9601 1

Course: Conflict Resolution Code (9601)
Semester: Spring, 2020

ASSIGNMENT No. 1
Q.1 Discuss in detail the scope of studies of conflict resolution as a discipline.
Conflict resolution is conceptualized as the methods and processes involved in facilitating the peaceful ending
of conflict and retribution. Committed group members attempt to resolve group conflicts by actively
communicating information about their conflicting motives or ideologies to the rest of group (e.g., intentions;
reasons for holding certain beliefs) and by engaging in collective negotiation. Dimensions of resolution
typically parallel the dimensions of conflict in the way the conflict is processed. Cognitive resolution is the way
disputants understand and view the conflict, with beliefs, perspectives, understandings and attitudes. Emotional
resolution is in the way disputants feel about a conflict, the emotional energy. Behavioral resolution is reflective
of how the disputants act, their behavior. Ultimately a wide range of methods and procedures for addressing
conflict exist, including negotiation, mediation, mediation-arbitration, diplomacy, and creative peacebuilding.
The term conflict resolution may also be used interchangeably with dispute resolution, where arbitration and
litigation processes are critically involved. The concept of conflict resolution can be thought to encompass the
use of nonviolent resistance measures by conflicted parties in an attempt to promote effective resolution.
Rules
Obtain agreement from all parties that they will:
 Work to resolve the conflict.
 Treat each other with respect.
 Be clear and truthful about what is really bothering them and what they want to change.
 Listen to other participants and make an effort to understand the views of others.
 Be willing to take responsibility for their behavior.
 Be willing to compromise.
Steps
1. Arrange for all parties to confront the problem.
 Select a time as soon as all parties have cooled down.
 Meet at a place that is neutral for all parties.
2. Have all participants describe the conflict in clear terms and describe behaviors, feelings and desired
changes.
 Direct participants to use I, not you, and to focus on specific behaviors and problems, not on
people.
3. Ask participants to restate what the others have said.
4. Summarize the conflict based on what you have heard and obtain agreement from participants.
5. Start brainstorming to find solutions.
 Ask each participant to offer a solution.
 List all of the options presented (either verbally or on flip chart).
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 Discuss all of the options in a positive manner.
 Rule out any options that participants agree are unworkable.
6. Summarize all possible options for a solution.
7. Assign further analysis of each option to a participant.
8. Obtain agreement from all parties on next steps.
9. Close meeting by having participants shake hands, apologize and thank each other for working to
resolve the conflict.
Conflict resolution as a discipline has developed theoretical insights into the nature and sources of
conflict and how conflicts can be resolved through peaceful methods to effectuate durable settlements.
Morton Deutsch: Cooperative Model
One of the first to develop insight into the beneficial consequences of cooperation as an academic
enquiry was Morton Deutsch. In his view, a number of factors like the nature of the dispute and the goals each
party aims at are pivotal in determining the kind of orientation a party would bring to the negotiating table in its
attempt to solve the conflict. Two basic orientations exist. These are competitive and cooperative. Deutsch
further predicts the type of interactions which would occur between negotiating parties as a result of their
disputing style. Cooperative disposition of the party would evoke an atmosphere of trust and eventually lead to
mutually beneficial options for settlement. On the other hand, competitive approach leads to win-lose outcomes.
This approach is inclined to intensifying animosity and distrust between parties and is generally considered
destructive.
Some critics of this approach argue, both cooperation and competition are essential to some extent to
effectuate resolution of conflict since negotiating a desirable agreement always includes common and diverse
goals. Thus finding a balance between these two approaches is the key to successful negotiation.
Roger Fisher and William Ury: Principled Negotiation
Other theorists who advocated cooperative conflict behavior include Roger Fisher and William Ury.
They put forward four principles for effective negotiation. These four principles are:
 Separate people from their problem.
What Fisher and Ury argue is that this principle helps parties to get a clearer picture of the substantive problem.
 Focus on interest rather than position.
 Generate a variety of options before settling on an agreement.
 Insist that the agreement be based on objective criteria.
At each stage of the negotiation process, the above principles should be observed. Developing a method
for reaching good agreements is central to this model.
This model asserts that "separate people from their problem". However, this could make matters worse
if human needs of the people are the problem. Moreover, conflicts between ethnic groups are mostly needs
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based conflicts since one group feels that its basic needs of identity, security, recognition or equal participation
are being neglected. Here human needs model can be more useful than interest based model.
John Burton: Human Needs Model
John Burton's work is of immense significance in the field of human needs model. He argues when an
individual or group is denied its fundamental need for identity, security, recognition or equal participation
within the society, protracted conflict is inevitable. To resolve such conflict, it is essential that needs that are
threatened be identified and subsequently restructuring of relationships or the social system take place in a way
that needs of all individuals and groups are accommodated. For instance, this model can be useful in the case of
Maldives where there are restraints on freedom and participation of its citizens in political life.
