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Conflict Resolution in Mediation and
International Conferences.
By F.
Cardone
The problem of conflict resolution is certainly
one of the most relevant in the present state of affairs of the world.
With the destruction of the West/East division, the exacerbation of
North/South differences, and the challenges of globalization, which
further pressure Third World economies, new conflicts are arising, and
in some cases their solution is not met with diplomatic means, and force
is employed. Having worked at a small claims court in Brazil as a
lawyer, providing mediation for the involved parties in order to avoid
the use of the legal system, which, slow and bureaucratic, would not
provide a swift solution, and having worked as a diplomat in a number of
international conferences, I have noticed that there are ways to help
avoid a conflict, and I am convinced that, provided one manages to get
the parties to become reasonable, a more serious conflict can be
avoided.
It is vitally important, to me, that the
parties involved be present in the negotiation. In the case of persons,
they should be present, not only their attorneys. In the case of
sovereign states, the best conference is that which is held between
Heads of State. Diplomatists often do not have the power to make certain
decisions, and frequently assume that their government would not make
certain concessions, which, however, their government would make. The
same goes with lawyers - they are often prone to resist making any
concession, knowing that their client would probably win over that
concession in court, while the conflict could be solved easily, provided
some concessions are made. Furthermore, the negotiations should be held
'face-to-face', i.e. live, not through electronic means or in writing. I
have noticed very often that, while parties can be very hard in written
communication, in speeches, etc., they very often soften up while in
direct communication. Talking to another human being makes us
unconsciously want to be kind, or to please, and we tend not to say
certain things, and we can therefore make more concessions.
This leads to a second, essential aspect of
negotiation. The parties are always reasonable or, if not, some
preliminary talking will make them reason. It is extremely important to
make one party feel the arguments of the other - not 'understand', but
'feel'. In negotiations, there is always a 'strong' party and a 'weak'
one. The strong party can legally, or de facto, maintain its position,
while the weak party can only in the long run hope to achieve some
compensation. For instance, in a car accident the 'strong' party is the
culprit who doesn't want to pay, because the longer it takes for him to
be compelled to pay, the more time he will have to be prepared to meet
the payment, while the 'weak' party needs the money immediately, and is
therefore prepared to accept a lower payment. In territorial disputes,
the strong party is the one that holds the land - I am assuming here
that the weak party has some claim to the land, otherwise there would be
no point in discussing it. The strong party must be made to feel the
arguments of the weak, and the strong party must especially understand
that the weak party is desperate, and that, if no concession is made, it
will not be able to prevent the use of force or of the legal system.
Therefore, the mediator should try to make the strong party feel the
position of the weak party, and vice-versa. The weak party must also
understand that, if it expects a quick solution and concessions to be
made, it will have to forgo certain rights, it will have to accept a
partial solution.
An inherent part of the whole process is, of
course, the will to compromise. If there are underlying motives for the
dispute, and, in truth, a party does not want it solved - it wants the
conflict to achieve full scale, then the mediation will be a complete
waste of time. This is the case in certain international negotiations,
where one of the parties' raison d'être is the existence of the
'enemy', especially when this 'enemy' can provide a focus of national
mobilization and take away attention from more serious domestic
problems. In that case, unreasonable demands will be made, and, since
the negotiations will fail, the 'enemy' can be blamed for the failure,
and a further armed conflict will be justifiable in the eyes of the
population.
After direct contact has been made, and the
arguments of one party explained to the other, and after the mediator
has attempted to make one party 'feel' how it is to be in the other
position, a further step must be taken to solve the conflict. The
mediator must try to understand the core of the problem and expose it to
the other party. For example, let us take the conflict between Israel
and the Palestinian Arabs. Israel is the 'strong' party, who controls
the land, and the Palestinian Arabs the 'weak' party, who is trying to
enforce a United States resolution. What is the 'core problem' for
Israel? Enough land for a viable state and security (note that this
discussion is only as an example, and greatly simplified). What is the
'core problem' for the Palestinian Arabs? Enough land for a viable
state. These needs are not mutually exclusive. Israel can give enough
land for the Palestinian Arabs to manage a viable State, while
maintaining enough for its own viability, while the Arabs would renounce
the use of armed forces within their state, allowing only UN forces or
perhaps permitting Israeli bases in their land. Note that, as mentioned
before, this is a very rough example, and other factors must be taken
into consideration.
After the parties have been made to 'feel' each
other's position and that the core problem has been tackled, steps must
be taken to make sure the agreement is adhered to. While in domestic
legal mediation enforcement is not difficult - a guarantee such as a
promissory note, or a judicial deposit can be made -, in international
agreements thisis harder. The UN is the 'natural' organization for such
guarantees, but the problem of the nationalities involved may present a
problem - such as in the present Iraq/US conflict. A better solution
would be that the inspections be made by neutral country - e.g.
Switzerland - , or any country mutually agreed upon by the parties.
These are the basic guidelines for the solution
of conflicts in the legal and international spheres. In my short
experience, there have been no conflicts which were left unsolved, when
applying these guidelines.
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'Anger Punishes
itself'
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