Training Manual on Human Rights Monitoring - Chapter XXI: Conciliation and Mediation in the Field
Basic elements of the mediation process
1. HROs may be involved in resolving disputes which arise in the communities where they may be located. Situations amounting to human rights violations may involve elements of negotiation between the HRO and the authorities, or mediation between the authorities and the victim or family of the victim. Obviously, in seeking solutions to such kind of disputes, the basis and criteria of the HRO's mediation and negotiation efforts are provided by international human rights standards. The HRO may use techniques from other chapters in this manual to engage in discussions with the authorities at various levels. Indeed, one could see the entire human rights field operation as having a role in the mediation of human rights problems in the country.
2. Other disputes may not fit within the mandate of the field operation, for example, a dispute as to grazing rights between two shepherds. Nonetheless, there may be aspects of such a dispute which might raise problems within the mandate of some human rights operations, if the shepherds are from different ethnic communities and their specific disagreement has been caused by larger communal cleavages or if their dispute may become a cause celebre or the trigger for violent ethnic conflict.
3. Even if a HRO has been asked to intervene in dealing with a particular dispute and regardless of whether the issue falls within the mandate of the operation, it may often be wisest for the officer to encourage the parties to make use of existing institutions and traditional procedures for dealing with the problem rather than taking an active role in the process. In all societies, there are avenues for dispute resolution. It is unlikely that a HRO will have sufficient understanding of the society to achieve a better and more acceptable result than the traditional dispute resolution processes. Further, the HRO should, in any case, try to encourage the existing procedures to function and would not want to suggest that such procedures be bypassed.
4. Nonetheless, there may be some contexts in which HROs may be asked to play a role in mediation and conciliation -- particularly where the traditional processes, for example, within ethnic communities, are not capable of functioning. HROs may encounter disputes between different communities where the government is not functioning or is not trusted by one or both sides. In those contexts, the HRO may have some role in mediation and conciliation.
B. Basic elements of the mediation process
This chapter sets forth a few very basic questions, the HRO might consider in considering or undertaking mediation and conciliation:
5. Is this dispute (or problem) within the mandate of the field operation?
6. Is there an existing governmental, nongovernmental, traditional, or other mechanism which can handle this dispute? The human rights field office may develop referral lists and other procedures for the triage of disputes which are (1) outside of the mandate, (2) better handled by other procedures, or (3) both.
7. If the issue falls within the operation's mandate and there exists no suitable mechanism for handling it, are there some steps the HRO can take to encourage the development or the revival of societal or governmental dispute resolution procedures? For example, if there is a lack of trust in the capacity of a particular governmental institution to handle the matter, could the HRO lend credibility to the institution by offering to observe the proceedings or otherwise participate in a supportive role.
8. If there is no way to refer the matter or to encourage other institutions to resolve it, the HRO must consider carefully whether s/he has enough information to resolve the dispute. Why has the dispute arisen? (In this context, it may be necessary to delve far below the surface.) What are the respective interests of the parties? What sort of dispute resolution approach would be most normal and acceptable for the parties? How can the parties be helped to resolve the dispute themselves?
9. Does the HRO have the capacity and the time to engage in mediation or other forms of conciliation? Such procedures take a lot of time and skill. The mediator must develop a certain rapport and trust with both parties. In most disputes, it is the parties themselves which ultimately find the solution, the mediator only helps to facilitate that process but it usually takes a lot of time. 10. The HRO should be able to understand and speak the local language well so as to develop the requisite trust with the parties to a dispute. Reliance upon interpretation is particularly problematic. While it is often difficult to find an interpreter who can handle interviews well, the demands on an interpreter in mediation are far more exacting. Only if the interpreter is highly regarded by all parties concerned, should mediation be attempted through interpretation. It is difficult to overemphasize the importance of translators of integrity. In the tense and polarized environment of conflict, bias or inaccuracy on the part of the translator might easily be seen as the responsibility of the HRO. The HRO would need to run checks on how particular interpreters are seen by different sides.