Bush, Folger And Lederach : Conflict Transformation
Theorists of conflict transformation, while referring to the interest-based and the human needs models
argue, solution that satisfies each country's interests and needs could be reached through these models.
However, if negative attitudes developed in each country during the conflict are not addressed, these could
serve to generate further conflicts some time later. Whereas conflict transformation aims at a fundamental
change in attitude and/or behavior of individuals and/or the relationship between two or more disputing parties.
This approach is very well exemplified in Bush and Folger's theory of transformative mediation and
Lederach's model of conflict transformation. Lederach uses the term conflict resolution to refer to
peacebuilding. For building peace destructive or negative communication patterns need to be transformed or
replaced by constructive or positive interaction patterns. Like Bush and Folger, Lederach stresses the need to
transform the disputing parties by empowering them to understand their own situation and needs, as well as
encouraging them to recognize the situation and needs of their opponents.
Conflict Transmutation
Those theorists, who practice conflict transmutation argue that conflict transformation may transform
relationships, however it does not go far enough in addressing the underlying sources of conflict behavior.
Conflict transmutation is centered on the principles found in alchemy as a set of contemplative practices that
transform deeply encrusted feeling and thoughts that fuel destructive conflict behavior.
Conclusion
As we take a closer view of world events as well as mundane day to day reality of life, it becomes
apparent that conflict is an indisputable fact of our physical and mental existence.
Conflict infact permeates each and every strand of human existence and often takes shape of diabolic
cyclical violence unless dealt with creatively and constructively. Though each conflict resolution theory has its
own limitations yet conflict resolution as a discipline can be of immense significance in this respect and as we
ruminate the current world politics where the powerful does not have qualms about resorting to force at any
given opportunity, conflict resolution theories are emblematic of how military force is not always the right
approach for dealing with conflict effectively.
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Q.2 How do social theorists see conflict? Critically evaluate different causes of conflict presented by
different theorists.
Conflict theory, first purported by Karl Marx, is a theory that society is in a state of perpetual conflict because
of competition for limited resources. Conflict theory holds that social order is maintained by domination and
power (rather than consensus and conformity). According to conflict theory, those with wealth and power try to
hold on to it by any means possible, chiefly by suppressing the poor and powerless. A basic premise of conflict
theory is that individuals and groups within society will work to maximize their own benefits.
Conflict theory looks at society as a competition for limited resources. This perspective is a macro-level
approach most identified with the writings of German philosopher and sociologist Karl Marx (1818–1883), who
saw society as being made up of individuals in different social classes who must compete for social, material,
and political resources such as food and housing, employment, education, and leisure time. Social institutions
like government, education, and religion reflect this competition in their inherent inequalities and help maintain
the unequal social structure. Some individuals and organizations are able to obtain and keep more resources
than others, and these “winners” use their power and influence to maintain social institutions. Several theorists
suggested variations on this basic theme. Polish-Austrian sociologist Ludwig Gumplowicz (1838–1909)
expanded on Marx’s ideas by arguing that war and conquest are the basis of civilizations. He believed that
cultural and ethnic conflicts led to states being identified and defined by a dominant group that had power over
other groups (Irving 2007).
German sociologist Max Weber agreed with Marx but also believed that, in addition to economic inequalities,
inequalities of political power and social structure cause conflict. Weber noted that different groups were
affected differently based on education, race, and gender, and that people’s reactions to inequality were
moderated by class differences and rates of social mobility, as well as by perceptions about the legitimacy of
those in power. German sociologist Georg Simmel (1858–1918) believed that conflict can help integrate and
stabilize a society. He said that the intensity of the conflict varies depending on the emotional involvement of
the parties, the degree of solidarity within the opposing groups, and the clarity and limited nature of the goals.
Simmel also showed that groups work to create internal solidarity, centralize power, and reduce dissent.
Resolving conflicts can reduce tension and hostility and can pave the way for future agreements. In the 1930s
and 1940s, German philosophers, known as the Frankfurt School, developed critical theory as an elaboration on
Marxist principles. Critical theory is an expansion of conflict theory and is broader than just sociology,
including other social sciences and philosophy. A critical theory attempts to address structural issues causing
inequality; it must explain what’s wrong in current social reality, identify the people who can make changes,
and provide practical goals for social transformation (Horkeimer 1982). More recently, inequality based on
gender or race has been explained in a similar manner and has identified institutionalized power structures that
help to maintain inequality between groups. Janet Saltzman Chafetz (1941–2006) presented a model of feminist
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theory that attempts to explain the forces that maintain gender inequality as well as a theory of how such a
system can be changed (Turner 2003). Similarly, critical race theory grew out of a critical analysis of race and
racism from a legal point of view. Critical race theory looks at structural inequality based on white privilege and
associated wealth, power, and prestige.
