International political mediation in the Israel-Palestine Conflict

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terminology and definitions

alternative dispute resolution and mediation are definitely on the move. preaching to the choir of supporters, there is no doubt about the difference in terminology and use. however, over 72% of user's still don't know about the characteristics of adr, mediation and other tools of constructive conflict resolution.
for a fresh start into 2009, here is a concise glossary of terms and definitions.

ALTERNATIVE DISPUTE RESOLUTION (ADR)
Refers to dispute resolution procedures utilized outside of court, cost effective litigation management and litigation prevention techniques

BRAINSTORMING
The process of inventing options and developing alternatives towards achieving a settlement. This is an open forum where neither party is obligated with respect to the ideas generated

CONFIDENTIALITY
Private matters discussed and held in confidence by the neutral third party

FACILITATE
To make easy or easier...to lighten the work of; assist; help [Webster's New World Dictionary]

FACT FINDING
Informal process whereby a neutral third party investigates the question in issue and submits a report or testifies in court.

INTERESTS
Concerns, desires, wants. What caused people to take a position

NEUTRAL
Impartial Third Party; a disinterested party with no "connection" to the matter

POSITIONS
What people in a dispute want; something decided upon

WIN - WIN
A proposition in which both sides of a dispute have had an opportunity to explore positions, interests and options for resolution, and ultimately structure an agreement that has "appeal" to both.

A. Mediation
DEFINITION
A private, voluntary process in which an impartial person facilitates communication between parties to promote settlement

NEUTRAL
Impartial third party selected by parties to assist in identification and clarification of issues, generation of options, and facilitation of a mutually acceptable agreement

ROLE OF LAWYERS
May present case, although parties usually communicate directly; may assist client regarding clarification of legal issues; drafts agreement

ROLE OF PARTIES
Able to ventilate feelings, tell their story and negotiate directly; participate in creative problem-solving

SCOPE OF PROCESS
Flexible; voluntary; no rules of evidence; private; confidential

OUTCOME
Mutually satisfactory resolution; relationship maintained; Ideally: Win-Win result for all parties. Often: Acceptable compromise

B. Arbitration
DEFINITION
Adversarial system of justice designed to present civil case to a neutral third party for decision

NEUTRAL
Usually retired judge or lawyer who serves as a professional third party neutral; sometimes non-lawyers act as neutrals particularly in labor disputes

ROLE OF LAWYERS
Advocate positions of client

ROLE OF PARTIES
Discuss case strategy with lawyer; be available to respond to discovery; answer questions

SCOPE OF PROCESS
Similar to lawsuit; discovery commenced, experts consulted; preparation for hearing; adversarial proceeding

OUTCOME
Win-Lose; costly; often time consuming

C. Negotiation
DEFINITION
Voluntary, informal, unstructured process used by disputants to reach a mutually acceptable agreement

NEUTRAL None

ROLE OF LAWYERS
May or may not be appointed by disputants to represent them in negotiating

ROLE OF PARTIES
May represent themselves in direct conversations with opposing side; high personal involvement; normal communication problems

SCOPE OF PROCESS Unstructured, voluntary and non-binding; position based

OUTCOME
Ideally: a mutually acceptable agreement based on shared interests; Realistically: Varies from Win-Win to Lose-Lose

D. Litigation
DEFINITION
Adversarial system of justice designed to present civil case to a court for decision

NEUTRAL
Judge employed by county to issue binding decision; jury selected from geographic area

ROLE OF LAWYERS
Advocate positions of client

ROLE OF PARTIES
Discuss case strategy with lawyer; be available to respond to discovery; answer questions

SCOPE OF PROCESS
Lawsuit filed and answered; discovery commenced, experts consulted; trial preparation; trial

OUTCOME
Win-Lose; costly; time consuming

E. Mini-Trial
DEFINITION
Abbreviated, informal presentation of case by the parties to a senior claims or business representative intended as a prelude to settlement discussions. Primarily used in large, complex, or multi-party cases

NEUTRAL
Impartial third party may be selected by parties, but not always, to preside over
presentations and assist the parties in eliciting information

ROLE OF LAWYERS
Summary presentation of case in adversarial manner

ROLE OF PARTIES
Observe, listen to case from both sides, ask and answer questions; make an informed evaluation; engage in settlement discussions

SCOPE OF PROCESS
Loose structure, flexible; agreement of parties; non-binding; confidential

OUTCOME
Negotiated settlement based on the full range of needs and objective of the parties.

F. Hybrids
HYBRID PROCEDURES/ COMBINED PROCESSES FACT FINDING
Process used in conjunction with other ADR procedures by which facts relevant to a controversy are determined.

MEDIATION/ ARBITRATION (MED/ARB)
Parties agree to mediate with stipulation that any issues not settled will be resolved by binding arbitration.

MULTI-STEP ADR
Progressive series of ADR processes utilized by parties to an agreement or dispute designed to give the parties an opportunity for achieving a resolution through the most effective forum. The process begins with low cost and informal procedures and moves towards more formal and costly methods. For example, if negotiations fail, mediation occurs; if that is unsuccessful, arbitration takes place.

