t

CIIAN		NEWS
Newsletter of the Canadian International Institute of Applied Negotiation

to the CIIAN Main Page
Register your feedbackelectronically or request a copy of our most recent Newsletter

In early 1988, I wrote an article entitled,"Institutionalisation Is The Future" for the Fourth"R", the newsletter of the American organization forconflict resolution in education (then known as NAME).

I argued at the time that "as long as ouraudience hears the word 'alternative' and as long as the programsare add-ons to the regular curriculum, ADR had little chance ofdesired impact in schools". In short, the strong directionat the time was that unless ADR was adopted it would remain onthe fringe as an alternative to mainstream mechanisms for dealingwith disputes. As well, we believed it to be a "better"way of decision-making.

Some years later in 1996, Concorde won a highlycontested contract with Justice Canada (a department which can besubstantially credited for the embracing of ADR by the federalgovernment) for the training of selected public service employeesas mediators in cases of alleged harassment under the TreasuryBoard Policy. My involvement during these two two-week trainingssharpened other experiences that, coupled with discussions withcolleagues in the field, led me to conclude by the Spring of 1997that an alternative to Alternative Dispute Resolution was needed.

What happened? Why, in the late 1980's and intothe 1990's, were there calls for the integration of ADR into thepublic and private sectors? Why a few short years later, werethose early into the field questioning the institutionalisationthey were assisting to happen? As a friend of mine has oftencautioned: "Be careful of what you wish for; you may getit!"

For many who were attracted to ADR, it was thepotential for social justice that drove their involvement andcommitment. They saw the opportunity for the responsibility fordisputing to return to the individual and to the community level- empowerment so that conflicts and disputes could be embraced atthe grass roots level. They saw the potential of structuralchanges to address the power imbalances, to address the exerciseof power in Canadian society and beyond that produces injusticesand inequities for many citizens. What seemed to be happening asADR was more and more embraced was the disappearance of theprinciples upon which the essence of ADR rested. Itscost-effectiveness; its efficient use of time; its potentialmutually satisfying results, and dare I say, its potential forconflict containment were its main attraction.

I have come to realize that for social justiceto be the focus of our work, we must think in terms of conflict"revolution" where the purpose to conflict is one ofbringing about change, particularly at the structural level. Iwill expand on the theme in another newsletter. Here, I want tofocus on the institutionalisation of ADR over the past number ofyears. As Kevin Clements, President of International Alert,pointed out in a recent article, ADR is not aimed at changingbasic social institutions but simply making them work better. InCanada, we have the luxury (through insightful efforts by someover the past 150 years) of sound institutions that today servethe majority of our citizens reasonably well. Therefore, theenhancing of these institutions is the primary purpose served bythe integration of ADR, a worthwhile goal in itself. One that ADRpractitioners can be of assistance in achieving.

Let's have a look. As suggested, the lastnumber of years has witnessed ADR being implemented into thepublic sector and to a lesser extent the private sector at anever- increasing pace to supplement rights-based mechanisms ofdisputing. The public sector has embraced ADR for two reasonswhich can be expressed as follows: as a cost effective means ofsettling disputes resulting in more satisfactory outcomes for theparties concerned. For example, the average cost of aninvestigation ranges from $30,000 to $50,000 dollars with theaverage mediation ranging from $5,000 to $7,000 and many two-party mediations in the $2,000 range. As the Recourse Branch ofthe Public Service Commission discovered their Appeals Processwas used (in up to 70% of cases) as a means to bring forth issuesthat could not be addressed through their rights-based processthus resulting in disappointment and dissatisfaction by allconcerned. The Branch initiated an interest-based process, EarlyIntervention, to provide a mechanism through which non-appealableissues can be addressed.

Evidence of the growth of the application ofADR in the public sector and private sector can be demonstratedas follows:

- Conflict Management Office of Justice Canada(now expanded to a Conflict Management Office of the - FederalGovernment)

- Bank of Montreal - Small and Medium SizeBusinesses - Loans Mediation Program, Ontario

There are any number of other examples of ADRinstitutionalisation in the Federal Government, in provincialgovernments throughout the country, and in other sectors. Newinitiatives are being planned as this is written. Such growth wasdifficult to imagine a decade ago.