Criticism
Just as structural functionalism was criticized for focusing too much on the stability of societies, conflict theory
has been criticized because it tends to focus on conflict to the exclusion of recognizing stability. Many social
structures are extremely stable or have gradually progressed over time rather than changing abruptly as conflict
theory would suggest.
Conflict theory has been used to explain a wide range of social phenomena, including wars,
revolutions, poverty, discrimination, and domestic violence. It ascribes most of the fundamental developments
in human history, such as democracy and civil rights, to capitalistic attempts to control the masses (as opposed
to a desire for social order). Central tenets of conflict theory are the concepts of social inequality, the division of
resources, and the conflicts that exist between different socioeconomic classes.
Many types of societal conflicts throughout history can be explained using the central tenets of conflict theory.
Some theorists, including Marx, believe that societal conflict is the force that ultimately drives change and
development in society.
Marx’s version of conflict theory focused on the conflict between two primary classes. Each class consists of a
group of people bound by mutual interests and a certain degree of property ownership. Marx theorized about the
bourgeoisie, a group of people that represented members of society who hold the majority of the wealth and
means. The proletariat is the other group: it includes those considered working class or poor.
With the rise of capitalism, Marx theorized that the bourgeoisie, a minority within the population, would use
their influence to oppress the proletariat, the majority class. This way of thinking is tied to a common image
associated with conflict theory-based models of society; adherents to this philosophy tend to believe in a
pyramid arrangement in terms of how goods and services are distributed in society; at the top of the pyramid is
a small group of elites that dictate the terms and conditions to the larger portion of society because they have
outsized amount of control over resources and power.
Uneven distribution within society was predicted to be maintained through ideological coercion; the bourgeoisie
would force acceptance of the current conditions by the proletariat. Conflict theory assumes that the elite will
set up systems of laws, traditions, and other societal structures in order to further support their own dominance
while preventing others from joining their ranks. Marx theorized that, as the working class and poor were
subjected to worsening conditions, a collective consciousness would raise more awareness about inequality, and
this would potentially result in revolt. If, after the revolt, conditions were adjusted to favor the concerns of the
proletariat, the conflict circle would eventually repeat but in the opposite direction. The bourgeoise would
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eventually become the aggressor and revolter, grasping for the return of the structures that formerly maintained
their dominance.
Conflict Theory Assumptions
In current conflict theory, there are four primary assumptions which are helpful to understand: competition,
revolution, structural inequality, and war.
Competition
Conflict theorists believe that competition is a constant and, at times, an overwhelming factor in nearly every
human relationship and interaction. Competition exists as a result of the scarcity of resources, including
material resources–money, property, commodities, and more. Beyond material resources, individuals and
groups within a society also compete for intangible resources as well. These can include leisure time,
dominance, social status, sexual partners, etc. Conflict theorists assume that competition is the default (rather
than cooperation).
Revolution
Given conflict theorists' assumption that conflict occurs between social classes, one outcome of this conflict is a
revolutionary event. The idea is that change in a power dynamic between groups does not happen as the result
of a gradual adaptation. Rather, it comes about as the symptom of conflict between these groups. In this way,
changes to a power dynamic are often abrupt and large in scale, rather than gradual and evolutionary.
Structural Inequality
An important assumption of conflict theory is that human relationships and social structures all experience
inequalities of power. In this way, some individuals and groups inherently develop more power and reward than
others. Following this, those individuals and groups that benefit from a particular structure of society tend to
work to maintain those structures as a way of retaining and enhancing their power.
War
Conflict theorists tend to see war as either a unifier or as a "cleanser" of societies. In conflict theory, war is the
result of a cumulative and growing conflict between individuals and groups, and between entire societies. In the
context of war, a society may become unified in some ways, but conflict still remains between multiple
societies. On the other hand, war may also result in the wholesale end of a society.
Marx viewed capitalism as part of a historical progression of economic systems. He believed capitalism was
rooted in commodities, or things that are purchased and sold. For example, he believed that labor is a type of
commodity. Because laborers have little control or power in the economic system (because they don’t own
factories or materials), their worth can be devalued over time. This can create an imbalance between business
owners and their workers, which can eventually lead to social conflicts. He believed these problems would
eventually be fixed through a social and economic revolution.