TWO TRACK APPROACH
ADR processes or traditional settlement negotiations used simultaneously with litigation. Settlement discussions are often conducted by persons not involved in the litigation.

DAY BASEBALL
The parties give the neutral, at the end of the hearing, their last, best offer/demand. Having reviewed the evidence and listened to the testimony, the neutral picks one figure or the other as the award. This process encourages both sides to be as reasonable as possible in presenting their final positions.

NIGHT BASEBALL This option is similar to Day Baseball, except the parties seal their last, best offers instead of giving them to the neutral. After the neutral renders a decision, the party whose number is mathematically closer to the neutral's award prevails.

TELEMEDIATION Similar to Confidential Listener, except that an ADR Provider staff person works with each party to explore the respective merits of the party's case and attempts to mediate a resolution over the phone.

G. The Listener (Doctor-Patient-Model)
DEFINITION
A neutral third party appointed by the disputants to obtain a proposed final settlement offer from each party. Without disclosing the content, the Confidential Listener advises the parties if their offers are within a specified range. The range usually is agreed upon by the parties in advance, along with a mechanism for dividing the difference in the event that the offers overlap. If the offers are outside the specified range, the Confidential Listener may assist the parties in bridging the gap
and achieving a final settlement

NEUTRAL
Impartial third person selected by parties to listen to offers and facilitate settlement negotiations

ROLE OF LAWYERS
Can provide offer to listener and engage in settlement negotiations

ROLE OF PARTIES
Can provide offer to listener and engage in settlement negotiations

SCOPE OF PROCESS
Pursuant to agreement of parties; sometimes occurs during mediation as a means of closure; somewhat structured to ensure confidentiality

OUTCOME Negotiated settlement; Win - Win

H. Settlement
DEFINITION
Neutral individual, often a retired judge or professional attorney/mediator, listens to abbreviated presentation of case and renders an advisory opinion on factual or legal issues, as well as damages

NEUTRAL
Selected by parties or court to evaluate strengths and weaknesses of case; assists parties to reach settlement

ROLE OF LAWYERS
Summary presentation of case in best possible light; prepare client for negotiating

ROLE OF PARTIES
Available to answer questions, hear the other side's case; engage in settlement discussions

SCOPE OF PROCESS
Voluntary or court ordered; loose structure; non-binding; no witnesses; private; confidential

OUTCOME
Advisory evaluation designed to narrow issues and assist parties in settlement negotiations

I. Check-List for Conflict Management
Step 1: Identify The Issues In Dispute

* Coverage
* Personality Related
* Liability
* Evidence
* Damages
* Credibility

Step 2: What's At Stake?

What are the Insurer's Interests?
What are the Claimant's Interests?
What are the Plaintiff Attorney's Interests?
What are the Insured's Interests?
Are there any Critical or Key Controlling Interests?
What does each Party See as their Best Option?
What are the Realities vs. the Perceptions?

Step 3: Critical Information Analysis

What Information do We Need to Evaluate our exposure?
What Information do We Need to affect the Outcome?
What Information do They Need?
What Will it Cost to Get That Information?
Does "What's at Stake" Justify Getting the Information?

Step 4: Possible ADR Outcomes

Given the Issues, Stakes, Critical Information, etc.:
What are the Pros and Cons of each Process?
Are we Ready to Present?
Select our Preferred ADR Process.
Look to See if We Need an ADR "Plan B."

Step 5: Potential Proposals

What are the Proposals which Could be Made?
What Proposals Appear to be in Our Best Interest?
What Proposals do We think They will Consider?
What is Our Preferred Proposal?
What Objections can we Expect?

Step 6: Implement The Plan

Prepare our "Proposal" Conversation, Including:

* The Issues In Dispute - Get Confirmation!
* The Other Options We Considered and Dismissed
* The Mutual Benefits of Our Proposal
* Make our Proposal
* Handle Questions and Objections - Negotiate
* Get an Agreement on What will be Done

Mediation in Unternehmen

Mediation wird in Unternehmen als Konfliktlösungssystem langsam aber sicher anerkannt. Leider ist die Akzeptanz nicht so verbreitet, dass sich dadurch ein Schwerpunkt erkennen liesse. Der Trend ist dennoch da und er wird noch weiterhin anhalten und in einen Prozess umwanden. Dieser Prozess wird weniger durch Erkenntnis der Teilnehmer als mehr durch realitätsbedingte Einsicht entstehen, dass Kosten und Ressourcen durch Mediation erheblich eingespart bzw. anders frei gesetzt werden könnten. Eine diesseits geführte Studie legt folgende Resultate vor:

· Konflikte verursachen hohe Kosten.
Mit durchschnittlich geschätzten 17 % der Arbeitszeit ist die Bewältigung von Konflikten ein
enormer Kostenfaktor in Unternehmen. Es lohnt sich daher, sich intensiv und systematisch mit
dem Umgang mit Konflikten im Unternehmen zu beschäftigen. Dennoch:

· Eine solche systematische Beschäftigung ist selten. Nur drei von 51 Antwortenden berichten
von einer Betriebsvereinbarung zum Umgang mit Konflikten. Und:

· Die Zufriedenheit mit dem praktizierten Konfliktmanagement liegt nur im mittleren Bereich.
Eher positive und eher negative Antworten halten sich beinahe die Waage.