As I experience decision-making and disputingmechanisms in other countries, I conclude that it is our strongrights-based society that has provided Canada with the foundationfor the institutionalisation of interest-based processes. Theintegration of the two into a holistic approach remains ourchallenge as does ensuring that the potential of ADR is not lostin a rush for cost efficiency and conflict containment.
Returnto Top of Newsletter

Ottawa, May 30, 2000 - CIIAN/Concorde have,over the last year, continued their extensive involvement inpolicy and program evaluation, as well as in organisationaldiagnostics and transformation. On the international scene,CIIAN's design and direction of the evaluation of the MacedonianConflict Resolution Games Program, and follow-up activities inthis stream, have demonstrated our expertise in determining theviability of international development programs and in assistingthe implementers in ensuring sustainability throughinstitutionalisation.

In early 2000, Concorde designed and carriedout a systematic review and evaluation of the Early Interventionin Appeals Program of the Recourse Branch of the Public ServiceCommission. This evaluation of a nation-wide ADR FederalGovernment program is believed to be the first of its kind inCanada. This evaluation yielded much appreciated insight into theoperation of the program and into the adjustments and additionsrequired to ensure viability and sustainability, and high-qualityservice to civil servants, unions and managers. These assessmentsand insights generated 25 key recommendations charting a coursefor the Recourse Branch to enhance the viability of thispromising ADR initiative. The following is an excerpt from theevaluation report:

"Still in its infancy, the EarlyIntervention in Appeals Program is generally well received by thepeople who have experienced it, and is showing considerablepromise. When conducted proficiently, early interventions work.And they are seen to work by the parties at the mediation table.They serve to clarify the issues, and to distinguish betweenissues germane to appeals and contextual and underlying issues.They serve to reconnect people, provide them with a basis onwhich to recreate a positive working relationship and areconducive to a healthier working involvement. They can lead tothe resolution of longstanding problems. Although they will notresolve systemic and structural problems in the organisation,they can be instrumental in flagging and circumscribing these andinforming the organisation on possible avenues ofintervention."

CIIAN/Concorde favour the participatory/transformative approach to evaluation design and implementation.This choice is grounded in the strong belief that evaluation mustserve more than to provide a report card on a given activity,although this of course remains one of its primary functions. Weview all evaluations as interventions, whether of the mosttraditional or innovative variations. Hence each evaluation andmonitoring activity must be designed with great care not to skewthe evolution of a given initiative or dynamic in ways which maybe detrimental to the citizens involved in the short, medium orlong term or contrary to the program objectives. It must providefor maximum participation by the creators, implementers andparticipants in the program.
Returnto Top of Newsletter

According to Bruce Kidd, Dean of the Faculty ofPhysical Education and Health, University of Toronto, "nomatter how well we conduct the sporting enterprise, some conflictis inevitable. "1

Sport organizations today typically have someform of policy internal to the organization in place for dealingwith conflict within the organization and the internal disputeresolution mechanisms used are generally successful. HilaryFindlay of the Centre for Sport and Law 2 estimated that, of allconflicts in sport, "perhaps only one in twenty ever reachthe political levels or are fought out in the media".3

There are obvious problems with resorting tothe media and the courts as tools of dispute resolution. Theill-will that is created by airing a story in the media may havea snowball effect and result in the exacerbation of futuredifferences, even minor ones, involving an athlete. Given theteam emphasis in sports, the distraction caused by negative mediaattention and/or litigation serves to drain energy and distortfocus from the task at hand. The Canadian Sport Council's ADRCommittee observed, since judges are frequently unfamiliar withthe unique environment of sport, decisions made with respect tosport may not be in sport's best interests.4 The fact thatathletes have found it necessary to resort to the media and thecourts for assistance in resolving their disputes suggestslimitations exist with the internal dispute resolution mechanismscurrently in place.

A key factor in the inadequacy of the currentstructure is found in the internal governance of the sportorganizations themselves. Hilary Findlay and Rachell Corbett ofthe Centre for Sport and Law, for example, suggest that sportorganizations at a not-for-profit level tend not to have policiesthat address issues that may arise; or if they do have policiesthe policies are incomplete, vague or contradictory; or theorganization chooses not to follow the policy or the policy doesnot fit with the culture, reality or resources of theorganization.5

The internal dispute resolution models ofnational sport federations are frequently exact templates of, orslight modifications of, the organization's policies on otherdiverse topics. On occasion, the policy template is borrowed fromanother sport organization and an organization may not fullyappreciate its obligations under such a "cookie-cutter"approach.