Max Weber, a German sociologist, philosopher, jurist, and political economist, adopted many aspects of Marx's
conflict theory, and later, further refined some of Marx's idea. Weber believed that conflict over property was
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not limited to one specific scenario. Rather, he believed that there were multiple layers of conflict existing at
any given moment and in every society. Whereas Marx framed his view of conflict as one between owners and
workers, Weber also added an emotional component to his ideas about conflict. Weber said: "It is these that
underlie the power of religion and make it an important ally of the state; that transform classes into status
groups, and do the same to territorial communities under particular circumstances...and that make 'legitimacy' a
crucial focus for efforts at domination."
Weber's beliefs about conflict extend beyond Marx's because they suggest that some forms of social interaction,
including conflict, generate beliefs and solidarity between individuals and groups within a society. In this way,
an individual's reactions to inequality might be different depending on the groups with which they are
associated; whether they perceive those in power to be legitimate; and so on.
Conflict theorists of the later 20th and 21st centuries have continued to extend conflict theory beyond the strict
economic classes posited by Marx, although economic relations remain a core feature of the inequalities across
groups in the various branches of conflict theory. Conflict theory is highly influential in modern and post-
modern theories of sexual and racial inequality, peace and conflict studies, and the many varieties of identity
studies that have arisen across Western academia in the past several decades.
Examples of Conflict Theory
For example, conflict theorists view the relationship between a housing complex owner and a tenant as being
based mainly on conflict instead of balance or harmony, even though there may be more harmony than conflict.
They believe that they are defined by getting whatever resources they can from each other.
In the above example, some of the limited resources which may contribute to conflicts between tenants and the
complex owner include the limited space within the complex, the limited number of units, the money which
tenants pay to the complex owner for rent, and so on. Ultimately, conflict theorists see this dynamic as one of
conflict over these resources. The complex owner, however gracious a landlord he or she may be, is
fundamentally focused on getting as many apartment units filled as possible so that he or she can make as much
money in rent as possible. This may introduce conflict between housing complexes, among tenant applicants
looking to move into an apartment, and so forth. On the other side of the conflict, the tenants themselves are
looking to get the best apartment possible for the least amount of money in rent.
Conflict theorists point to the financial crisis of 2008 and the subsequent bank bailouts as good examples of
real-life conflict theory, according to authors Alan Sears and James Cairns in their book A Good Book, in
Theory. They view the financial crisis as the inevitable outcome of the inequalities and instabilities of the global
economic system, which enables the largest banks and institutions to avoid government oversight and take huge
risks that only reward a select few.
Sears and Cairns note that large banks and big businesses subsequently received bailout funds from the same
governments that claimed to have insufficient funds for large-scale social programs such as universal health
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care. This dichotomy supports a fundamental assumption of conflict theory, which is that mainstream political
institutions and cultural practices favor dominant groups and individuals.
This example illustrates that conflict can be inherent in all types of relationships, including those that don't
appear on the surface to be antagonistic. It also shows that even a straightforward scenario can lead to multiple
layers of conflict.
Q.3 Do you think that use of power to resolve intergroup and international conflicts as an appropriate
option? Discuss in detail.
One of the most prominent reasons for intergroup conflict is simply the nature of the group. Other reasons may
be work interdependence, goal variances, differences in perceptions, and the increased demand for specialists.
Also, individual members of a group often play a role in the initiation of group conflict. Any given group
embodies various qualities, values, or unique traits that are created, followed, and even defended. These clans
can then distinguish "us" from "them." Members who violate important aspects of the group, and especially
outsiders, who offend these ideals in some way, normally receive some type of corrective or defensive response.
Relationships between groups often reflect the opinions they hold of each other's characteristics. When groups
share some interests and their directions seem parallel, each group may view the other positively; however, if
the activities and goals of groups differ, they may view each other in a negative manner. When trying to prevent
or correct intergroup conflict, it is important to consider the history of relations between the groups in conflict.
History will repeat itself if left to its own devices.
Limited resources and reward structures can foster intergroup conflict by making the differences in group goals
more apparent. Differences in perceptions among groups regarding time and status, when coupled with different
group goals, can also create conflict. Reorganization of the workplace and integration of services and facilities
can be stressful to some and create negative conflict. Some individuals within the group have inherent traits or
social histories that impact intergroup conflict, but problems within intergroup relations are not usually caused
by the deviate behavior of a few individuals.
Consequences of Intergroup Conflict
Intergroup conflict causes changes to occur, both within the groups in conflict and between them. Within the
groups, members will usually overlook individual differences in an effort to unite against the other side, and
with this concerted effort the focus is on the task. The group can become more efficient and effective at what
they do, and members can become more loyal, closely following group norms. Problems can occur, however,
when the group loses focus of the organization's goals and becomes closed off from other groups. Haughtiness
and isolation quickly lead to decreased communication. Communication is the key between groups in reciprocal
interdependence, and these have the highest negative consequences for lack of effective communication.