· Mit Abstand die meisten Konflikte innerhalb von Unternehmen werden offenbar immer noch
per Vorgesetztenentscheidung gelöst.

· Nutzen für alle Beteiligten, Vertraulichkeit, Zukunftsorientierung und Beteiligung der Parteien
an der Lösungsgestaltung sind den Teilnehmern die wichtigsten Kriterien für eine gute Konfliktlösungsstrategie
innerhalb des Unternehmens – vier Forderungen, die Mediation in hohem Maße erfüllen kann.

· Mediation ist als Konfliktlösungsinstrument weithin bekannt.
Presse und trainierende/moderierende Zunft haben für große Verbreitung gesorgt.

· Mediation ist als Konfliktlösungsinstrument verbal akzeptiert
Die Teilnehmer halten Mediation für ein geeignetes Vorgehen in den von ihnen identifizierten
Haupt-Konfliktfeldern. Insbesondere sehen sie viele Anwendungsmöglichkeiten für Konflikte
innerhalb des Unternehmens und in privaten Fällen.

· Die Erwartungen an Mediatoren sind hoch: Nicht nur Neutralität und Sachlichkeit sind
wichtig, gefordert werden hohe soziale Kompetenz, persönliche Ausstrahlung, Erfahrung im
Umgang mit Konfliktparteien, Führungsstärke und Fairness bei der Leitung der Mediationssitzungen.

· Mediation kommt immer noch selten zur Anwendung
Nur 12 Teilnehmer kennen Mediationsfälle aus eigener Anschauung, nur vier gaben an,
dass Mediation im Unternehmen zum Einsatz kommt. Erst wenn mehr Menschen in den Unternehmen
den Sprung zur Anwendung wagen, können die positiven Erfahrungen bewirken,
dass sich das Verfahren auch in breiteren Kreisen durchsetzt.

Für Einzelheiten der Studie stehe ich unter intermediares@mac.com zur Verfügung.

Mediating Multi-Party Disputes

When addressing conflictive issues, mediators are often confronted with multi-party disputes, conflicts involving more than two opposing parties.
Although the strategies discussed elsewhere on this site are helpful in these cases, several special considerations should be kept in mind:

- Spend extra time in pre-negotiation and needs assessment. This helps gain a sincere commitment to the process from all participants. It also clarifies how the issues are perceived from the various vantage points of the parties, minimizing surprise factors at the point of discussion.

- Use opening statements by participants as an opportunity for each person to share initial positions and be understood. An extra "restating ground rule" may be appropriate, where participants are asked to restate the previous person's viewpoint before presenting their own. Don't rush past initial statements, despite pressure to get on with business.

- Actively seek common ground early, not to minimize areas of difference, but to clarify them. By identifying issues that can be resolved in light of these areas of agreement, support can be built for continued dialogue.

- Recognize that several levels of negotiation need to occur. Cross-group discussion is the primary focus of substantive negotiation, but within-group communication is important to psychological and procedural needs in conflict. Try to allow time for dialogue within smaller groups, while keeping large group discussions focused on the explicit tasks of the group.

- Whenever possible, have subgroups form that break down old coalitions. This may offer participants the chance to shift from adversarial to solution-oriented relationships. If the group has multiple meetings, they provide excellent opportunities to establish task forces, project teams and information gathering groups, which rearrange traditional alliances.

- Be sensitive to the tension between being (social cohesiveness) and doing (task effectiveness) within the group. Managing this inevitable tension requires great skill on the part of the mediator. Disputants often have a profound experience in "knowing the enemy." This is valuable for its own sake, aside from substantive progress, and could translate into goodwill that is valuable in other settings. The mediator needs to constantly check with the group to be sure that any urge to be solution-oriented is a focus they continue to share, and help members realistically comprehend consequences of their decisions.

- Be especially sensitive to the role of moderates and extremists within the meeting. Moderates are defined here as those who demonstrate flexibility in negotiation. This includes a willingness to consider a variety of options and a desire to attend to others' needs in negotiation. Extremists in this context are those who rigidly hold on to a minority position. They narrowly define the agenda and often sabotage efforts by others (even in their own camp) to negotiate. In such multi-party disputes, it is critical to empower the moderates to "find their voices," and be sure their views are clearly expressed. Extremists tend to dominate such discussions, fearing that their concerns will lose if they don't argue forcefully: They need to be able to express their concerns and have them acknowledged, but this must occur within a context that allows all views to be represented with integrity at the table.

- Continue to be vigilant regarding your neutrality throughout the process. Major issues raised by ad hoc subgroups should be brought back to the larger group for resolution. Watch for possibly biased responses to extremists within the group; since they may be exhibiting attitudes you do not share, biases may lurk just beneath the surface of the meeting and emerge in subtle language or non-verbal behaviors. You may find it beneficial to "de-brief" during such experiences with a colleague as a reality check for your neutrality in the dispute.