The development of an independent ADR processavailable to all participants in the Canadian sport system wouldideally offer a quick, reliable, independent, fair, co-operative, equitable, transparent and accountable mechanism ofdispute resolution for a wide range of disputes, includingcomplex disputes. Consistent decision- making would be one of thegoals of such a process. A national ADR system for sport couldclarify the responsibilities of the national sport system andnational sports organizations (NSOs) to athletes, coaches andNSOs. In balancing the relationships between the stakeholders anational ADR system could serve as a means by which to providesystematic recognition and protection of the rights of athletesin all areas.

As athletes' develop a greater understandingand awareness of their rights, and in view of the potentialfuture income from sponsorship that may be lost in the face of adecision adverse to the athlete, I anticipate that we will see anincrease in the use of the internal dispute resolution mechanismsof sport organizations. When these fail, it seems reasonable tothink that the media and the courts will continue to be optionsfor dissatisfied parties. The challenge is to find a credible,accessible alternative that will permit national sportfederations, and their respective athletes, coaches and others,to resolve their disputes and to "Just Do It!" - focuson being the best that they can be.

In January 2000, the Secretary of State forAmateur Sport, Denis Coderre, announced the development of anenhanced National ADR system and support structures for use bynational high performance sport communities. These communitiesconsist of National Sport Organizations, their athletes, coaches,volunteer and professional membership, officials andadministrators, as well as Major Games organizations. An ADR WorkGroup has been tasked with producing a report detailing optionsfor the development of a national ADR system and supportstructures for use by the national sport community by the end ofMarch 2000.

Susan Haslip is presently completing her LL.M.at the University of Ottawa and anticipates being called to thebar to practice law in Ontario in February 2001.

The article is a summary of a paper"Levelling the Playing Field: A Consideration of the Needfor A National ADR System for High Performance Sport inCanada".

The ADR work group has now completed its finalreport. If you want more information, please contact Susan at(613) 820-8055.

Endnotes for S. Haslip's article
1 Transcript of NewsConference with Secretary of State for Amateur Sport and othersin Toronto on January 5, 2000. (Toronto: Media Q Inc., 2000).
2. The Centre for Sport and the Law has operated an ADR programfor amateur sport in Canada since February 1996. The Centreoriginally anticipated only dealing with disputes arising in thecontext of high performance amateur sport, and thus expected thatits clients would be National Sport Organizations. While this isthe case, the Centre also has provincial sport organizations andclubs as clients.
3. H. Findlay, Telephone Survey Regarding a National Sport A.D.R.Network, Final Report to the Federal-Provincial/Territorial SportCommittee: December 9, 1998 at 10.
4. ADR Committee, Report of the ADR Committee (October 1994) at1.
5. R. Corbett and H. Findlay, Good Policies, Good Governance: AGuide for Sport Organizations (Ottawa, Centre for Sport and Law,1999) at 38.
Returnto Top of Newsletter

"Good heavens," you might be thinking if you haveparticipated in the CIIAN certificate program in thepast."Now what are Ben and Flaurie and their esteemedassociates doing in those courses? When I went, I enjoyed theexperience and found it valuable in both my personal life andworkplace. I felt enriched and was encouraged to interact withthe material over time so I could feel comfortable and could makesense of the theory presented in each class. Now they feel theyhave to survive?"

Relax! (Time out.) The program has not been changed. But,there were a few of us enrolled in the Summer Institute1999, inOttawa, that did take four courses in a row. That's right. Sixdays on with Sunday off; then, six more days in classes. In twovery intense weeks, I learned and dreamt about negotiation,mediation, conflict analysis and system design.

So, the change was not substantive in content or process, butin timing. Instead of having one slice of the pie and digestingit, I was a bit greedy and ate the whole pie at once. You think Ideserve a small bout of indigestion? Perhaps, but "itdepends" (thanks Evita).