Miscommunication can be the death knell of any organization.
Solutions to Intergroup Conflict
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There are numerous choices available to circumvent conflict, to keep it from becoming damaging, and to
resolve conflict that is more serious. These include simple avoidance where possible, problem solving, changing
certain variables in the workplace, and in-house alternative dispute resolution (ADR) programs. Any resolution
method should depend on why the conflict occurred, the seriousness of the conflict, and the type. A face-to-face
meeting, as in problem solving, can be very effective in conflicts of misunderstanding or language barriers. The
groups can discuss issues and relevant information, with or without a facilitator, to reach resolution.
Where groups have differing goals, it may be prudent to establish some type of goal that can only be reached
when the conflicting groups work together. A superordinate goal not only helps alleviate conflict, it focuses
more on performance, which is what the organization needs to survive. A downside to this option is the
identification of a common enemy of the conflicting groups, who must come together to prevail. Eventually, the
solidarity crumbles and groups begin to again turn against each other.
Another stopgap solution to conflict is simply avoiding it. Although this does not resolve the problem, it can
help get a group through a period of time, in which those involved may become more objective, or a greater,
more immediate goal would have been met. Along those lines, another solution is smoothing the groups by
focusing on common interests and de-emphasizing the differences between them. This approach is especially
effective on relatively simple conflicts and is viewed as a short-term remedy.
Yet another quick fix is the authoritative command, where groups, who cannot satisfactorily resolve their
conflict, are commanded by management. This response does not usually deal with the underlying cause of the
conflict, which is likely to surface again in some way. This would probably be a choice of last resort in this era
of individual independence and self-determination.
Although it is not always possible to change a person's behavior, by focusing on the cause of the conflict and
the attitudes of those involved, it will lead to a more permanent resolution. It is also possible to change the
structural variables involving the conflicting groups, such as changing jobs or rearranging reporting
responsibilities. This approach is much more effective when the groups themselves participate in structural
change decisions. Without meaningful input, this resolution method resembles avoidance or forcing and is not
likely to succeed, further frustrating all involved.
Any method or response to conflict, lost productivity, miscommunication, or unhealthy work environment can
be reconstituted in many forms of ADR. Alternative dispute resolution should also be appropriate to the needs
of those involved. It is crucial that the organization determines the needs of its stakeholders, the types of
conflict that occur, and the conflict culture (how conflict is dealt with) within the organization before initiating
an ADR program. Any program must allow for creativity, approachability, and flexibility if people are asked to
utilize it. All employees should be aware or involved in the establishment of an ADR program, if it is to work
properly. Without full involvement or input, needs assessment is hit or miss, and assumptions lead to actions,
which lead to the same place you were before. This assumicide behavior by an organization's leadership would
not be tolerated in marketing a new product or acquiring a capital asset, so why are people less important? Any
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collaborative process intended to address and manage intergroup conflict should have objectives to encourage
it. In this major commitment of time and resources, success is its best reward, but to ensure an ADR approach
suitable for you, it is important to:
 Build trust
 Clearly define participants' roles and authorities
 Establish ground rules
 Promote leadership
 Bring a collaborative attitude to the table
 Maintain participant continuity
 Recognize time and resource constraints
 Address cultural differences and power imbalances
 Build accountability and organizational commitment
 Make this a consensus process
 Produce early measurable results
 Link decision making and implementation
 Promote good communication and listening skills
Conflicts within or between groups can be destructive or constructive, depending on how the conflict is
handled.
When an organization is creating a dispute resolution process, there are key factors to success:
1. A critical mass of individuals who are committed to the process;
2. A leadership group who perceive it in their best interest and the best interests of the people they serve;
3. Strategic cooperation among historical enemies;
4. Realistic and satisfactory outcomes;
5. A moratorium on hostilities or conflict-seeking behavior.
There also are barriers to success:
1. Fear of losing power;
2. Unwillingness to negotiate;
3. No perceived benefit;
4. Corporate philosophy;
5. Top leadership reluctance;
6. Lack of knowledge about ADR;
7. Lack of success stories.
Responsible measures to reduce barriers and encourage a true paradigm shift are training, incentives, marketing,
periodic review, case studies, and top management support and participation. Facilitators trained in mediation
and other forms of ADR are a necessary resource from outside or within the organization. The workplace of the
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new millenium will have in-house mediation or other conflict management programs to reduce formal claims
and act as a risk management business practice.
