LESSONS ABOUT MEDIATION FROM UN PEACEMAKING EXPERIENCE

Once the above hurdles have been surmounted and the facilitation/mediation process begins, there are a number of other challenges to be faced.

Identifying issues and agreeing on an agenda

Developing an agenda of key issues can be problematic since each party may want to include issues that the other does not wish to consider.

Ordering the agenda can also be prob­lematic. Some RSGs suggests that mediators should begin with the issue on which they think progress is most likely, to give a sense that the negotiations are progressing. Also because agenda items are usually linked, they propose that parties should be warned that issues will not necessarily be negotiated in a sequential manner and that it may be necessary to alternate back and forth between issues. Certain items inevitably come at the end of the process, for example, return of refugees or demobilization, disarmament and reintegration of ex-combatants. In some cases, the mediator may wish to put issues on the agenda that the parties may not think of themselves, such as human rights or verification (Arnault, 2001; de Soto, 2001; Vendrell, 2002).

Bargaining over positions versus reconciling interests

Broadly speaking, two methods of negotiation can be identified. The parties themselves typically view negotiations as a bargaining process,⁷ which merely transforms their existing power struggle from the military arena to the negotiating table.

The second approach to mediation, adopted by most RSGs involved in peacemaking, is to attempt to transform the process into a forum for problem solving, in which the objective is to search for innovative solutions which address each side's key interests in order to try to reconcile or bridge differing concerns. The main features that distinguish this more promising approach are:

• an in-depth understanding by the mediator of parties' core interests and concerns which must be addressed to achieve a sustainable settlement;

• the interposition of the RSG as a third party - who, in effect, becomes the negotiating partner for each side - and who, through shuttle or proximity talks, probes interests and explores innovative options with both parties. This allows each party to have a constructive partner as its interlocutor and overcomes the difficulty of parties having to deal directly with those with whom they have a bitter adversarial relationship;

• the use of international standards, practices and models which provide objective criteria upon which agreements can be based;

• an exploration with the parties of innovative options for addressing key interests that move beyond each side's positions and identify new possibilities that may not have been considered before, but which might be gradually pieced together into mutually acceptable agreements.

• the gradual building of confidence and subsequent improvement of the atmosphere between the parties which comes from sequential successes in reaching agreement; and

• the encouragement and support of influential member states (such as Friends of the Secretary­General) and other actors (such as donors or international financial institutions) which can nudge reluctant parties towards accommodation and agreement.

In facilitating the peace talks on Bougainville from 1999 to 2001, Sinclair defines how he transformed the process from one of arguing over positions to exploring options based on interests:

In any process of negotiation, it can be important to have an initial period of general exchange of views between the two sides - but if you have too much of it, it can become the negotiation. When that happens, you're not doing anything to close the gap between the parties' positions, and if it's allowed to go on unchecked, it can degenerate into a trading of complaints and slogans, with political positions being advanced and insisted upon. When this started to happen in the Bougainville negotiations, I tried to steer the exchanges to a different level. Instead of articulating general positions, I proposed: “Why don't we go to the level of identifying interests? Beyond saying what you would like, let us identify why you would like to have this. What interests are you seeking to protect by putting this position forward? What fears are you trying to guard against by articulating this position?” After that, the nature of the discussions changed noticeably. The two sides became specific, more open, and gave themselves more space to find solutions or agreements. (2001)

Understanding parties' interests and finding solutions that satisfy interests

UN mediators agree that, to be an effective mediator, good listening skills are required in order to understand parties' interests and motivations.⁸ This involves trying to see the situation from the parties' perspective - as they themselves see it.

Arnault comments that the mediator must have empathy. ‘You must be able to relate completely, totally and without reservation with each party's agenda. You must under­stand what they want, why they want it and why they want it so much.' He observes that the parties may hold positions or have committed acts that the mediator disagrees with but he advises:

You still have the duty to understand what lies behind this behaviour and to understand where all their mistrust and suspicion comes from. To do this, you have to spend a great deal of time with them. I spent days and nights talking and talking and talking with the two parties. In Frenchwe say, entrer dans les vues de quelqu'un. It doesn't mean that you share their views - but that you understand them. You get into their shoes. You don't have to stay there, but at least you know what it's like. But doing that imposes a discipline of being simultaneously empathetic with contradictory views. (2001)

Along these same lines, de Soto explains his own approach:

Going into any negotiation, a mediator should make it his business - as quickly as possible - to try to find out what interests, concerns, fears, aspirations, dreams and nightmares led to setting those positions. If you can identify interests, rather than positions, you're already a long way in the direction of finding the key to the solution of the conflict, especially if you do this with both sides. It's only by identifying the underlying interests and the institutional problems that are frequently attached to them that you can go beyond a glorified cease­fire to build peace that will be durable because you have identified the causes. Identifying interests - going beyond positions - involves finding out the source of grievances.

