LINES WRITTEN A FEW METRES ABOVE UNTERWASSERSTRASSE[i]:
Introduction and Background
The end of the Cold War did not, as we then so fondly hoped, usher in an era of peace. Although interstate wars may seem to have become relatively rare, intra-state conflict has become nearly constant and largely intractable. Armed force alone is of little value in resolving these lower-level but deadly conflicts – and intrastate wars have since the early Nineties been characterized by sickening casualty tolls.[ii] Alternate means of management and resolution of conflicts by non-violent methods have therefore been widely sought. These have, in some cases, offered real hope for the mitigation and even the prevention of conflict.
A resultant interest in the tools of mediation and negotiation continues to grow. The entire field which is generally referred to as alternate dispute resolution seems to present an attractive soft power tool box for the restoration and maintenance of peace. It has become an essential measure for containing, preventing and (hopefully) resolving conflict – non violently.
On 25 November 2014 Peacehawks attended a conference on Peace Mediation, jointly sponsored by the German Foreign Office and, prominently among others, the Berlin-based Zentrum fuer Internationale Friedenseinsaetze (ZIF: Center for International Peace Operations). The conference was held in the Europa Saal of the Federal Foreign Office on Unterwasserstrasse in Berlin. The conference, as it developed, was not really about mediation itself, but rather about the questions of if, how and in what cases, Germany might have a third party role in conflict intervention. As was soon pointed out by several delegates, this question has been under discussion at least since the end of the Cold War. Considered answers have ranged all the way from “Why not?” to “Of course!”
Regarding the participants of this conference from the narrow ledge of my generation gave me an almost vertiginous feeling – they were mostly 40 or a bit, mostly German, and about half women. And here they were facing up to a question, or a bundle of questions, which the graybeards of my service time in Germany had found unthinkable – when most of this audience were just in their teens. Some people have indeed come a very long way in just one generation. Nevertheless, I’d lived with these questions for a long time, and they were no longer up to me or even my generation. So I slipped away to thinking about just what mediation really means, and how it ought to work – but has, in our life and times, so seldom done.
What is Mediation, What is a Mediator, and Why?
Mediation is assisted negotiation. In this paper, this will imply a conflict which is a threat to international peace and security and, in accordance with the Charter of the United Nations, is to be settled “by peaceful means and in such a manner that international peace and security, and justice, are not endangered.” (Article 2.3)
The mediator is not a party to the dispute or the conflict, and has not or should not have any interest in the outcome. The mediator is like a referee: caring only how the game is played, and not at all concerned with who wins or loses.
The mediator is the custodian of the rules and procedures of the process. She may have initially declared these rules if it is the only way to start the play, but it is far better if the parties design and agree on their own set of rules. Indeed this process of designing, agreeing upon and installing their own operating rules may be seminal to the entire process. We call this process of setting rules meta negotiatons – negotiating about negotiations, and without the willing cooperation of the parties in these initial steps, we may be in for some very hard times.
So even though the mediator may initially and of necessity play a very active role, he fully intends to work himself out of that part of the job, with the parties negotiating directly with each other.
Why doesn’t it work that way from the outset? Why is a third party needed at all?
A mediator is needed because there is
- Something about the problem, or
- Something about the parties, or
- Something about the situation
which makes direct inter-party communications impossible, and a mediator must assist the negotiators.
The Stages of Mediation
Mediation will usually progress through several stages. These are not necessarily linear; they may overlap, there will be regressions and great leaps forward, and the process may stall for considerable periods. Nevertheless an idealized schema of the phases of mediation may be helpful in understanding and planning the process, and is presented here.
The mediator will have a leading role, and will probably do most of the talking. Schematically it might look like this:
This is like the pre-game stage of a football match, where the referee introduces the team captains and his assistant referees to one another, and he lays down or reiterates some rules. He flips a coin, and one team elects to kick off and the other to defend. The players have little to say at this stage – they exchange flags, shake hands and take their teams onto the field.
The game is now afoot: the mediator may ask the parties to make opening statements. Each party will be reminded not to interrupt the speaker, but to prepare their own response as a separate presentation. The parties are still speaking principally to the mediator but are, it is to be hoped, listening closely to each other.
It might look like this:
It may seem that the mediator is largely passive here, but he is like a background programme: he is in fact as subtly as possible doing several things:
- The mediator is enforcing their rules for the parties: he maintains a high standard of courtesy. He enforces their rules about language, particularly as concerns race, religion and gender.