Conflicts based in ethnic, religious, and racial differences continue to erupt around the world, despite decades of
intervention and scholarly research. With conflicts ranging from genocide and mass killings in Darfur, to
political and religious divisions in Northern Ireland, heated tensions between Sinhalese and Tamils in Sri
Lanka, to the most recent outbreak of violence between Israelis and Palestinians in Gaza, it is difficult to assess
precisely what contribution social science has made to an adequate diagnosis of the sources of violent conflict.
Harder still to know is how best to move forward to alleviate conflict, promote reconciliation, and achieve
sustainable, peaceful relations among diverse groups. Theoretical and empirical efforts by social psychologists
and peace scholars have amassed a great deal of knowledge regarding factors that enhance or inhibit conflict,
and the likely effectiveness of practices and interventions that address such conflict. Early on, their work
became intricately connected in a joint effort to develop an interdisciplinary community of researchers devoted
to the scientific study of peace; these scholars drew on the strengths of their respective disciplines to link the
perceptions, motivations, and emotions of individuals to concrete strategies that could promote conflict
resolution and reconciliation (Christie, Tint, Wagner, & Winter, 2008; Kelman, 1965). Over the last several
decades, however, contributions from these scholarly communities have grown apart and lack the integration
and sense of shared purpose that helped to create the interdisciplinary investigations of early peace research.
Each has continued to develop its own conceptual models and publication outlets as new generations of
scholarship emerge, and correspondingly, scholars from social psychology and peace research tend to have
limited knowledge or awareness of the frameworks and underlying principles that guide the other's work.
Although some contend that it may be difficult to reunite these divergent traditions (see Clemens, in press),
emerging perspectives recognize a great deal of potential for integration (p. 4) across these approaches (see
Vollhardt & Bilali, 2008). A primary goal of the present volume is to bring these perspectives together, and to
encourage a more integrative approach to the study of intergroup conflict and peace as we look toward the
future.
Q.4 do you consider terrorism in the world as an international conflict situation? Discuss in detail
highlighting causes and possible interventions for control.
The United Nations came into being in 1945, following the devastation of the Second World War, with
one central mission: the maintenance of international peace and security. The UN does this by working
to prevent conflict; helping parties in conflict make peace; peacekeeping; and creating the conditions to
allow peace to hold and flourish. These activities often overlap and should reinforce one another, to be
effective. The UN Security Council has the primary responsibility for international peace and security.
The General Assembly and the Secretary-General play major, important, and complementary roles,
along with other UN offices and bodies.
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Security Council
The Security Council takes the lead in determining the existence of a threat to the peace or an act of aggression.
It calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or
terms of settlement. Under Chapter VII of the Charter, the Security Council can take enforcement measures to
maintain or restore international peace and security. Such measures range from economic sanctions to
international military action. The Council also establishes UN Peacekeeping Operations and Special Political
Missions.
General Assembly
The General Assembly is the main deliberative, policymaking and representative organ of the UN. Through
regular meetings, the General Assembly provides a forum for Member States to express their views to the entire
membership and find consensus on difficult issues. It makes recommendations in the form of General Assembly
Resolutions. Decisions on important questions, such as those on peace and security, admission of new members
and budgetary matters, require a two-thirds majority, but other questions are decided by simple majority.
Preventive Diplomacy and Mediation
The most effective way to diminish human suffering and the massive economic costs of conflicts and their
aftermath is to prevent conflicts in the first place. The United Nations plays an important role in conflict
prevention, using diplomacy, good offices and mediation. Among the tools the Organization uses to bring
peace are special envoys and political missions in the field.
Peacekeeping
Peacekeeping has proven to be one of the most effective tools available to the UN to assist host countries
navigate the difficult path from conflict to peace. Today's multidimensional peacekeeping operations are called
upon not only to maintain peace and security, but also to facilitate political processes, protect civilians, assist in
the disarmament, demobilization and reintegration of former combatants; support constitutional processes and
the organization of elections, protect and promote human rights and assist in restoring the rule of law and
extending legitimate state authority. Peacekeeping operations get their mandates from the UN Security Council;
their troops and police are contributed by Members States; and they are managed by the Department of Peace
Operations and supported by the Department of Operational Support at the UN Headquarters in New York.
There are 14 UN peacekeeping operations currently deployed and there have been a total of 71 deployed since
1948. In 2019, the Secretary-General launched the Action for Peacekeeping Initiative (A4P) to renew mutual
political commitment to peacekeeping operations.