The material presented does work in a concentrated session.Because the elements of ADR have a natural progression and thecourses are presented in that order, the spiral of learning isenhanced. For twelve days, my mind was focused on the principlesand even the appropriate language of this discipline. As thesewere still in my conscious mind, I could follow the threads ofVoice, Empowerment, Interests, Rights, Commitment, andAppropriateness through Negotiation, and Mediation, and on intoSystem Design. Instead of looking at each piece of the jigsawpuzzle separately, I was able to see how they fit together intothe whole. That enabled me to quickly see where I wanted to be inthis discipline. Perhaps, upon reflection, for anyone doing fourcourses in a row, it would make sense to do Negotiation,Mediation, the elective and then Systems Design. Certainly, arecommended book list distributed well in advance of the sessionwould be great help in preparation.

So much for the theory, but what about developing skills? Ican't say that in twelve days I have become a professionalmediator C in fact, myfamily would like not to be the guinea pigs for a short while C but I have seen the expertsat work. I know what is good mediation. I have a benchmark. Mynext steps are to find a setting where I can receive mentoringand practise.

Those of us who were taking several courses quickly becamequite humble. Recognizing the need for skill development, oneclassmate (thanks Frances) has taken on the task of calling forreunions of those of us who want to get together to hone ourskills and reflect together on our experiences in the real world.Perhaps, it would be a good idea to encourage a professional tojoin us for the evening to keep us on an appropriate path.

Yes, I survived and I had a good time doing it. The dynamicsof the class were interesting. In Mediation, 75% of the classfrom Negotiation carried over. We did try to encourage thenewcomers, but we knew each other a little and were beginning towork as a group. Introductions were not necessary and theelements of trust were evident. Jokes prepondered. Diverseknowledge and experiences were readily shared by students, addingto the dynamics of learning. By day six, I could see how someclassmates had synthesized the concepts that were presented andwere shifting some of their views.

In Systems Design, 50% of the group was still there. This wasof great comfort, as I thought I had jumped off the high divingboard. When I looked around, though, I could hear othersexpressing feelings that were somewhat the same. As we had bondedand did feel safe in expressing our thoughts amongst ourselves, Igathered strength to tackle a seemingly incomprehensible subject.

By day ten, in the Advanced Mediation elective the survivorswere about 25 % of the group. I think it would be fair to saythat not one of the survivors felt they were really ready foradvanced mediation. About as much as I could verbalize aboutmediation was "Do no harm!" I really knew more,Flaurie, I just couldn't verbalize it. However, Gordon took onthe challenge of integrating the two groups (the survivors and agroup from one federal government department) and kept usmediating for another three days. True, the survivors were tiredso that our response time was dead slow. In fact, it would nothave been inappropriate for Gordon to surmise that we thought wewere in Advanced Meditation. But we were into it! The theory madesense. Yes, this was a little different style of mediation, butwe could fit into the whole picture. Coaching was so beneficial!

Although there was now a minority in the class, the survivorsdid exhibit cohesiveness. Interestingly, all the survivors wereback promptly after break . We sat together. It seemed quitenatural to lunch together and much of the break time was used toconsult on the course material. If it was to be predesigned sothat all participants were doing the courses at once, the groupwould be able to use lunch time and I'm sure willingly someevenings, as well, in group discussions. Storytelling evenings bythe teachers during the two weeks would be very valuable. Who canever forget Mark, the truck and the ferry? We could negotiatewhere to go for dinner. Some nights, mediation might be required.Near the end, it might take an arbitrator.

Another interesting dynamic was getting to know ourselves andeach other as negotiators and mediators. The feedback I receivedfrom someone who I was around for twelve days was that I was a"wolf in sheep's clothing". Other than the fact that hewas dead wrong (I was wearing cotton), it was such valuablefeedback to see myself as another saw me with respect tonegotiation and mediation. Upon reflection, I can see he's quiteright. Quite insightful and certainly not possible in just athree-day course.

It's time now for a true confession of a survivor. Myreflective journal is not up to date! In an intense course, itwas almost impossible to dredge up the energy every night to jotdown thoughts in any sort of meaningful manner. However, I didnotice a conscientious classmate who started it at lunch everyday. (Cheers, Mike!) Perhaps, twenty minutes could be scheduledat the end of the day in class for journal entries in a two weeksession. (But, Ben, I want you to know by the time you get thisarticle my journal will be up to date! ) However, I will carry onwith entries as I pursue my next steps.