(adapted from Harry Webne-Behrman, The Practice of Facilitation, Quantum Books, 1998. Used with permission of the author. All rights reserved.)

International Mediation

From a technical point of view, intercultural mediation is nothing more than a composition of the principles of mediation and the intercultural components of the parties or the cultural location of the conflict. Nevertheless, the methodology for a mediator in intercultural relations is quite different than the regular intra-cultural conflict. Today’s intercultural conflict resolution is framed by the effects of migration, globalization and internet. This paper/workshop will start by briefly recalling the basic principles and phases of mediation in order to provide the starting point for the intercultural take. This refresher will lead into a basic framework of terminology leading the interculturally active mediator into his dispute resolution design, such as the definition of conflict resolution, active listening, etc. The second part of the presentation will present two practical examples on international mediation. At first, international mediation in African civil wars will be used to develop a framework of 6 principles of mediation in intra-state conflict, such as: mediators must not be partisan; the parties must consent to the mediation and the appointment of the mediator; conflict cannot be resolved quickly or easily; the parties must own the settlement; mediators must be flexible; and mediators must not apply punitive measures. Hence, this development focuses on the mediator’s strategy and tactics as variables that enhance or diminish the prospect of success. Both substantive and emotional dimensions need to be addressed if the conflict is to be resolved.
For more, please visit the American Conflict Resolution Annual Conference in New York City from June 26th - 27th, 2008, http://www.acrnet.org

A Framework of Dispute Resolution

While preparing the conflict resolution design, the mediator has to master his knowledge of legal issues, psychology, human geography, communication styles and methodology of mediation. To help him build up a concept of operations, here is a litte overview of the most important topics for a dispute settlement design:

Conflict and violence are not the same thing
Conflict can be defined as a state of disharmony between persons, ideas, or interests, and is used to denote both a process and a state of being. Violence is commonly defined as the aggressive use of force exerted for the purpose of violating, damaging, or coercing, as well as an abusive or unjust exercise of power. Whereas conflict is not inherently negative or damaging, and can in fact produce positive outcomes, violence always results in injury and destruction.

Adversarial versus cooperative approaches to conflict
Adversarial approaches to dispute settlement occur when parties in conflict perceive themselves as opponents competing for mutually incompatible outcomes in which one side wins and the other loses. Typically, issues in dispute become polarized, feelings and perceptions become hostile, options are narrowed, communication between parties is restricted or non-existent, and disputants strive for all-or-nothing solutions. By contrast, the cooperative or problem-solving approach involves both sides collaborating - merging resources to seek solutions that address everyone's interests and are mutually beneficial. This approach to dealing with conflict is characterized by the use of joint problem-solving techniques, respectful communication and the pursuit of win-win solutions.

Advocating for common ground
"Understand the differences, act on the commonalities." Today's problems - whether ethnic, environmental, or economic - are too complex and interconnected to be resolved on an adversarial basis. It is our assumption that everyone's interests are best served by reframing the issues in a non-adversarial way, and advocating for a process that can maximize the gain of all those with a stake in the outcome. While ethnic, cultural and religious disparities may seem insurmountable in difficult conflict situations, common ground between parties can be found where interests overlap, and mutually beneficial solutions can come to the fore.

Impartiality versus neutrality You can be impartial, if not completely neutral. Being partial means defending one side or the other. Being impartial is working with people on both sides - our hearts might go out to those we feel have been wronged, naturally - however, our work is to bring people to the table to talk, to get them into dialogue about what they can do to improve the situation. We are not advocates for either side, but for finding common ground: it is not about justice for one but justice for all.

Reframing
Reframing, or creating a new context, is a technique of shifting the perception of a situation or problem to give it a different and/or more constructive interpretation. In mediation and negotiation, this method is used to recast a conflict in neutral terms to break deadlocks or stalemates and make further progress in attaining a joint resolution. In popular management literature, it is often referred to as causing a paradigm shift.

Conflict management versus conflict resolution
For those unfamiliar with the terminology of this field, there can be great confusion about these two concepts. Conflict management generally involves taking action to keep a conflict from escalating further - it implies the ability to control the intensity of a conflict and its effects through negotiation, intervention, institutional mechanisms and other traditional diplomatic methods. It usually does not address the deep-rooted issues that may be at the cause of the conflict or attempt to bring about a solution. Conflict resolution, by contrast, seeks to resolve the incompatibilities of interests and behaviours that constitute the conflict by recognizing and addressing the underlying issues, finding a mutually acceptable process and establishing relatively harmonious relationships and outcomes.

Choosing between hope and despair
It is human nature to experience feelings of despair, hopelessness and depression in destructive or intractable situations. We make the assertion that despair is a choice that hinders action. The people we work with on a daily basis are courageously choosing the alternative - hope - and are working through the personal anguish that arises in conflict situations to accomplish something constructive. The world is becoming more and more diverse, and its potential - both negative and positive - has never been greater. We believe it is critical to choose to work together creatively to turn that diversity into progress.