Peacebuilding
United Nations peacebuilding activities are aimed at assisting countries emerging from conflict, reducing the
risk of relapsing into conflict and at laying the foundation for sustainable peace and development. The UN
peacebuilding architecture comprises the Peacebuilding Commission, the Peacebuilding Fund and
the Peacebuilding Support Office. The Peacebuilding Support Office assists and supports the Peacebuilding
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Commission with strategic advice and policy guidance, administers the Peacebuilding Fund and serves the
Secretary-General in coordinating United Nations agencies in their peacebuilding efforts.
Countering Terrorism
The United Nations is being increasingly called upon to coordinate the global fight against terrorism. Eighteen
universal instruments against international terrorism have been elaborated within the framework of the United
Nations system relating to specific terrorist activities. In September 2006, UN Member States adopted the
United Nations Global Counter-Terrorism Strategy. This was the first time that Member States agreed to a
common strategic and operational framework against terrorism.
Disarmament
The General Assembly and other bodies of the United Nations, supported by the Office for Disarmament
Affairs, work to advance international peace and security through the pursuit of the elimination of nuclear
weapons and other weapons of mass destruction and the regulation of conventional arms.
 There is no clear or consistent way to define a difference between terrorist acts and acts of war. Extreme
violence has been a constant tactic of war. Insurgencies and civil wars have always used asymmetric and
extreme means of combat as have counterinsurgency efforts. Almost all warfare has a decisive phase in
heavily populated areas that raises questions about the resulting uses of force, and every act of military
violence and/or intimidation has some elements of terrorist impact on combatants and civilians. The phrase
that "one man's terrorist is another man's freedom fighter," may be a cliché but that does not make it
incorrect. It is a fact that non-state actors facing serious governmental opposition feel they are forced to use
the population as both a shield and a weapon.
These problems are particularly serious in the cases where terrorism succeeds in escalating to the level of
insurgency and/or this occurs in an environment where there are many other incidents of serious internal
violence that have related causes like sectarian, ethnic, tribal, regional differences; deep political tensions;
or the failure of the state to provide effective governance. Terrorism is hard to define at the best of times. As
later parts of this analysis show, it can be impossible when hate crimes and individual acts become endemic
or when there is no clear dividing line between terrorism and insurgency.
 Open source material has major limitations that vary by country, conflict and terrorist/extremist
movement. Given countries are much more forth coming about the level of terrorist or extremist violence
than others, and differ radically in integrity of their reporting. Some countries label, arrest, and attack
legitimate political opposition as terrorists. Some limit their media to censored reporting because they fear it
will stimulate internal support for opposition movements, create hostile human rights criticism, and affect
foreign support and investment. This is particularly true of a number of Asian states, such as Myanmar, but
national differences within a given region are more the rule than the exception.
13
 The current definition of "terrorism" excludes state terrorism although it is at least as serious a source of
terrorism as acts by non-state actors. Many authoritarian and repressive governments kill, torture, punish,
and imprison in large numbers. As is discussed later in this report, the casualty figures coming out of the
acts of the Assad regime during the Syrian civil war have probably produced more casualties and human
trauma than all the acts of non-state terrorism in the world since 1970.
 Similarly, counterterrorism is often a form of terrorism and counterinsurgency is often a form of repression.
Far too many counterterrorism and military forces in states that have serious insurgency and terrorism
problem make excessive use of violence against their targets and the civil population. Killings,
disappearances, random arrests, torture, prolonged imprisonment, and rigged trials are all forms of state
terrorism, as is the excessive targeting of civilians and indifference to collateral damage and civilian
casualties. This form of state terrorism breeds response in kind but is reported - if at all –along separate
chains of human rights reporting.
 Calling the enemy movement or state a terrorist or supporter of terrorism has become all too common. Here,
the U.S. is no exception. It uses the label as carelessly as anyone else. The fact that states like Iran are
actively hostile to the U.S. and its allies, as are movements like Hezbollah does make them enemies. It does
not make them terrorist except when they actually do commit acts that can be defined as terrorism.
 Attribution, incident reporting and characterization, and estimates of deaths and injuries are all necessarily
uncertain. Even the most rigorous studies and counts must try to cope with uncertain and contradictory
estimates, the fact the perpetrator is not clearly identified, and highly uncertain reporting of deaths and
injuries. Injury data is particularly uncertain and generally only covers the most serious immediate effects of
an attack. The indirect effect of attacks in terms of destruction of property and sources of income, loss of
housing, forces displacement, follow-on medical and security costs is not reported.
Q.5 Explain the processes of negotiation and mediation with some examples.
Negotiation is a noun for the verb to negotiate; to try to reach an agreement or compromise by discussion. It can
also mean to obtain or bring about and objective by negotiating, to find a way over or through (an obstacle or
difficult path) or to transfer (a cheque, bill, etc.) to the legal ownership of another 1. Humans experience
negotiation almost throughout our lives, from the first stirrings of communication with our parents through the
full panoply of interactions with other humans for the remainder of our lives.
