Mediation and Insider Mediation
Mediation: what is it?
To mediate according to the New Oxford American Dictionary is to ‘intervene between people in a dispute in order to bring about an agreement or reconciliation.‘ It is concerned with work between people in conflict, and it is centered in bringing about an end to hostilities.
Social systems are characterized by the interaction of multiple groups acting in pursuit of their needs and interests, at many levels. Social life then comprises the management of multiple interactive interfaces. Within organizations, or between groups within nations, or between nations it is the same. The work of mediators is at these interfaces.
One definition of mediation is “a process in which parties in conflict voluntarily enlist the services of an acceptable third party to assist them in reaching an agreement on issues that divide them” (Nupen 1993, p39). However, in many instances the process is no longer voluntary – certain disputes are more or less forced into conciliation and arbitration processes for example by courts, so the voluntary dimension is absent. In addition, not all parties can actually choose their external, this is for example true in most high international political conflicts or in mediation related to international organization such as the UN and the OECD. So therefor we use a simpler more open-ended definition. Mediation is “a form of third-party intervention into disputes, directed at assisting parties to find their own mutually acceptable settlements” (Anstey 1993, p1).
As such, mediation is a tool for cooperative decision making. A mediator helps to overcome differences between conflicting parties that are negotiating on behalf of their own interests. In essence, negotiation is a communication process between parties with conflicting and common interests with the intend to reach an agreement. Although that sounds straightforward, negotiations are much easier to discuss than actually do. When parties are not able to negotiate their differences between each other, they might ask the help of a third party to assist them in this process.
When a mediator enters a dispute between two or more parties (s)he is entering a strategic, often complex, power-driven interaction – whether it be at a collective level of relations, or interpersonal. The fact that the parties may be using negotiation or problem-solving processes in an effort to settle their differences in no way diminishes this reality. Thus, a key competence of mediators is to understand negotiation processes. What tactics are being used by the parties, are they helping or hindering solution searches, what are the boundaries of interventive strategy for a mediator in such exchanges? Mediation usually occurs within a wider frame of power relations. A mediator needs to understand such dynamics. A conflict may express at one point in a system, but that does not mean that that is where the solution lies.
Negotiation processes reflect a series of choices between parties: whether to negotiate (in the context of other process options); with whom; on what matters; with what timing; and using what approaches or methods. These choices by the parties shape the negotiation process – and therefore a mediation of that engagement. The mediator too must make choices in the mix on these issues. There is often an assumption that mediators intervene in negotiations that have been running for a period but have deadlocked for some reason. However, mediators may also help parties to engage in negotiations rather than seek legal redress or use more direct coercion.
When one looks at mediation processes at various levels – international, national, commercial, family, labour, community and interpersonal – it is clear that mediation may be voluntary or imposed by laws or agreements; may be carried out by a neutral or a third party with vested interests or by virtue of a prescribed role in a social system; and may perform his/her functions in a variety of ways. As the parties acknowledge the need for a third party to intervene, it is important to underline the objectives of a mediated negotiation process.
First of all, the mediator is there to assist parties to settle their dispute. Before starting with this assistance, the parties should show commitment to the process in order to allow negotiations to commence or to continue. The mediator guides the parties in dispute into defining the issues at stake more clearly. This broadens the understanding of each other’s positions, interests and needs, surfaces underlying conflicts, and may lead to a broader search for solutions/settlements. This also means that a mediator has to prepare parties to accept consequences of own actions and choices and that for the removal of obstacles one has to listen and bargain with each other. Another objective of mediation is the improvement of communications between the parties and the reduction of tension in the relationship, in order to eventually make sure that parties are able to negotiate without third party assistance. This is the overarching aim: to strengthen parties to resolve conflicts in the future without mediation.
In theory, the mediator has certain principles to adhere to that are essential for assisting the parties through their process. As mentioned above, parties commit themselves to the process although they recognize that most likely it will be tough. They show willingness to move and ideally they should be there voluntarily. Neutral mediators do not really exist. There is always something on the line for the mediator, if only reputation. However, objectivity in the way the mediator deals with the different parties is very important. Neutrality of the mediator should therefore be understood as that the mediator guides the parties through their process and does not impose decisions on them. Mediation gives them equal opportunities to participate in the negotiation process.
Impartiality of the mediator though is very essential, the mediator should never take sides and declares his impartiality during the process. When a reasonable doubt is raised in the impartiality of the mediator, one may lose the trust in his/her guidance. As such, all parties as well as the mediator should declare that they keep confidential the issues that are discussed during the process; they cannot share them with their external relations. Also, the mediator gets trust of the parties and consequently cannot report what has been told in secret by one of the parties without its consent to share it with others. Agree beforehand with the parties under which circumstances an exception to the principle of confidentiality can be granted, i.e. in the case of criminal acts or human right violations. Finally, a mediator should try to stay independent and should not succumb to the pressure by one of the parties to give up the mentioned principles during the process.
As not one conflicting context is the same this similarly applies to the way mediated negotiation processes are shaped. In complex political environments at Track 1 level ((inter)national level) mediators operate according to a clear formalized mandate that describes the mediator and its role, and the parties that sit at the table. In this formal setting the mediator needs to know what should be done and if (s)he is the right person for the job. The mediator has a mediation team that gives support and that looks into the complexity of the issues. However, such formal processes often originate from the efforts of informal and non-official peace processes, where insider mediators are involved and where a mandate is often based on a relationship of trust instead of on a formal, written text.
