for Nepalese case:

* Concession making (reducing goals/demands),

* Contending (trying to persuade the other party to concede or trying to resist similar efforts by the other party),

* Problem solving (trying to develop other alternatives),

BATNA (best alternative to a negotiated agreement) is a common concept in negotiation. Any negotiator should determine his or her BATNA before agreeing to any negotiated settlement. If the settlement is as good as or better than one's BATNA, the agreement should be accepted. If the alternative is better, it should be pursued instead of the negotiated settlement. When one party's BATNA is good, they are unlikely to be willing to enter into negotiations, preferring instead to pursue their alternative option. As a negotiation proceeds, constituent involvement strategies help negotiators involve their constituents in the process. This is critical, since constituents are less likely to accept an agreement that is obtained if they have not been involved in the process enough to understand why the agreement was designed and why it is the best alternative available.

Mediation as a part of negotiation

Mediation is the intervention in a conflict situation, of an acceptable, impartial and neutral third party who has no decision-making authority, but who will assist contending parties to negotiate an acceptable settlement of issues in the dispute. The mediator’s neutral role as facilitator involves assisting parties, privately or collectively, to identify the issues in dispute and develop proposals to resolve them. Mediators may meet privately and hold confidential and separate discussions with the parties to a dispute. In some cases, mediation may be compulsory under the terms of laws or court rules. In other cases, it may be voluntary, by agreement of the parties. Some jurisdictions have rules requiring mediation of disputes at some point in the litigation process. Mediation helps parties seek to resolve their disputes in a manner, which avoids hostility and preserves an ongoing relationship. Mediation holds an important place in CM because it is a problem solving approach and creates opportunities for mutually benefiting resolution. It makes agreement possible, which the disputants find satisfactory and improves their relationships. Mediation focuses on reframing the process of changing attitude, behaviour, issues and interests of parties in conflict. The role of mediators is important in discerning interests from positions, reframing issues, and questions, giving fair consideration to different opinions, assisting in finding mutual gain and solutions and writing up an agreement in a contractual language for its effective implementation.

Some principles of mediation

1. Mediation is an art and a science

Successful mediators have to have combination of personal traits such as sensitivity, intuition empathy and enough confidence to maintain control of meetings when tempers flare and to avoid being bullied by powerful parties. Similarly, the mediator have to be able to keep own ego in check and refrain from being too assertive or too anxious to achieve a positive outcome. Mediation is also a science in the sense that it encompasses a body of theory, models, techniques and skills. The skills relate to process design, conducting meetings, facilitating communication and overcoming deadlocks. In essence, the mediator seeks to affect a shift from adversarial win-lose outcomes to more cooperative win-win outcomes.

2. Conflict is not inherently destructive

Some people view conflict as an intrinsically negative and are used to describe situations of large-scale violence. The perspective is acceptable in the context of violent conflict. However, this perspective is analytically misleading and strategically unhelpful in the general conflict context. The reality is that conflict is inevitable and ubiquitous in all societies, which comprise diverse groups. Whether ethnicity, religion, ideology or class defines these groups, they have different needs, interests, values and access to power and resources. These differences consequently generate conflict and competition. When people view conflict as inherently negative, they try to avoid it or seek to prevail over their opponents through the use of power.

3. Mediators are neutral

When individuals or groups are entangled in conflict and believe that their differences are irreconcilable, their relations are characterized by a high level of tension and mistrust. Deep feelings of anxiety, anger and enmity inhibit discussion, dialogue and rapprochement. In such situations, the use of mediation comes in creating a safe political and psychological space for the conflicting parties to address their concerns with the assistance of an independent third party. Mediation is a confidence-building and trust restoring exercise. The disputants' faith in the process stems largely from the expectation that the mediator will be fair, impartial and neutral. Where mediators demonstrate a bias against or in favour of one of the antagonists, they break that bond of trust and undermine the integrity of the process. When it is impossible to find unanimously accepted respected personality, a 'balanced' team of mediators might be useful and acceptable. All mediators have personal and professional values, which shape their attitudes and conduct. Yet one of the professional values is a commitment to procedural fairness.

In case of involvement of international mediators there is the danger too that a partial mediator will become a party to the conflict, contributing to the problem rather than its resolution (e.g., the US in the Middle East).

4. Mediation requires the consent from the parties in the conflict

Mediators cannot mediate conflicts without the consent of the disputant parties, and their authority and mandate are, consequently, derived from the parties themselves. This gives the disputants confidence in the process. Parties in conflict select mediators who they trust and, therefore, the mediators are accountable to them. Parties in conflict are more willing to reach a settlement when they have instigated the mediation than if it is imposed on them. Before the start of formal mediation, they have to reach consensus on at least two issues: the choice of the mediator and, more importantly, the potential benefit of engaging in dialogue and negotiation. Global experiences show that often powerful international actors often seek to initiate mediation and appoint special envoys as mediators without consent of the disputants. The parties may not be receptive to mediation or they may be ready for talks but have no faith in the appointed envoy.

5. Mediators do not impose or prescribe solutions

Mediators have to analyse the positions of the conflicting the parties. The parties in conflict are typically motivated by unmet needs, which are fundamental, and by real or imagined threats to their security. The threats may relate to physical safety, cultural identity, financial security or some other concern. Basic human needs are not limited to material imperatives like food and shelter; clothing, health and sanitation and go beyond to have respect, acknowledgement and affirmation. They want to be involved in decisions that affect their lives. There is only little chance of achieving a viable and lasting agreement if the parties in conflict do not own the negotiated settlement. Mediators have to avoid prescribing solutions and exercise discretion when offering guidance to the parties. Their mandate is not to make decisions rather to facilitate decision making by the parties in conflict.

6. Separate mediation from advocacy and enforcement

Mediation is not the only appropriate strategy for dealing with conflict, but in situations of oppression and injustice, it is essential for local and external actors to apply pressure on the offending party through advocacy or enforcement measures. The advocacy includes campaigning for democracy and respect for human rights, and the enforcement include legal, economic and other sanctions. Different bodies should perform mediation, advocacy and enforcement to achieve effective negotiation. For example, a cleaner separation could be made between the UN Secretary General's responsibility for mediation and the Security Council's consideration of enforcement action.

(The author is conflict management expert)