Breakdowns to breakthroughs
Often a breakdown in the functioning of a community, organization or government is considered a disastrous event with dire consequences. By shifting our perception, such occurrences can also be viewed as opportunities to step back and analyze problems, relationships and miscommunications. When the underlying causes of breakdowns are illuminated and addressed in this way it can lead to a breakthrough in cooperation and productivity. Learning from past difficulties is the surest way to avoid future mistakes and prevent conflicts from reoccurring.

Positions versus interests
Positions are points of view that are generally more specific and narrower in scope than interests, which typically underlie (and can include many) positions. Interests tend to be fundamental needs, while a position is often a statement of opinion about how to achieve that need. A position is much more easily altered than an interest. There are always places where parties' interests overlap in a conflict, whereas positions may appear mutually exclusive. The more intense the dispute, the farther apart positions tend to be from each other.

Attack problems, respect people
Transforming conflict can be as simple as reframing a situation - creating a new context in which people attack problems, rather than each other. The perception of a situation can be shifted so that both sides are working together on a common problem, rather than seeing each other as the problem. To address the problem in a cooperative problem-solving manner, it is important to discover mutual interests, generate options and develop agreements as steps for maintaining harmonious relations while dealing with problems directly.

Active listening
When two parties in conflict are speaking with each other, one or both sides are often more concerned with formulating a response and winning the argument than listening attentively. Active listening is a structured form of communication that focuses the attention on the speaker in order to improve mutual understanding and facilitate problem solving. The listener must attend fully to the speaker, and then reflect back what he or she has heard; enabling both parties to find out if the message was fully understood. This process serves to reduce misunderstandings, encourage positive exchanges, and deepen mental and emotional understanding of each side's concerns to create a relationship conducive to mutual problem-solving.

Active speaking
Active speaking is a communication process whereby a speaker appeals to another individual's higher self - the deepest level of humanity within each individual where dignity, integrity and compassion resonate the strongest. Often the key to achieving this is for the speaker to come from a place of respect, compassion and understanding. Active speaking is a courageous, creative act that usually requires the speaker to rise above their fears and concerns and speak from their own highest sense of self.

Perceptions versus reality
From the conflict resolution perspective, the absolute reality of a conflict situation is often less important than what each party's perception of that situation is. For example, while there may be no actual stated threat of violence between groups, the simple perception of a threat may be enough to bring one or both disputants to action. It is necessary to consider perceptions objectively and without value judgments, in an attempt to determine how such perceptions can create misunderstandings, limit options and hinder communication.

Transforming stereotypes
Typically in protracted conflicts, extremely negative stereotypes of opposing parties form based on their group identities. This can lead to dangerous assumptions that can devolve to the point where adversaries become dehumanized, opening the door to violence and genocide. One of our main goals in working with identity-based conflicts is to shift such negative perceptions, re-humanizing combatants in each other's eyes and paving the way for cooperative problem-solving. Methods for transforming stereotypes include facilitating inter-group contact, conducting workshops and activities that help to build social cohesion, and providing information via mass media that reduces the fear and misunderstanding.

Expanding identity
Often in violent, intractable conflicts, group identity is the central dividing factor around which a dispute revolves. Such a partition of identity creates an "us versus them" mentality, which inhibits communication and diminishes peaceful resolution options. In order to remove these barriers, an overarching level of identification that includes both parties must be developed, thereby creating a new category, which places disputants in a better position to work toward a common future. A successful example of expanding identity is South Africa's transformation from the divisive apartheid system of Blacks versus Whites into the inclusive Rainbow Nation.

Reference: Yarn, D., 1999, Dictionary of Conflict Resolution. Jossey-Bass Inc., San Francisco.

Mediation Services by Professionals

Professional Mediation Services

Richard E. Lutringer

Richard E. Lutringer concentrates his practice in international business and finance. He is experienced in legal problems of mergers and acquisitions, joint ventures, licensing, distribution, alternative dispute resolution and corporate finance.

Mr. Lutringer has published several articles concerning foreign investment and related topics, and he frequently speaks at seminars across the country and in Germany on legal issues relating to investing and doing business in the United States.

Contact:
900 3rd Avenue 23rd Floor New York, NY 10022 Phone: 212 745 0820, Email: rlutringer@mac.com

Seven Principles for Moving Forward Negotiations

Like it or Not, the United States and Iran are Partners: Seven Principles for Moving Forward Negotiations
by Bill Lincoln, Robert Benjamin, Polly Davis and Seth Kane


There is a point to be made and not to be forgotten: Conflict adversaries such as the United States and Iran are indeed the partners which each other needs and seeks if they are to prevent, manage and resolve dysfunctional conflict. While the nuclear issue is seemingly the focal point of the conflict, in reality it is the overall US-Iranian relationship that must be addressed if stability and real security is to be achieved in the region.

Within the certainty and fair provisions of international law, Iran – as do all nations – has the right to develop nuclear capabilities solely for peaceful purposes yet subject to the standards of the International Atomic Energy Agency and the Non-Proliferation Treaty. Similarly, the United States – as do all nations – has the right to be actively concerned about its own security and those of its allies. The principles of self-sufficiency of one nation and the security of another are apparent competing principles.