As a final note from a survivor, it seems that I now have togo to a counsellor as I'm showing signs of a multiple personalitydisorder. Sometimes I'm Sally Soprano, then occasionally I havedelusions of grandeur and think I'm King Retbo of Chiboulaka.Some days I'm Luciano, a really macho Portugese guy who feelshe's losing his daughter. There are many more, but today is themost confusing. One minute I'm Harvey, a Jew, at the Mazal TovConfectionary and the next minute I'm Billy, a Christian, at theFoursquare Fast Foods. Intensive role playing does haveconsequences! In a concentrated series of courses, it might bebeneficial to have a little less role playing and perhaps moredemonstrations.

My counsellor thinks I'll make good progress integrating mypersonalities. I just have to keep away from role playing for awhile. My optometrist still thinks it's a little unusual that Ineed 25 lenses with which to view the world. (However, he's quitehappy as it means more business for him).

Seriously, thanks again to everyone at CIIAN for theireffective and very professional training in ADR. You created anenvironment where we learned very rapidly. We certainly have aview of the whole discipline, know how the pieces fit together,recognize where we are skill-wise and where we want to be. We'reready to take our next steps in this evolving discipline. We willremain curious and build on the foundation so thoroughly groundedin the CIIAN certificate program. It was a pleasure to meetprofessionals who practise the principles they teach.

I started my mediation business in September, 1998. Instarting my own business I left relatively secure employment asan Employment Counselor with a public service organization andmoved from a smaller centre to a large city.

What prompted my career change? The organization I had workedfor was a partnership of nine community and public serviceorganizations drawn from three levels of government. Much of myday passed in attempting to sort out conflicts between my peersand colleagues struggling to define or comprehend their roles. Bycomparison my work in assisting clients in making career choicesand changes was relatively easy and almost always enjoyable.

What has been my experience so far? To rephrase the Chinesecurse, " I havelived in interesting times, " I am not aware of any manuals setting out the ninety-five easysteps for establishing a mediation business. As a result the pastnine months have consisted of trial and error (with possibleemphasis on the latter) and some successes too.

I believe that effective marketing is fundamental to thesuccess of any enterprise. Marketing is comprised of manyactivities, but probably the most important to a small, personalservice business is networking and building relationships withorganizations and individuals within the community. Theserelationships have recently borne fruit by producing a number of"word of mouth " referralswhich have led in turn to agreements to mediate. Networking hasproved to be invaluable even though it has consumed a major partof my business development effort.

Next, I believe that an effective mediation practitioner mustdevote considered effort to ongoing professional development andtraining. My initial training consisted of several mediationcourses taken through university extension programs, which wereapproved by AMIO. In addition, I was fortunate to be able to takethe Fall Institute training through CIIAN. Finally, mydevelopment has continued through participation in seminars andworkshops organized by local and regional mediation associationswhich I am a member.

In addition to augmenting my initial training in mediation, inthe past nine months I have engaged a Business Coach, initiatedand conducted my own survey of attitudes towards and use ofmediation by major employers in my area. I have also publishedseveral articles and established a quarterly newsletter and havespoken at meetings of business organizations as well as on localradio. Free publicity (of the positive kind) is welcome too. Mybusiness has been profiled in a local business monthly magazineas well in a half-page article with colour photo in a largecirculation newspaper! To gain additional experience I havevolunteered with a Community Mediation service and with aCommunity Justice Circle providing alternative justice measuresin the region. To date, I have been engaged in five paid and fivevolunteer mediations.

Through the " interestingtimes " , the hitsand misses, my experiences in developing my mediation practicehave been rewarding on many levels. These experiences continue tomotivate me to strive for more self-development within the field.I believe I have demonstrated the potential to be an effectivemediator. There is still lots to learn and I look forward tocontinued learning and experience in the richly varied practiceof ADR. Returnto Top of Newsletter

"Win thatAgreement: of a Real World Mediator" by Ben Hoffman, President & CEO

When Flaurie Storie and I teach mediationtogether we get this running gag going about West Coast"laid back" mediators and East Coast "HenryKissinger" mediators - two extreme stereotypes that we useto demonstrate the range of mediation styles in practice. The"West Coast" type mediator is Rogerian, non-directive,using a therapeutic type of mediation based on "trusting theProcess". The "Henry Kissinger" types use carrotsand sticks, they "intervene" in disputes, they aredirective and see much of the problematique of conflict throughthe power lens. Generally, I’m type-cast as Kissinger andFlaurie and Gordon Sloan are type-cast as West Coast. Both aretruly stereotypes and I hope that our west coast colleagues andMr. Kissinger won’t take offence.