RSGs also stress the importance of good background research. ‘You’re negotiating with people and they have to be analyzed,’ observes de Mistura. ‘You have to study their culture, their background, their motivations, their connections, their tactics and strategies and what they have done so far. In real estate, the experts say the secret is “location, location, location”; in negotiations, it’s “homework, homework, homework”’ (2004).

Finding proposals that address the parties’ core interests requires creativity. In the negotiations over autonomy for Bougainville, Sinclair was able to help the parties invent new options to address their most important interests. Regarding the police, for example, it was agreed that Bougainville would have its own police force with its own head who would be appointed by a commission that would include Bougainvilleans, as well as the commissioner of police in Port Moresby. The standards of policing were to be the same for both. ‘This was a very creative solution,’ concludes Sinclair, ‘that met the concerns of the national government that the institution of the police not be fractured, and the concerns of the Bougainvilleans that the police arrangements would not be a constant reminder of the atrocities they suffered at the hands of the police during the crisis’ (2001).

Finding the best balance between direct and indirect talks

When faced with the problem of how to structure the peace process, RSGs face two choices - whether to bring the parties face- to-face in direct talks or whether to see the parties one at a time in indirect talks, such as shuttle diplomacy or proximity talks. In the former, the mediator shuttles back and forth between parties that are not in close physical proximity, but this puts considerable strain on the mediator.

In transforming a bargaining process into a problem-solving one, how negotiations are structured can make a big difference to the outcome. Except in formal conference diplomacy, RSGs, as a rule, tend to favor proximity talks over plenary sessions, where parties meet face-to-face, especially early in the negotiation. As Arnault explains:

Plenaries are confrontational. They are there to outline your principled stand on an issue. It's very difficult to make concessions in plenary. Plenaries are a good way to commit parties to a certain position. If that's what you want, a plenary is the ideal setting. If you want exactly the opposite - if you don't want parties to be wed to a specific position and if you are going to ask them to move away from this position - the last thing you want is a plenary, because once they've become wed to a position in front of the other party, they simply cannot abandon it without losing face. The major advantage of proximity talks is that you replace something which is not a dialogue, that is, the two parties talking at each other, with something that is a real dialogue, which is you talking to each of the parties. Essentially, what you do is to renounce the dialogue between the two parties and establish the only thing that can work at this particular point in time, which is a dialogue between you and each of them separately - and that can last quite a long time. (2001)

Voicing a similar view, Vendrell (2002) notes that the problem with face-to-face talks is that ‘the parties tend to speak for propaganda purposes, so they reiterate their well-known positions all the time for the sake of the other party. They love to remind the other side of what they did wrong and what their own position is. As a result, you waste a lot of time.’

Indirect talks also make it easier for the mediator to make a proposal, since the parties do not know the source of the ideas. In a plenary setting, a proposal offered by the other side is frequently rejected and, if the mediator endorses it, he/she may be accused of siding with the party that made the proposal. For this reason, Vendrell is opposed to the parties exchanging proposals in writing, arguing that it is more efficacious to ask them to present their proposals to the UN team which can then structure ideas to address the interests of all parties (2002).

Another suggestion for advancing the process is to make use of the multiplicity of possible formats. As Arnault (2001) explains: ‘One way to achieve progress is to constantly change the format in search of the easiest path. On the same day, I might move from a closed meeting with the two leaders, to a mid­sized meeting, to a large-sized one and then come back to a mid-sized meeting.’ Jumping from one format to another, he argues, can sometimes build consensus.

Technical teams can also be used to advance the process and go beyond agreed-upon principles to flesh out details. Towards the end of the Cyprus talks in 2003-2004, there were 12 working groups with up to 300 Greek and Turkish Cypriot lawyers and other experts, ‘working at breakneck pace, around the clock.’ They drafted the biggest peace agreement ever produced which was over 6000 pages. Regrettably, however, after this major effort by the UN, the agreement was ultimately rejected by the Greek Cypriot public in a referendum held on April 24, 2004 (de Soto, 2004).