The International Coalition of Concerned Mediators (ICCM), a project of The Conflict Resolution, Research and Resource Institute (CRI) , respectfully submits that to date an intelligent, muscular, and realistic negotiation effort has not been undertaken by the United States and Iran to resolve their differences.

We are an organization of professional conflict management professionals whose daily work concerns the negotiated settlement of complex, difficult, and often intractable issues and disputes that many think insoluble – from matters of business, to geo-political and major public policy matters. Our careers have been dedicated to the study and development of practical expertise in preventing, managing and resolving conflicts. Our job as impartial players is to actively work to bring adversaries together, and to keep them engaged so that dysfunctional conflict can be addressed more effectively as well as equitably and efficiently.

We are deeply concerned that such professional attitudes and attention are not being exhibited in this situation. We strongly believe that action must be taken to effectively prevent what appears to be the very real prospect of war. Too many times in history the leaders of nations have proceeded to war without first sufficiently pursuing honest and productive negotiations free of threats and ultimatums.

Several nations within the European Union as well as Russia are proactive in attempting to ward off military confrontation. Similarly, the International Atomic Energy Agency (IAEA) is assertively fulfilling its mandate to objectively monitor and ensure Iranian compliance with the Non-Proliferation Treaty. Nonetheless, the broader international community is well aware that resolving the nuclear issue is unlikely if the animosity between the USA and Iran is not directly and effectively addressed -- and soon.

We fully acknowledge that negotiations involving the USA and Iran will not be easy. However, as seasoned and realistic conflict management professionals we also know that necessary channels for direct negotiations must be opened and engaged immediately.

Both Iran and the United States have rich cultures and histories, both have contributed to betterment of the world, and both are worthy of respect. However, both countries have also engaged in demonizing the other in ways that are all-too-typical in conflict escalation.

We are not interested in picking sides, casting blame or commenting on the substantive issues of contention. Based on our collective professional experience as impartial practitioners we would like to offer our insights on how the process of talks can be improved and advanced so that violent conflict can be avoided.

AS PROFESSIONAL CONFLICT MANAGERS WE PROPOSE THE FOLLOWING STEPS BE UNDERTAKEN IMMEDIATELY:

First, a key myth about negotiations must be dispelled, namely, that one can never negotiate with any other entity that it doesn’t trust.

To dispel such a hypothesis we only have to ask how much did North Korea and the United States trust each other in the cease-fire talks in 1952-1953? At first, absolutely zero. And how much trust existed between Israel and Egypt in the September 1978 Camp David Talks to end dysfunctional conflict between the two nations? Again, none. All through the cold war how much did the United States and the Soviet Union trust each other in disarmament talks? Not at all. And, of course, the current ongoing North Korea six party talks that have produced tangible benefits proceed with a distinct lack of trust. The key is can the disputing parties develop a process that they trust, a process that monitors the agreement and contains an enforceable future dispute resolution clause to address infractions, alleged breaches and unanticipated variables.

Countless historical examples demonstrate that negotiations have a chance for success despite past failures. Numerous and tireless efforts for peace were required in the case of Northern Ireland to finally achieve the levels of stability and cooperation that we witness today. Indeed, every successful peace settlement or rapprochement has succeeded in the face of skeptics arguing that talks were useless by citing past failures as evidence .

Second, negotiations cannot begin with “first, fair and final offers” particularly when such stances represent the insisted upon final results of a process that has yet to begin. Demands to accept certain specific substantive proposals as a pre-condition for talks are typically ‘non-starters’, and too easily can close down the possibility of negotiation before they even begin. Productive negotiations are comprised of bargaining ranges, not ultimatums.

Third, both the United States and Iran must stop focusing upon proposals that are non-inclusive of the other nation’s legitimate principles, i.e., “interests.” In so doing, the United States and Iran have to give more attention to their own as well as each other’s principles, and how such can be satisfied in equitable, practical and durable ways.

Both nations and all related entities must remember that conflict is rooted in a sense of competing principles such as a nation’s subjectively defined and valued notions of its sovereignty, its independence, its national culture and character, its security, its international political credibility and stability, its economic health, its functional amicability with other nations and so forth. It is such principles that “are at stake”, i.e., thus emphasizing the disputants as “legitimate stakeholders” in contrast to being merely arrogant or intransigent opponents. In doing so, one must be aware that the different histories, cultures, emotions, values and beliefs held by conflicting parties often play havoc with others’ definitions of rationality.

It follows then that conflict resolution occurs when disputing parties no longer sense that their respective principles are in dysfunctional competition with one another. Therefore both Iran and the United States must identify, discuss and clearly understand their own as well as the other’s principles, and to be ever mindful of them throughout negotiations. In fact, every proposal put forth must contain three components: (i) articulation of one’s own principles, (ii) verifiable case merits, and (iii) rational as to why the other side would even be seriously interested in considering the proposal, i.e., what principles/interests of theirs would be satisfied.