Actually, the Institute tries to expose Certificate Programcandidates to a variety of approaches and styles of mediation. AsPresident, I’m proud of the extremely high quality Facultywe have and of our willingness to be open to new and differentideas and approaches. Thus, we should know about evaluative andtransformative mediation, among others, and each of us in the endwill develop our own personal style as mediators. In my view,there is no universally correct approach or style: conflicts, thepeople embroiled in them, and mediator personalities are all toocomplex to assume that there is one best way to mediate.

In this spirit, and to stimulate more discussion among CIIANFaculty and readers, I take issue in this article with theworking assumptions of mediation which are generally associatedwith its popular form. The "declared" approach and whatreally happens (or needs to happen), in my view, to mediateeffectively in tough conflict situations is explored in a frankand candid way.

Am I saying that mediators shouldn’t learnthe mediation process as we teach it? No, not at all. Am I sayingthat I don’t use techniques such as reflecting, reframing,summarizing? No. Am I saying mediation is simply motherhood andanyone can do it? Definitely not!

Rather, the reader is invited to enter theworld of conflict as I inhabit it, a world where power is acentral element, where the mediator is active in driving for anagreement because the goal of resolution is itself the primemotivator of the mediator, and where what separates the artistfrom the technician, the master from the student, is a complexconfiguration of clinical skills, personal attributes,intellectual strengths and life experience.

Not everyone can be a mediator, althougheveryone provides mediating functions from time to time. We helpothers communicate more effectively; we help them identify thereal issues in disputes and so on. Being a Mediator, however, issomething in its own right; it is not an "add on" toanother established competency or professional designation. This"something in its own right" is what inspires theInstitute’s Certificate Program and it is our reason forcreating the designation, Registered Practitioner in DisputeResolution.

Because much of what is stated here may betreated as heresy by all those in the West coast camp, my view ispresented as a confession. For what it’s worth, I confessthat when I am at my best as a mediator, I practice a hereticalform of mediation. I appear to be motivated by drivesantithetical to the field of conflict resolution (like the desireto win); and I act when doing my clinical work in ways that goagainst the grain of generally espoused theory and practice inmediation.

Yet I am much more often than not an effectivemediator, and I take seriously my failure to bring my clients toresolution. I want to "win that agreement"!

MY FIRST CONFESSION: It is when thepower imbalance between parties is obvious, or when the valuesheld by one party greatly diverge from the ones held by myself,or when the obstinance of a party is clear and vexes me - it isduring one these extreme occasions that I realize I am notneutral. But I "act" neutral. I try to hold myself incheck; I have developed a "clinical face" that is likethe proverbial "poker face" but customized to the fitthe role of the "neutral". I confess I am not neutralin these situations and even when I’m in less extremesituations, in cases when the oppressor is not across the tablefrom the oppressed - I see too that in these situations that I amnot neutral. I design the process, create the setting in manyways, shape the social-psychological moment. I confess I am notneutral.

MY SECOND CONFESSION: I havedecision-making authority and I use it. I determine who will givetheir opening statement first, what factual, emotional orprocess-related comment or inflection should be picked up andattended to in the discussion (if one or both of the parties havemissed it and I decide it is significant to progress) - whereprogress itself has a whole set of values and descriptors that I(in addition to the parties) have assigned to it. I confess I amgiven decision-making authority by the parties as they enter theprocess, as they go through it, and at the end - for example whenthere are issues such a wording an agreement, perhaps wherelanguage is key and the precise choice of a phrase or thedecision to de-emphasize a delicate point is made by me.

MY THIRD CONFESSION: I have alreadygiven examples of how directive I am; all with the implicitconsent of the parties, whose consent is sometime evident in onlythe fact that they choose to remain at the table. They may notlike the what that is implied in how I direct them; but they havegiven me a chunk of their franchise over self-determination and Ibelieve they actually expect me to provide direction. And theydon’t want or need to be consulted at each point along theway! They are in trouble, they are in pain, they most likelythink the other side is malicious or mad, or both - and Irepresent sanity, through structure, direction and by doing andbeing these things that I confess.