- Again like a referee, she keeps the time in accordance with the rules which the parties have set.
- He is employing a fact checker – apocryphal history is often deliberately (or even unwittingly) used by the parties, and can be enormously destructive of discourse. The mediator will be alerted to this by the fact checker, who is sort of an assistant referee.
The mediator will now invite the parties to respond to each others’ presentations. As heretofore, he will be policing language, checking facts and keeping time – all in accordance with the parties’ own agreed rules.
It should look like this:
And now that the parties are speaking directly to each other, effective listening will be especially important. Here the mediator will see for the first time if this intervention is to bear fruit – if the parties can communicate effectively with one another, there is hope for, if not yet a solution, at least for the management of the conflict. If this does not happen, the mediator may have to revert to Phase 1, and will speak with each of the parties in turn. This would be a major regression, and does not bode well for the desired progress.
If this phase is successful, then we can move on to
The mediator will move as far as possible into the background: the parties are communicating directly with one another – they are negotiating. If this phase is sustainable, the mediator’s job is largely done, and she may more or less leave them to it.
We hope it will look like this:
Of course the mediator has not entirely disappeared, anymore than does the referee when the game is going well. There are some key issues which may from time to time require the mediator to intervene. Some of these might be:
- It may be that the parties are lacking in skills and techniques of negotiating. The mediator may, with the consent of the parties, arrange for training in negotiating techniques. If this is to be necessary, it would best be done as a prelude to the negotiations, but the problem might only become apparent in the course of negotiations. In that case it might be necessary to have a recess for training.
- The weaker party may often have difficulty being heard, and the mediator must take steps to correct that. In this way the mediator levels the playing field, and may have to intervene frequently to keep it that way.
- Listening can be more powerful than talking, and the mediator can as necessary, by questioning and re-stating, ensure that the parties are listening effectively.
Relationships are important. The conflict may have arisen in no small part because the relationships which are necessary to living peacefully with neighbours, even or especially when the neighbours are historic enemies, have never existed or have broken down. Nevertheless, solid relationships, especially involving trust, can provide the safety net which enables the parties to undertake the compromises and the risks which negotiations will so often entail. The mediator can do much to foster and maintain relationships among the parties. Essentially, the mediator asks the parties to set aside nearly all the minor issues which may appear to have caused the conflict; what remains will hopefully be the core issues which can then be the objects of real negotiations.
Some Characteristics of Some Solutions
Whoever wins all the points and all the arguments usually has won nothing. The Versailles Treaties were not the end of WWI, they were the beginning of WWII.
Peace usually does not equal victory. To paraphrase Winston Churchill, those who pursue peace through victory usually achieve neither. Zero-sum games usually produce no winners, only losers.
A solution, in whatever form and by whatever methods it is achieved, must be fair, wise and efficient.[iii]
Power cannot be hoarded, and often must be shared.
The most common form of power sharing at the national government level is the formation of a coalition government. Germany, one of the wealthiest and most stable countries in the world, has had a coalition government for most of its post-WWII history.
In Kenya, elections in December 2007 resulted in an outbreak of terrifying tribal violence which left 1,000 dead and made more than 300,000 homeless, while shattering the country’s image as one of the most stable African countries. The elections were largely considered to have been rigged. Nevertheless, the re-elected president promptly conferred 17 of the 30 most important cabinet posts on members of his own tribe. Former UN Secretary-General Kofi Annan was asked to mediate the conflict. Quickly realizing that the traditional power hoarding had finally broken down and could never be made to work again, he invited Germany to send an advisor who would introduce Kenyan politicians to the idea of a coalition. Gernot Erler, then State Secretary of the German Foreign Office, travelled to Kenya and presented the idea of power sharing and the formation of a coalition, apparently the first his audience had ever heard of this form of government. The two main parties agreed to a coalition government on 29 February 2008. The process was called the Kenya National Dialogue and Reconciliation (KNDR); the agreement was called the National Accord. The assisted negotiations had lasted 41 days.[iv]
Conflict knows no panaceas, but the violence was quelled. A new constitution, said to be the most progressive in Africa, was promulgated in August 2010, fulfilling a two-decades-long effort to reform the old constitution. Despite another outbreak of tribal violence in August 2012, elections in January and March of 2013 were largely peaceful, and were considered by observers to have been generally fair. The National Accord was fair, it was wise, and it was quickly implemented. It has a good chance to endure.