Fourth, procedural agreements are a vital stepping-stone to achieving substantive agreements.

Too often parties, “in the interest of time”, discount the importance of developing procedural agreements as mere preliminaries that can be rushed or even ignored. Procedural agreements are not “preliminaries”, but are prerequisites: A process of negotiations does not exist without them. Contesting parties negotiate procedural agreements that become the framework through which the causes will be discussed, issue items will be addressed and proposals will be negotiated. Below are some of the key functions, purposes and benefits of developing procedural agreements:

- Experience indicates that conflicting parties tend to negotiate procedural matters in the same way they intend to negotiate substantive matters, thus this initial step serves as a kind of dress rehearsal as to what to expect and what to do to enhance civility and productivity.

- By mutually determining who the primary stakeholders will be in the process an arena is formed that helps manage the conflict.

- By agreeing upon both internal and external behaviors as well as communication guidelines that will be permitted during the negotiations a framework for productive exchanges and conflict management is established.

- Procedural agreements can monitor substantive negotiations. After all, if a party cannot keep little agreements then what is the likelihood that they can keep big agreements – if a party cannot keep procedural agreements what is the likelihood that they can or will maintain substantive agreements?

- The conflicting parties become equal architects of the process in which they will collectively engage, thus developing senses of procedural equity and procedural ownership that contribute much to “procedural satisfaction” which is a central component for developing and maintaining durable agreements.

- While the contesting sides may have doubted that they could ever agree on anything, the process of procedural development has them working together, agreeing together, and getting into a “yes” habit.

- Procedural agreements can be used to specify various timelines thus hindering either side from using the pretext of negotiations as a stalling tactic.

Fifth, any productive negotiations involving the United States and Iran cannot constitute a “one issue agenda.” It must be acknowledged that both nations have several issues to be addressed with related proposals to be negotiated. Moreover, having multiple issues on the agenda increases the likelihood that quid pro quos will be identified and utilized successfully towards building a final agreement.

Not one, but both the United States and Iran are rightfully concerned for their need to strive for their own energy self sufficiency, free from dependency on other nations’ resources and commercial interests. Not one, but both nations are concerned about secure protection from nuclear threats within the region and to themselves. Not one, but both nations are concerned with what they deem and profess are their rights and needs to be influential players within the region.

The United States and Iran as well as the United Nations, and the European Union must accept that other items are linked to the issue of nuclear enhancement including matters pertaining to Israel, Iraq, Lebanon and Afghanistan. Clearly the menu is vast and complicated yet it can be fractionated in ways that permit all issues to be addressed systematically and thoroughly. Agenda development is the right and responsibility of both primary parties, not just one.

Sixth, serious conflicts seldom can be solved immediately or by force. The integration of patience and persistence draw adversaries into the process of productive negotiations.

Many times it is more fruitful to commence substantive negotiations by addressing items that are less pressing than main menu items in order to develop an incremental pattern of progress that can carry over to address the more difficult and complex matters. While at times tedious and exhausting, this is where, when and how the real muscles of negotiation can be exercised. Indeed, the shortest distance between the points of origin of any conflict and its possible settlement outcomes is rarely a straight line.

Perhaps within and between some Western cultures it is expected that problems or conflicts should be solved directly and immediately, and that professional diplomacy is little more than endless and ineffectual talk that leads nowhere. However, the study of history and conflicts suggests otherwise. For example, the US-Cuba missile crisis of 1962 was ultimately resolved diplomatically whereby the US removed its missiles from Turkey in exchange for Russia first removing its missiles from Cuba.

Seventh, a moral issue is at stake: If negotiations are perceived to be merely perfunctory and as a pretext to military action then the future credibility of international negotiations by any nation for any purpose will be greatly diminished. If the United States or Iran takes military actions without having pursued a strenuous and good faith effort to negotiate then that war will be perceived as having been avoidable, and the lives lost and blood spilled a horrible and unnecessary waste. No one in good conscience, certainly and especially the leaders of the United States or Iran, should tolerate that prospect.

In conclusion, the world expects both nations to act toward one another in mature, responsible and productive ways in order that the United States, the region, and the world at large will benefit by their fair, functional and durable agreements.

The International Coalition of Concerned Mediators is committed to bringing to bear on this and other conflicts the best practices of professional negotiators and mediators. While not every dispute can be settled, many can be. And, everyone is well aware that to increase the likelihood of a settlement a realistic, persistent and good faith effort is required. To date that effort has not been either sincerely or effectively pursued.


Biography
The International Coalition of Concerned Mediators (ICCM) is comprised of over 1000 leading professional mediators and conflict management professionals from forty-seven countries. ICCM’s website is www.concernedmediators.org.

The Conflict Resolution Research and Resource Institute (CRI) is a non-governmental non-profit organization specializing in preventing, resolving and managing conflicts in the United States and around the world. CRI’s website is www.cri.cc.

The Mediation Room

Mediation is a voluntary, non-binding process during which an impartial third-party, called a "mediator" or a "neutral," facilitates negotiations between the parties and assists them to make pragmatic, informed decisions to resolve the issues before them.
The mediator does not render any decisions on the merits of the dispute; instead, mediation helps the parties:
assess the perceived strengths and weaknesses of their position;
examine their needs and interests;
discuss settlement options; and
finalize a settlement agreement, if settlement is reached.