Insider Mediation
Individuals and organizations often act or can act as insider mediators within and outside formal peace processes. ‘As mediation can be defined as a “process of assisted negotiation between two or more parties,” wherein third parties help prevent, manage or resolve violent or destructive conflicts between different stakeholders, insider mediation processes preserve the essence of this definition: insider mediators also support negotiations – as well as a variety of other forms of dialogue – to prevent manage and resolve conflict. It involves credible figures, who are able to directly or indirectly use their influence constructively to guide parties through such a process.’ (UNDP) As such, they need to be able to manage dialogue, mediation and negotiation processes, recognize parties’ bargaining behavior; build trust and gain legitimacy; and know how to work towards win-win approaches.
An insider mediator can help to guide the parties through a negotiation process, even when they are members of the negotiating groups. ‘They are internal to the conflict, but can be able to use their influence to play a role – often largely behind the scenes or in undefined capacities – which directly or indirectly influences the trajectory of conflict in a constructive manner. They can work vertically and horizontally within their own networks at all levels of society to leverage their relationships, knowledge and expertise to bring about constructive change.’ (UNDP) Where negotiations are understood as a process of joint decision-making is insider mediation seen as in many forms assisting the parties in their negotiation and consensus building processes, at and outside the table. With an in-depth knowledge on the sources of the conflict, the parties involved and the issues involved, they need to strategically prepare for bridging differences between parties, deal with trust issues, questions of identity and relationship building, handle passive and/or active resistance in their own environment and design an effective and manageable process. A further understanding parties’ interests and group dynamics is key in choosing the right interventions at the right time.
This closeness to the parties might raise the question of partiality towards one of the parties, or of having stakes in the conflict. Can a insider mediator uphold the principles of a mediator? Awareness of such a trap is the first step for an insider mediator. As there are different forms of partiality, it is interesting make a distinction between them. The ‘relational partiality’, where a stronger relationship between the mediator and one of the parties may lead to trust issues with the other parties. Gaining entry and building report is a first essential step for the insider mediator to make. Other parties need to know who the mediator is. From the Harvard Negotiation Project one can learn that also mediators, just like negotiators, should ‘separate the person from the behavior or interests’, even when a mediator has a certain background or is biased, one can behave in an even-handed manner when being aware. The other two types of partiality, ‘process partiality’ which shows partiality in favoring parties in the process design, for example by not giving even speaking time, and ‘outcome partiality’, where the mediator formulates agreements in favor of one party, do play a lesser role within insider mediation processes. (Berghof)
Research on insider mediators’ roles shows different outcomes. You can describe an insider mediator as a person that could play different roles within the conflicting context, such as facilitator, conflict analyst, trust builder, trainer, coach, human rights advocate, and/or messenger (Berghof). When such a person plays a primary role in supporting parties in their negotiation process you could call them insider mediators. This shows that there is not one type of insider mediator and the different roles can be supportive of each other in assisting conflict parties through their process. The UNDP defines insider mediators as supporters of negotiations, as well as users of a variety of other forms of dialogue, in order to prevent, manage and resolve conflict in such a way that insider mediators are able to directly or indirectly use their influence constructively to guide the parties. Five five categories of interventions are recognized:
1) Identifying/providing entry-points by building faith in a process and paving the way for official dialogue to start. This is mostly done by influencing parties’ approaches towards the possibility of talks which may lead to change;
2) Building consensus/solving problems: being trusted can help to bridge divides and identify win-win solutions, also by applying structure or principles;
3) Direct mediation; when impartiality and legitimacy are recognized this may lead to direct mediation by an insider mediator;
4) Advocacy; a shift of public discourse towards peace can be brought by a insider mediator by connecting national-level processes to the public and creating momentum for necessary political will for agreements;
5) Early warning; insider mediators are able to play the early warning role as they are constantly confronted to conflict dynamics in combination with their wide understanding and knowledge of the context. This can lead to working with the necessary stakeholders towards prevention of escalation by brokering compromises before violence erupts.
Hence, Insider mediators’ roles can be labeled as ‘mediation’, ‘dialogue’ and ‘facilitation’ and can be used, according to where you are in the process, complementary to one another. (UNDP)
Preparation is key
Many insider mediators are already practice different types of insider mediation work, using the different roles in a blended way, without calling themselves an insider mediator or not having received any form of mediation training. However, specific skills and knowledge can help in providing the right assistance to the conflicting parties to overcome challenges between them. In training interactive simulations to improve participant’s skills, extended debriefings combined with best practices and interactive lectures to help insider mediators reflect on both the theory and practice of mediation, negotiation and dialogue has proven to bring insider mediators more experienced to the conflicting environment.
Resources:
- “Workbook of International Negotiation and Mediation”, The Clingendael Institute of International Relations, 2017, M. Anstey 2015, Nupen 1993.
- “Supporting Insider Mediation: Strengthening resilience to conflict and turbulence”, Guidance Note United Nations Development Programme, 2014.
- “Insider Mediators: Exploring Their Key Role in Informal Peace Processes”, Berghof Foundation for Peace Support and Dr. Simon Mason, 2009.
Written by:
Judith van den Boogert, M.Sc., Senior Training and Research Fellow, and Prof. Dr. Mark Anstey, Senior Associate Fellow, both working for the Clingendael Institute @2017.