MY FOURTH CONFESSION: I facilitate,yes, but I confess that I do this by confronting, challenging,providing reality checks, and digging right in to the heart andsoul of the people and their conflict. Nobody gets off the hookwith some comforting phrase like: "I’d like to do aprocess check: how does everybody feel about where we are?"I know darn well in some circumstances they feel terrible, wouldlike to avoid, pack it in, run for the hills!

MY FIFTH CONFESSION: Sometimes Ithink this is my greatest sin, based on what I hear spoken bymediators. They say: mediators should not offer solutions to theparties. I do! I confess that occasionally, when all else hasfailed - when the parties are stuck and I believe that theyreally want to move forward, I will (in caucus or at the table ifthe mood is right) suggest some potential solutions that willaddress the interests of the parties as I have understood them.Of course, whether and how the parties move on my proposals is upto them.

MY SIXTH CONFESSION: Now I seeI’m really bad! Because we are told that mediators do notnegotiate with the parties. I’m sure I do. First, I think ofnegotiation as the art of persuasion. We try to influence othersto do things that we want them to do - sometimes for their owngood. So, I indulge in negotiation during the stage of gettingthe parties to the table. I inform them of the process and do thegood things that good and proper mediators do. But I also remindthem of their BATNAs, and I try to persuade a reluctant party toenter into mediation. It’s better, I say, than litigating,or warring - "at least, give it a try" I say. And Ithink I negotiate with them about some process design issues. Idon’t just say, "Hey, so here’s this empty shellwe call the mediation process - do what ever you wish." Forgoodness sakes, I’ll have a lot to say about the shape ofthe table, some basic ground rules, what might make sense aboutthis and that. And in the heat of the negotiations between theparties - I’ve tried on countless occasions to bepersuasive. I’m guilty of encouraging, enjoining, engaging,persuading parties to consider the other side’s point ofview; to offer a proposal that is meaningful (goes to interests)rather than merely meeting a position; of considering theconsequences of behaviour.

MY SEVENTH CONFESSION: This is themother of my discontent. The reason I transgress against theoryand declared practice. For it is said: Mediators are impartialwith respect to the outcome of mediation. Well, I’m not! Ata profound level I’m partial - partial to peace, toresolution, to healing, to an outcome that, ideally, has specificqualities. Mediation, for me, is peacemaking. It is notvalue-neutral. The Peacebuilder, the Peacemaker, the Peacekeeperare partial to peace. We are not just traffic cops, ortechnicians of process technology. I know this for a fact: whenlives are at stake and my purpose is to help people come to anon-violent resolution of their conflict, I am partial to peace.Maybe that is why I sin. Do you? Return to Top ofNewsletter

Some LessonsLearnt: The Peace Process in byFlaurie Storie, Director, Special Programs

Rt Honourable Dr. Marjorie (Mo) Mowlam, Secretary of State forNorthern Ireland played a dominant role in the peace process thatlead to the Good Friday agreement, April 1998. Dr Mowlam was akeynote speaker at the European Conference on Peacemaking andConflict Resolution in October 1998 held in Belfast. She wastasked with the challenge of reflecting on lessons learnt thatmight be of some assistance to others involved in peacemakingefforts in conflicted societies.

True to her reputation for humility and straight forwardness,Dr. Mowlam questioned whether the actions in Northern Irelandcould serve others and indicated she did what made sense to heras the process evolved. At the same time, she offered ninefactors upon which she has reflected and believes played a rolein the eventual outcomes of the Northern Ireland peace process.Dr. Mowlam posits that:

1. There is a need to focus on many levels at the same time.For example, the process involved amongst others, externalvisitors (eg. President Clinton), involvement of European Union,partnership of 26 District Councils, and women groups - allfocusing their efforts at different sectors.

2. The process required the building of confidence and therebuilding of it on a ongoing basis. From Dr. Mowlam’sperspective, failure just wasn’t an option.

3. Time and persistence were factors. The constant"working at it" over the years was crucial. Also,attrition of some of the very negative forces was helpful.

4. Momentum and reflection are both required. For exampledeadlines are necessary to help structure potential movement, yettime for reflection and digestion regarding proposed movementsmust be balanced with this.