We admire successes like this, but we need to be reminded that it is seldom that one gets into, or out of, these affairs so cleanly, nor anything like so quickly. A civil war, which is what Kenya nearly had, is usually a great mess. Casualties and refugees are in astronomical numbers and growing. There are international, regional and local, military and civilian agencies deployed. Mandates proliferate, duplicate, omit, conflict. Missions creep, crawl and fail. The environment is somewhere between volatile and extremely dangerous. In Kosovo at the end of 1999 there were the UN, OSCE, UNHCR, EU, NATO, perhaps 500 NGOs (nobody ever knew quite for sure), and probably over one million returning refugees and IDPs. This was in an area about the size and population of Berlin. That “intervention” is now 15 years old.
Those who would become involved in conflict management, by whatever means, should think seriously about the complexity, the dangers and the probable duration of such interventions. And that goes especially for the conferees sitting those few metres above Unterwasserstrasse on a rainy November day in Berlin last year.
Some Other Problems for the Mediator
It may be difficult to define the parties, which may be fragmented, internally conflicted or not legitimately representative of whatever cause or point of view they claim to espouse – sometimes all of the above may be true. Thus one or more parties may look like this:
It may also be difficult to see who has the power, who can really negotiate and who is simply acting under instructions. Is it P1? Or is the real power figure hiding somewhere in A, B, C, D, E or F? The primes inter pares may be deliberately and carefully concealed.
Compounding this difficulty, it may well be that there are in deep background and/or off-shore players who, while well known cannot for political and diplomatic reasons be formally identified, but who are closely controlling the parties at this mediator’s table. As it was and probably still is in Cyprus, representatives of Athens and Ankara were disguised as members of the local Greek Cypriot and Turkish Cypriot communities, and especially of their armed forces. So it is whenever the Cyprus conflict is discussed: the real power behind both parties resides in Athens and in Ankara. This can never be formally acknowledged, but is why over 50 years of negotiations in Cyprus have gone nowhere: the decisions are taken by Greeks and Turks, and almost never by Cypriots.
The only thing the mediator can do is to insist on negotiations in good faith, and that means that each party must field a genuine negotiator, and not just a note-taker and reporteur. Nevertheless, there will be varying degrees and limits of authority around the table. It does not make it any easier for the mediator that nearly everyone else around the table – except the mediator – knows perfectly well these shadings of authority and legitimacy. No one ever said this was going to be easy.
Some people do not want peace. Often a party will think victory is in their grasp, and there is no point in negotiating. As Radovan Karadzic said in 1993, “They are militarily defeated, and we have no urgency to negotiate with them”. A “deputy” in the Bosnian Serb “parliament” echoed that: “This resolution should be thrown out together with the Vance and Owen maps. We Serbs must militarily defeat our enemies and conquer the territories we need.”
And a good many people prefer war: the perennially workless, without legitimate prospects or place in a society they despise, usually with a low violence threshold – these often find barracks and operations, no matter how ramshackle, vastly preferable to waiting in lines for jobs which will never be theirs. As Robert Kaplan wrote in 1994, “a large number of people on this planet, to whom the comfort and stability of a middle-class life is utterly unknown, find war and a barracks existence a step up rather than a step down.[v] These are a crop regularly and fruitfully harvested by those who do not want peace, who wish never to share power with those they despise, and who often regard negotiating as shameful – “unmanly”.
These spoilers will ever be in the background of conflict, and the mediator who has not yet encountered them is looking under the wrong rocks.
The balance between hard and soft power will be essential to the level field, but may be outside the range of the mediator to manage. This is a continuation of the challenge of making the weaker voice to be heard. In another sense, where a mediator is facing off with the Mladics and the Karadzics, it may well be she who faces an asymmetry of soft vs. hard power. If there is a peace operation engaged with that particular conflict, their capacity to contain and prevent escalation of the conflict will be critical to the conduct of the mediation, and the peace force may lend the mediator a needed touch of hard power. The mediator must have intimate contact with the peace operation – they need each other, and a close partnership is essential to them both. Especially the mediator will need to have a clear understanding of the mandate of the peace force: is it consensual (ie grounded on Chapter VI of the UN Charter) or is it an enforcement mission (mandated under Chapter VII of the Charter)?
Apocryphal history misleads us all, and conflicted parties are often led into and then trapped by a version of history which lies somewhere between incomplete and false. Legends are important, but so is the truth. As Victor Hugo wrote in Les Miserables, in 1862:
The past, that ghostly traveler, is likely to forge his papers. … The past has a face which is superstition, and a mask, which is hypocrisy.