Balancing asymmetrical power between parties⁹

Since parties are seldom equal in power, this can also present problems for UN facilitators. Egeland (2001) warns that, ‘One often has to deal with asymmetric parties - usually it is a strong government and a weak insurgency, but it can be a weak government and a strong insurgency. This asymmetry can lead to a moral dilemma, because if one side is strong, the agreement may end up more favorable to the strong party.’

Vendrell (2002) suggests that it is inappro­priate for mediators who have the objectives of the UN in mind to appease the strong and put pressure on the weak. ‘If you have no objective, you will pressure the weak because you don’t care about the outcome as long as the two sides agree. But if you end up with an agreement that’s not just, this outcome probably won’t last very long.’ Building coalitions with civil society or international and national NGOs or bringing in Friends of the Secretary-General can be used to support a weak party. He further argues that it is important for the mediator to realize that there is rarely equidistance between the parties and that one cannot ask the two sides to make an equal number of concessions. ‘When one side has three cards in its hand and the other has fifty, you can’t agree with the latter if they say, “If I give up three cards, the other side should give up three as well.”’ He concludes that it is, therefore, often the stronger side that will have to make more concessions, especially in the beginning.

The mediator can also make the stronger party aware of the long-term negative conse­quences ofcertain actions. ‘Leaders should be made to feel responsible,' advises Sahnoun. ‘One should always stress the effects of the continuing crisis on society - the destruction of institutions, of infrastructure, and the hardship for the people. Sometimes it may even be important to tell them that, if they continue to behave as they are, they might one day be brought before an international court.' He suggests that it is also helpful to highlight factors, such as how the people of the region feel or the possibility of an adverse reaction from the governments of neighboring countries (2003).

Drawing on international norms, standards and models

Another useful strategy employed by RSGs is to bring existing norms, standards or practices into the process to serve as models.¹⁰ ‘A very important technique is what I call “technification”,' says Arnault. ‘In other words, bringing issues down to a technical level and having technical arbitration.' In Guatemala, he called in experts from UN agencies, the World Bank and the IMF to provide such input. For example, experts from the ILO who had devised the Convention on Indigenous Rights were called upon to explain that existing international standards must form the basis of all indigenous policies (2001).

Using a single negotiating text

Several RSGs advocate use of a single negotiating text¹¹ where, after extensive consultation, the mediator presents a draft text to both parties who, after study, are invited to suggest changes. The mediator then revises the draft and once again presents it for further comments until, in an iterative manner, the text evolves into something that all sides can accept. In Guatemala, Arnault constructed the text from four sources: (1) the interests of the government; (2) the interests of the guerrillas; (3) the interests of the Assembly of Civil Society and (4) expressions of international norms and best practices. But he cautions against prematurely trying to sell a text to the parties:

The worst mistake you can make is to try to sell the parties something for which they have developed no sense of ownership. You have to walk them from where they are to the final product. Usually, I started by having a dialogue with one side. I looked at their position on a particular issue and tried to get more clarity on their concerns. Then I began engaging them, not based on the other party's position, which would have been rejected - but rather in the light of the positions and interests of civil society and the international community. Once I had something that seemed acceptable, I turned to the other party. But, of course, by then I already had the benefit of what I had heard from the first, so I was better able to build their concerns into the discussion. So, basically, what you try to do is to weave their concerns into yours, yours into theirs, and you end up having two separate negotiations where the parties rarely confront one another's positions directly; they basically raise their concerns to ideas you present and you try to incorporate these. (2001)

Introducing new ideas

RSGs often found it useful to introduce new ideas into the process.¹² In El Salvador, de Soto introduced the concept of the Truth and Reconciliation Commission, as well as the Ad Hoc Commission to Evaluate the Officer Corps of the Armed Forces. He took the notion even further by organizing brainstorming meetings to generate new ideas. In trying to formulate the human rights agreement, he brought together a group of human rights specialists, Salvadorans and personnel from the UN Centre for Human Rights for a brainstorming session. Many of the ideas that they produced subsequently became part of the human rights agreement (2001).

In the Bougainville negotiations, Sinclair tried to encourage the parties to come up with new ideas of their own, but when they were unable to do so, he proposed his own: ‘The two delegations were in the same building, but they were not even looking at each other, because the feelings on the referendum were so strong.' To move the process forward, Sinclair presented a paper outlining his own ideas on the issue. ‘The moment I saw the two delegations starting to communicate,' he recalls, ‘I realized we had something in this document. We had to do some refining, some finessing, but basically we were on our way to breaking the log jam on the question of the referendum.' The following day, the Loloata Understanding on the Question of a Referendum was signed (2001).