11. If the HRO decides, after appropriate consultation with superiors, that it is important to pursue the mediation, there still remains several questions of approach. For example, in approaching a mediation, the HRO will often be faced by suspicions or at least questions as to why the HRO or the human rights field operation would want to mediate. When the proposed mediator is on the staff of a human rights field operation, the parties may assume that the reason is related to the policies of the particular field operation and the UN more generally. If the parties see the UN and the field operation as impartial, no problem arises; but if they believe that the UN really has an agenda that favours one side rather than another, the HRO/mediator is immediately seen as a manipulator. In order to deal with those suspicions, the human rights field operation must be aware of the broader implications of their activities and how they will be perceived. But the field operation cannot cease its human rights work in order to be found acceptable for mediation and, in any case, always strives to be impartial in its human rights efforts. At minimum, the HRO must deal clearly with the question: "Why are you/the field office interested in mediating this dispute?" And the mediator must also in the way s/he introduces him/herself reaffirm that in the process they will use, the power of decision rests with the conflicting parties. The HRO will, in no sense, be an arbiter.
12. Having dealt with these initial suspicions, the HRO may wish to pursue an approach which most closely replicates the process of dispute resolution commonly used in the society. It may be that the community only has had traditional procedures within communities and not between them. Nonetheless, there may be some common elements in the processes of each community from which the mediator may be able to find mutually accepted procedures. Sometimes, however, the way existing institutions function (or fail to function in the eyes of some) may be part of the problem. The HRO may need to inquire as to how the disputants and others feel about the different institutions and procedures available. Observing and advising on the fairness and efficiency of procedures being used by such institutions would avoid becoming compromised. The HRO may play a useful role in getting the parties thinking about a process for the resolution of the dispute.
13. In the absence of such traditional or mutually acceptable procedures, the mediator may wish to listen to the views of each side separately. Such an opportunity to explain one's position is ordinarily therapeutic for the disputants and will give the mediator a better idea of what is involved. During this process the mediator must be both willing to listen and at the same time not take sides in the dispute.
14. If the parties are willing to meet, the mediator might begin with an initial discussion of approach to further substantive dialogue rather than start immediately with substantive issues. The mediator should introduce him/herself, his/her role, and the need for all the participants to work together to resolve the problem. The mediator might also get agreement about his/her role not as a decision maker, but only to help the parties to use their abilities and information to work together. The mediator might have further meetings with each of the parties to hear a confidential account of their respective views, to develop an understanding of the issues, to identify ways in which the parties can work together, and to encourage each side to build a positive image of the other. Eventually, the mediator may conclude that the parties have identified elements of the dispute which might serve the basis for building mutual confidence. They are thus ready to discuss the substance of the dispute and to improve their ability to work together towards its resolution. The mediator might then bring the parties together to reaffirm and express appreciation for the initial agreements they had developed in the separate meetings. The mediator might identify other areas as to which the parties may share objectives and thus could consider further resolution of the problems and thus strengthening the relationship of the parties.
15. Some mediators have found it helpful to organize a community meeting inviting interested participants from the affected groups to exchange views and discuss efforts to live together. Such a meeting may help or may be counterproductive depending upon the previous conflict resolution efforts which have been pursued in individual discussions. Other mediators have organized meetings with only the representatives of the different sides or a relatively small group, for example, a few from each side. The mediator may need, in such cases, to discuss the parameters of the meeting with each side before convening the joint session. The mediator should work with the sides to get agreement as to how the meeting will be conducted, the agenda, whether minutes will be taken or disseminated, the expected length of the session, etc. The mediator will need to consider how to handle dissonance or aggressive words/deeds during the meeting. The mediator should try to create an open atmosphere for discussion in which the joint interests of the parties are stressed. Some attention should, for example, be paid to how the participants will be seated, for example, in a circle, to avoid accentuating the polarity of the groups. Such meetings should ordinarily be organized only at the request of the community. While a mediator should continue to assist the groups in meeting, s/he should work towards reducing his/her responsibility and thus re-establishing self-sustaining local structures to address community problems. For example, the mediator might eventually reduce his/her role from the meeting facilitator to an observer. (1)
16. If the parties are unable to meet, the mediator may need to engage in a form of shuttle diplomacy at the grass roots level -- talking to each side in turn, explaining the mediator's role, and trying to identify those aspects of the issue as to which there may be agreement, partial agreement, or disagreement. While it will not make much difference in the ultimately resolution of the process, some mediators believe that it would be useful to begin talking with the less powerful of the sides, to demonstrate that the parties should be treated impartially. (2) With both sides, the mediator should explain his/her role -- not as a decision maker but as a facilitator with the power remaining in the parties to make the decisions.