Because the parties themselves control the outcome, any resolution will be voluntary and mutually agreeable to all. The mediation process therefore often results in unique and creative solutions that allow each party to walk away believing that their objectives have been met.

Why Choose Mediation?
Mediation often offers several significant advantages over the traditional litigation process:
Control - Mediation affords the parties their only real chance to control the outcome of the litigation. The parties are only required to negotiate in good faith and only reach a resolution when all sides voluntarily agree to any proposed settlement. Because they are not formally bound by the strictures of the law, the parties are also free to discuss, and agree to, creative solutions and remedies that a court would not be able to grant. After reaching a settlement at mediation, each party should leave with the belief that they worked out a satisfactory solution. At a trial or arbitration, the judge, jury or arbitrator will ultimately make a decision as to the merits of each side's position, and render only such judgment and award as the law will allow. More often than not, a judicial award leaves one party feeling completely dissatisfied.
Confidentiality - Mediation is a strictly confidential process. This has two benefits to the parties. First, the matters discussed in a mediation, cannot be introduced as evidence or otherwise used in any subsequent legal proceeding. Free from the concern that their willingness to compromise might be used against them later, the parties can discuss candidly the strengths and weaknesses of their position, their underlying interests, and options for settlement. Second, the confidentiality of the process is especially useful if the subject matter of the suit is particularly sensitive. During litigation, the matters revealed in depositions, hearings and at trial, are typically a matter of public record.
Communication - A significant number of disputes involve parties with a preexisting and sometimes on-going relationship - whether personal or business. Litigation tends to polarize the parties, entrenching their positions and shutting down the communication process. With the guidance of the mediator, the parties are encouraged to communicate in a more effective manner. This may lessen the tension and misunderstanding that previously impeded negotiations between the parties.
Cost - The professional fees charged by the mediator are considerably less than the direct and indirect costs incurred during an average civil case. In addition to direct costs such as legal fees, witness fees, travel and document reproduction costs (which typically total in the tens of thousands of dollars), the parties will also incur the indirect costs caused by the interruption of their business (or personal lives) while they or their employees attend depositions, hearings or meetings with their attorneys. The U.S. Attorney's study found that attorneys that mediated their cases saved 89 hours in attorney and paralegal time and over $10,000 in costs compared to taking the matter to conclusion at trial.
Time - A successful mediation results in a much shorter process than litigation. A five-year study on the use of mediation by the U.S. Attorney's office showed that the average mediation lasted only seven hours, and resulted in a settlement in 63% of all cases. By comparison, it will likely take over two years for the average general civil litigation case to reach a conclusion at trial. Mediation provides an opportunity for the litigants to resolve their dispute in a timelier manner, allowing them to get on with their personal or business lives.
Flexibility - In the event the parties do not reach a solution during the mediation, they are free to continue the dialogue at a later date, or continue forward with the litigation process. The process is only binding if the parties reach an agreement.

Because the parties themselves control the outcome, any resolution will be voluntary and mutually agreeable to all. The mediation process therefore often results in unique and creative solutions that allow each party to walk away believing that their objectives have been met.

What Makes a Successful Mediation?
It is difficult to determine whether a mediation is "successful" merely by results. Most would consider a mediation that results in a settlement successful. Sometimes, however, the parties may decide that the legal issues involved are best left to the court to decide. That does not mean the mediation was "unsuccessful." What makes both scenarios examples of successful mediation is that the parties engaged in meaningful discussions, undertook some critical analysis of both sides of the dispute and reached an informed decision as to how they wished to proceed.

Parties that want to maximize their chances for a "successful" result should come prepared to do the following:
Engage in candid, honest discussions about the strengths and weaknesses of their case - Often, after living with a dispute for so long, parties (and their counsel) become increasingly convinced of the strength of their case. The parties must be willing to think critically about their position, and view their case as though looking at it through the eyes of the other party or the jury.
Remain flexible and consider alternative solutions to the dispute - In most cases, a court of law is only able to award monetary damages. At mediation, the parties can craft original, creative, and imaginative solutions that meet their needs and interests, but would otherwise be outside the court’s range of legal remedies.
Set aside sufficient time for the mediation and remain patient - While mediation is considerably faster relative to the months or years a case may take to come to trial, the process may take several hours. The parties should set aside a full day to participate in the mediation and remain patient while the mediator facilitates the discussions.
Bring someone with full authority to settle the matter - It is very important that all of the persons with decision-making authority attend the mediation. Not having a necessary decision maker at the table limits the chance of settlement. It may also appear that that party is not negotiating in good faith.

Mediation may not be right for every case and requires both parties to make a commitment to the process of mediation and display a willingness to compromise to be successful.

Thank to CKAMediation to provide this valuable insight into the basics of mediation.
Be sure to be following these series of minute briefings.
The upcoming topic will be dealing with intercultural mediation ... right here .... on this blog!