Sometimes, simply the introduction of new terminology can make a difference, as in East Timor where for years, the Indonesian government had rejected the term ‘referendum.' It was, however, prepared to accept the new terminology of a ‘popular consultation' which basically embodied the same concept of one person, one vote, with only the Timorese voting (Marker, 2003).

Eschewing artificial deadlines

Several RSGs cautioned against setting artifi­cial deadlines.¹³ De Soto offers a distinction between natural (or real) deadlines, imposed by the calendar and artificial deadlines, imposed by the mediator and cautions against imposing the latter. Real deadlines ‘can and should be grasped and manipulated by a mediator to prod a negotiation along and pry concessions from recalcitrant parties,' he advises. ‘But let the mediator beware of conjuring up deadlines not anchored in reality. Calls to settle by a given date “or else” frequently put the mediator's credibility at risk' - since they usually do not work (1999: 382).

Dealing with the media

Although RSGs involved in peacekeeping and peace-building typically find the media helpful, those engaged in peacemaking do not. Egeland (2001) notes that facilitators are ‘dealing with vulnerable compromises or ideas that might become agreements further down the road and that would certainly be very controversial among the hawks on either side - if they were known.' For this reason, mediators want as little media attention as possible until an agreement has been reached and the parties have had an opportunity to discuss it with their constituents. ‘I've seen so many agreements crumble,' he cautions, ‘because they were revealed at an early stage - shot down by chauvinist public opinion or groups.' But not talking to the press can also become an issue. When approached by the media, Egeland revealed with whom he met, what general issues were discussed and tried to give a positive message of having had good talks, without going into much substance.

Similarly, in describing how he dealt with the media in the tripartite talks with the UN in Indonesia and Portugal over the status of East Timor, Marker (2001) notes, ‘We kept a very low profile. We more or less took Trappist vows. The media were a little unhappy about that, but we were very circumspect in what we said - never anything individually, always together with one or both governments.'

Indeed, LeMoyne (2005) describes how the process can go wrong if there is too much media exposure. In Colombia, the government and the guerrillas negotiated in front of the cameras during the entire period and ‘turned the process into a media show. That was very damaging and was exploited repeatedly by one side or the other, as well as by the media. It was like a soap opera. It undercut the seriousness of the effort.'

To avoid this kind of scenario, most RSGs try to obtain a procedural agreement from the outset on dealing with the media. Vendrell, for example, asked the parties to agree that the Representative of the Secretary-General would be the only person to speak to the media (2002). Arnault (2001) proposed a rule that the parties could talk to the press about their own concerns, but could not comment on the other parties' positions.

The need for patience and persistence

Virtually all RSGs stressed the need for patience and persistence. ‘The crucial thing is to stick with the parties, to keep faith with the process,' says Stephen. ‘Optimism is a vital thing. You have to look for ways forward that give hope - in every situation' (2001). ‘There are valid reasons why you want to rush the parties into something that allows the end of the war,' notes Arnault. ‘But if the agreement is to survive, if it is good, legitimate, politically accurate, based on a great deal of mutual confidence and has addressed all major issues - that will require time' (2001).

RSGs also mention that parties need to be helped to understand that they cannot obtain everything they aspire to. ‘A peace agreement will always be controversial,' concludes Egeland, ‘because both sides have to give up something. Leaders have to accept that by agreeing on a practical although less than perfect deal, they may lose some public support, but history will show that they were heroes of peace who took the courageous decisions' (2001).

Using the Secretary-General's authority

In some cases, RSGs found it useful to call upon the authority of the Secretary-General. In Cyprus, de Soto (2004) used the Secretary­General's authority extensively. He invited the parties to meetings with Annan in New York, Paris, Copenhagen, The Hague, and Burgenstock, as well as in Cyprus itself. At these meetings, the Secretary-General used his own powers of persuasion, building on de Soto's work. He sometimes even read statements prepared by de Soto and his team to outline parameters of the process. On a number of occasions, the Secretary­General hosted working dinners and lunches for the leaders. ‘A United Nations good officer, however qualified he may be as a Representative, can never aspire to the kind of authority that the Secretary-General personally carries,' concludes de Soto.