We must expose the face, and tear off the mask.
And that is just one more difficult and delicate task for the mediator.
There are several reasons why the mediator must have an independent, and if necessary aggressive, pr capability.
Leaders often do not truly represent “their” people, nor the people’s aspirations. Do not just ask the men with the guns what their real interests might be, ask those women and children who make up that nearly 90% of the casualties of recent conflicts. The mediator must have the means to do just that; she must have her own voice.
The mediator must have a robust public information policy and means. When in 1992 the UN Protection Force (in the former Yugoslavia – UNPROFOR) applied for a licence to operate a UN information radio programme in Croatia, the licence application was denied by the Croatian government, and there the matter “rested”, for nearly four years of misrepresentation and scapegoating, as often as not by the Croatian government. But this was the UN’s traditional passive PR policy: don’t descend to their level; never explain, never complain. Whatever was thrown, stuck.
In 1996 the UN Transitional Authority in Eastern Slavonia (UNTAES) didn’t ask, they acted. They quickly recovered the never-used UNPROFOR broadcasting equipment from its Zagreb storage, fired it up and went on the air. Before that mission was six months old, the voice of the UN was being heard everywhere throughout the region, for up to three hours per day, and was almost immediately one of the most-listened-to programmes in its broadcasting area, which was of course far wider than just Eastern Slavonia.
It will be convenient to blame the third party for everything. As Ingrid Lehmann has written:
Speechlessness and loss of credibility … can encourage scapegoating … by the … parties .. . based on often deliberately promulgated false expectations, rumours and misinformation.
In the new peacekeeping environment of civil and ethnic wars, where hate propaganda is increasingly used as a weapon by the belligerents, ignoring the impact of this information tool is no longer an option.[vi]
The mediator must influence, if he cannot control, the media flow and the story lines. He must curtail or at least respond to unrealistic expectations, or distortions of his mandate, and he especially cannot be pressured to produce results. His motto must be “no deadlines, no headlines.” Above all he cannot allow scapegoating.
The non-violent resolution of conflict involves issues such as relationships, especially trust, patience, effective listening, correcting history’s false lessons, external intervention – one day’s reading of international news will show just how delicate and difficult these issues and measures can be. “Knowing me, knowing you”, it is not surprising that this often does not work, it is amazing that it ever does. “It’s the best we can do.” In mediated negotiations, the mediator asks the parties to set aside nearly all the issues which may in fact have caused the conflict.
Despite the extraordinary delicacy of the process, a mediator can assist parties to negotiate who could never on their own even meet. A mediator can help to build or to repair relationships which have been shattered or have never existed. The mediator can level the playing field, can give voice and security to the weaker party, maintain a balance of hard and soft power, and can steer the parties to an agreement which is fair, wise and efficient, and this will usually be an agreement which will endure.
A successful mediator is a good referee: she cares how the game is played, not how it plays out.
This stuff is never easy, never simple, and never quick.
And that probably is the best we can do.
[i] With a courteous nod to William Wordsworth
[ii] In WWI the military comprised about 90% of the casualties. In WWII it was about 50/50. In the intrastate conflicts since the end of the Cold War, civilians have been about 90% of the total casualties; of these, the majority have been women, children and the elderly – these are often tied to their land for sustenance and receive no medical or other support when forced from their land. For them to be displaced is often a virtual death sentence.
[iii] See Hoffman, Ben, Win-Win: Competitiveness Made in Canada, Captus Press Inc, North York, Ontario, Page 13. Ben Hoffman has been my mentor, boss and friend since we first worked together at the Lester B. Pearson Canadian International Peacekeeping Training Centre in 1995, and on numerous occasions since then. He founded the Canadian International Institute for Applied Negotiations in 1994 (See http://www.ciian.org) .We have become so close over the years that I honestly cannot estimate my debt to him, and I often cannot separate my ideas from his. Ben is a highly original thinker and practitioner, and I am grateful for his leadership and his friendship.
[iv] See http://kofiannanfoundation.org/our-work/kenya-national-dialogue-and-reconciliation, accessed 12.12.2014
[v] The Atlantic Monthly, “The Coming Anarchy”, by Robert Kaplan, February 1994
[vi] See Lehmann, Ingrid, Peacekeeping and Public Information – Caught in the Crossfire, Frank Cass, London, 1999, Pp 152-3