17. If there are matters as to which both parties agree or as to which they can be helped to see a common interest, the mediator may wish to propose acceptance on those issues as a first effort at building mutual confidence. Mutual confidence will help to resolve more difficult questions which separate the parties. A skillful mediator may be able to find some approaches to the problem in which both of the parties will gain and as to which the dispute can be avoided. For example, if both parties have conflicting claims to water rights from a stream, the mediator might be able to suggest a mutual project of improving the flow in the stream or digging a well so that the water supply of both would be improved.
18. Another confidence-building approach would be to begin discussions with individuals who are members of the different groups, but who are not necessarily the recognized leaders. The mediator might try to identify members who are willing to take at least some risk for reconciliation or who are just interested in talking with the other side. Selecting the right "representatives" is often quite difficult. The HRO would need to be clear about the status of the individuals selected and to assure that they have some credibility with the broader group. People could be identified as part of a fairly broad process of consultation, then checked out with the appropriate decision-makers. These discussions can identify issues and possibly ways of resolving them. Similarly, the mediator might suggest projects which are directly related to the dispute, but which would be confidence-building, if successfully completed.
19. Yet another approach would be for the mediator to ask one party to identify relatively minor concessions they would like from the other side, how they would like those concessions to be communicated, what minor concessions would that party would be willing to offer? What would be the best way of communicating those concessions so as to be least likely to foster misunderstanding? Having had the same discussion with each side, the mediator might propose an exchange of those concessions with the mediator acting as a depository of each side's concessions until they can be exchanged. (3)
20. A further approach would be for the mediator to propose that one party begin to build mutual confidence by taking a unilateral step which would reduce tensions and to invite the other side to do the same. The mediator can then ask the other side to do the same. The process continues to diminish the conflict. If the other side refuses to take a conciliatory measure, the first party may still take yet another unilateral step and invite the other side to do the same. If the other side takes a retaliatory measure, the first party may respond in kind, but in such a way that the results are less serious and the initial tension reduction effort is not erased. The first party might then begin again by taking a unilateral step which would reduce tensions and to invite the other side to do the same. (4) In dealing with this approach, however, the HRO needs to be aware of situations where equal de-escalation might have an unequal effect. For example, if the morale of one side is precarious or one side feels they have a hard-won but temporary advantage, pressure for an apparently equal standoff/truce may actually favour one side.
21. On issues which are still dividing the parties, the mediator may wish to identify the degree to which each party really cares about each aspect of the problem. For example, it may be that one party cares about issues 1, 4, and 6, while the other cares most about issues 2, 3, and 5. In such a circumstance, the mediator might be able to propose that each party prevail as to the issues about which they care the most. If they care equally about certain issues, the mediator may be able to find a way of giving each partial satisfaction or of compensating each side for allowing the other to prevail on some matters. It is often very difficult and time-consuming to craft a solution which will resolve the grievances of both sides.
22. Disputes are often generated by the perceptions each side may have of one another or may be caused by the very different ways which individuals may attempt to resolve problems. The mediator may try to have each side describe themselves and then describe the other party. The mediator might ask each party to identify the good aspects and the less appealing aspects of themselves and the other side. The mediator can then try to focus on developing a mutual understanding of the differences while concentrating on the mutually agreed positive elements of each side. A mutual understanding of personality differences can help to resolve substantive differences. For example, some people are very much result-oriented. Others need to establish a relationship before they can work towards results. If the result-oriented side understands the approach of the other side, they can begin by developing the mutual relationship as their first task before striving to achieve results.
23. In developing approaches to disputes, the HRO should keep in mind both the mandate of the field operation and the human rights norms which underlie that mandate. The resolution of the dispute should be consistent with international human rights law, should resolve the grievances of the parties, and should develop capacities for dealing with further such disputes without the direct assistance of the field operation.
1. See Sonja Valtasaari, Community Facilitation Meetings (Organization for Security and Co-operation in Europe, Mission to Bosnia and Herzegovina, 1996).
2. Dudley Weeks, Conflict Resolution Workshop Packet 17 (1996).
3. Friedrich Glasl, Conflict Resolution 59 (1996); Friedrich Glasl, Konfliktmanagement (1994).