5. One must deal with the underlying factors that lead peopleto do what they did. For example, structural factors that haveproduced inequities. Simultaneous initiatives like the HumanRights Commission, the Inquest concerning Bloody Sunday, and theCriminal Justice Commission were instrumental in this regard.

6. Macro and micro issues must be addressed. Focus on thelives of people within the community (must be made bearable) atthe same time as attention is being given to the peace talks.

7. One must be ready to take risks; to expect the unexpectedand be able to cope with whatever comes at you. When Dr. Mowlamwas told that the prisoners did not believe her, she visited themin The Maze.

8. It is important to draw on whatever expertise exists andyet at the same time to go with one’s intuition. Shesuggested that we are often stopped by the "boulder in thestreet". Yet, it we go around it and look back.... itdoesn’t look so big.

9. History is important and can’t be ignored. At the sametime, you can’t live in the past but rather must move on.

Summer, 1998)
By Audrey Nhlabatsi, Deputy High Commissioner, Kingdom ofSwaziland

The conflict situation in Swaziland is very complexbecause customary laws work parallel to civil laws.Unfortunately, customary laws are not written down or coded. Theyare being passed on by word of mouth from generation togeneration. It has been said many times that the Ministry ofJustice and Constitutional Affairs should start coding theselaws. In order to be able to resolve a conflict, one has to knowhow far customary laws go and at what stage civil laws take over.

Conflicts in Swaziland are very diverse. There are landdisputes between chiefs, employer / worker disputes and politicalconflicts. All of these are dynamic in their own way but the endresult is that whatever happens to one group has ramificationsand spill-over to whole nation because the country is very smalland citizens are interrelated. A worker in the South of thecountry have a relative in the North, East and West.

Land Disputes
Chiefs allocate land to citizens on behalf of the King whoowns the land in trust for the nation. This land is provided forhousehold needs and passes from one generation to the other. Thechiefs are not paid for doing their national duties.

Disputes among chiefs are on the boundaries of theirchieftancy and at times are about who the rightful chief of thearea is.

Boundary disputes have become so volatile that they affect thedevelopment of the country because some chiefs share developmentfacilities such as schools, clinics, roads and rural developmentcentres. If there is a dispute between chiefs who share aboundary, the citizens cannot cross over to share facilitiesbecause of the hostility. The chief who has the shared school inhis area might bar the subjects of the other chief from using thefacility.

Also if the dispute is about the rightful chief of the area,this divides the subjects with the result that they engage inphysical fights which end up in a court of law. There is a hitch;the group that wins the case in such fights becomes the ruler andthe losers of the case become unprotected by the laws of thecountry and subsequently take the law into their own hands.

There was a Boundary Commission that reviewed the boundariesof chieftaincies and its recommendations were published but thechiefs did not accept them. So this issue still needs to bere-visited.

The powers of chiefs are found in customary laws which need tobe coded. Chiefs are appointed by the King after being presentedby the local councils of that chieftaincy. Eligibility isdetermined by looking at issues of who is the heir apparent andrightfulness to the chieftaincy. The Swazi National Council whichis the body that advises the King on customary and traditionalissues, then sends a delegation for the endorsement of the chiefof the area. At times the disputes come when there was regency inthe chieftaincy, an elderly uncle holding for a young chief. Theconflict comes when the regent appoints one of his sons as chief,and not the heir apparent.

There is a need for a traditional mechanism that would reviewthe choosing of the heir apparent and his/her powers over thesubjects in relation to sharing the boundaries.

Fortunately, His Majesty King Mswati III, in his speech fromThe Throne, when opening the 5th Session of the 6th Parliament ofSwaziland on February 13, 1998 stated that there must be "areview of the Kingdom's Land Policy" so as to have a clearand balanced policy regarding land tenure and ownership.

It would also help to have customary laws coded so thatsubjects can not guess or formulate their own.

to the CIIAN Main Page
Register your feedbackelectronically or request a copy of our most recent Newsletter

Return to the CIIAN MainPage

to the CIIAN Main Page Register your feedbackelectronically or request a copy of our most recent Newsletter

Return to the CIIAN MainPage

to the CIIAN Main Page
Register your feedbackelectronically or request a copy of our most recent Newsletter