Unravelling the linkage between issues

Because issues in a negotiation are usually linked in complex ways,¹⁴ many UN peace­makers adopt the rule of ‘nothing is agreed until everything is agreed.' This is to ensure that, although peace agreements addressing different agenda items are negotiated and signed one by one, they are then set aside until the full agenda has been dealt with and a comprehensive settlement is in place. At that time, a commitment is made to implement the full set of agreements according to a schedule that is included in the agreement.

Establishing public commitment

Public signing of peace agreements can provide a significant finale to years of negotiating and help to establish a public commitment to peace. De Soto (2001) recalls that the final ceremony for the signing of the El Salvador peace accord was held at Chapultepec Castle in Mexico City on January 16, 1992, before 10 heads of government, including those of all the Central American countries and the Friends of the Secretary­General, as well as the Secretary-General. The opening line of Boutros-Ghali's speech was: ‘The long night of El Salvador is drawing to an end.' ‘Until then, President Christiani had refused to meet with the guerrillas, but after a remarkable speech, he came down from the stage and embraced the guerrilla delegation members, one by one,' recounts de Soto, ‘and he had tears in his eyes.'

Support from Friends of the Secretary-General

Another issue of importance to UN mediation is the support of the organization's member states. In certain situations, this relationship has been formalized by the creation of a Group of Friends of the Secretary-General, which can provide resources, ideas and diplomatic assistance and show the parties and their constituencies that there is international support for the peace effort.

RSGs agree that the choice of friends is crucial. ‘It's best to choose countries that have no stake in the outcome,' argues de Soto, ‘and to express the strong expectation that those countries who will become entitled to the lofty title of “Friends of the Secretary-General” will behave as such' (2001). Problems are more likely to arise when friends are self­appointed or where one of the friends has strong bilateral interests vis-a-vis one or more of the parties. This is illustrated by the Group of Friends established for Georgia/Abkhazia, where, as Whitfield notes, the Western states were staunchly opposed to the aspirations of theAbkhaz, whereas Russia, which was both a friend and ‘facilitator’ of the process, saw itself as the Abkhaz protector. Whitfield concludes that members ofa Friends Group need to have conflict resolution as their uppermost goal. ‘Situations in which individual Friends have a greater interest in the stability or continuing existence of one or other of the parties of the conflict, or their own influence within the conflict arena, than in the resolution of the conflict itself will be complicated by these national priorities’ (2005: 13).

Working with regional and sub-regional organizations

In a growing number of situations, the UN has worked closely with regional and sub-regional organizations when they take the initiative in a peace process. For example, Dinka describes the role he played in the Arusha process, where first Julius Nyerere and then Nelson Mandela served as the regional mediators. ‘Our role was to attend their meetings and listen and then to go talk to the people that were causing the most difficulty, trying to get them on board, trying to come up with compromise formulations.’ He notes that this was effective because the parties trusted the UN to be an honest broker. Dinka then liaised with Nyerere’s or Mandela’s team to propose new ideas and formulations. ‘Once you decide to play this kind of role,’ he advises, ‘the whole sub-region begins to trust you. But the moment you show some kind of indication that you want to take over the driver’s seat, then the entire sub-region turns against you’ (2001).

Stephen and Tubman played a similar role in two successive sub-regional peace processes for Somalia - the first sponsored by Djibouti, the second by Kenya. Stephen (2001) comments: ‘My role was to accom­pany the process. I gradually developed a role as a kind of facilitator between the process and the international commu­nity’s norms.’ He worked, for example, to ensure that women and minority groups were adequately represented and had a meaningful role (2001). In the second peace process, Tubman acted as a go-between, exploring issues, interests and options with the parties and communicating these to the Kenyan Special Envoy in charge of the talks (2003).

Another interesting example of close coop­eration is the partnership of the UN and the African Union in an initiative known as the International Conference on the Great Lakes Region, where Fall, an RSG for the UN, has worked closely with the Special Envoy of the Chairperson of the AU Commission. After wide consultation with the leaders and civil society of countries in the region, a regional framework and process was established to adopt and implement a Stability, Security and Development Pact to address four thematic issues: (1) peace and security; (2) democracy and good governance; (3) economic development and regional integration and (4) humanitarian and social issues. At the first summit, the Dar-es-Salaam Declaration on Peace, Security, Democracy, and Development in the Great Lake Region was signed in the presence of the UN Secretary-General and the Chairperson of the African Union Commission. A second summit is planned to endorse a plan of action which will constitute the Security, Stability and Development Pact for the region (Report of the Secretary-General, 2006).