It is tempting to think of negotiation purely as a part of a commercial process or dispute resolution, but it is
much more than that. The subsequent definitions in the paragraph above hint at objectives and obstacles, but
these are only the purposes’ to which negotiation is put. I would suggest that, at its heart, negotiation is a tool
for learning and teaching ourselves, through interaction, about others expectations and the value of our own, by
allowing us to appreciate the context which affects the information that is communicated between the parties
and the effectiveness of the communication. Within the context of ADR negotiation is a form of communication
14
that has a definite objective; to resolve the dispute. It is also a process that will be successful if it overcomes or
finds a way around or through obstacles.
Negotiation is perhaps the freest form of consensual self help and party autonomy in the settlement of disputes
and, it is suggested, should always be the first step in the resolution of any dispute. Negotiation is a process two
or more humans undertake when they realise that communication is necessary to arrive at an accommodation on
some point of mutual interest.
The true existence of a dispute, or the falsity of the perception of a dispute that is not actually there, will only
become apparent once negotiation has been attempted.
THE NEGOTIATION PROCESS
Conditions for Negotiation
It is tempting, as negotiations can break out at any time and in any place between any number of parties, to
assume that negotiation as ADR is an exercise in free for all discussion and argument; this is decidedly not the
case. Even if it is not immediately obvious there are a number of conditions that are required before
negotiations can begin. The following are a mixture of necessary and desirable conditions for negotiation:
i. Identifiable parties (or their agents); clearly two or more parties are required to begin a negotiation.
ii. A subject of mutual interest; the parties must have and be aware of, a mutual interest or dependence. This is
the main driver for negotiation; if there is no mutual interest or dependence on the other then there is no real
reason to negotiate.
iii. Willingness; until all parties are willing to negotiate it will not happen (see sub paragraph i above regarding
the use of intermediaries).
iv. The desire to agree; (if possible). The desire and need to agree must be present along with the resources to
enable it to happen.
v. The most attractive solution; the alternatives, such as doing nothing, need to be recognised by the parties as
much less desirable than the option of negotiating, often referred to as each party’s BATNA 2. This is generally
not that difficult as negotiation can be, in comparison to almost any other forum for the resolution of a dispute,
low cost in time and money.
vi. Tempus fugit; it helps if the willingness is enhanced by the need to agree imposed by some external time
deadline.
vii. An enforceable (if necessary) agreement; the subject must be one that is negotiable; either from the point of
view of the parties or from the point of view of some supervising third party. To enable the negotiations to
succeed the negotiators must have the authority to agree – and bind – themselves or the organisation they
represent.
Circumstances and context are critical in any negotiation. The above list, while not exhaustive, contains
elements that are common to many of the negotiations that the author has undertaken; the essential or optional
nature of any of them will vary depending on the circumstances.
15
Stages of Negotiation
As set out in section 2.2.1 above, negotiation has a set of circumstances within which it takes place; however,
these circumstances are unlikely to occur in isolation. It has been suggested that negotiation has a distinct set of
phases3. Within these phases the circumstances can occur in any order and in any combination.
These phases of negotiation reflect the interactive and unstructured nature of negotiation. This is not to suggest
that no negotiations have structure; some clearly do but even within the most structured of negotiations, as the
process of communication takes place and the voyage of discovery of the other party’s position (and your own)
occurs, the phases can overlap, swap and even reverse or go through multiple iterations as new information
comes to light. In general then the phases are: -
i. Pre-Negotiation – Identification of a shared interest, requirement or dependency and selection of a forum or
medium for successful communication;
ii. Conceptualisation – Identify and communicate each party’s position and understanding of the subject in
question;
iii. Bargaining - each party evaluates their own and the perception of the other party’s position and
communicates their preferred solution (the bargaining phase); and
iv. Settlement – reaching and recording the agreement.
Application
As previously mentioned negotiations are an example of unfettered party autonomy and can occur at any time.
Negotiations should be the first step (once the realisation that doing nothing is not without cost and risk and will
probably be worse) in the resolution of any dispute. One of its benefits is its ubiquitousness in that everyone is
familiar with the process even if they are not necessarily fully aware that they practice it every day.
The question of when to apply negotiation to the resolution of a dispute would appear at first to be solely a
question of why you would not. It is most likely the most cost effective form of dispute resolution; it requires no
specialist advice or training to undertake (although both, as part of the process of preparation, are highly
advisable). It is as flexible as the parties wish to make it, can occur at any time and, as an expression of almost
pure party control and autonomy, it can supersede any other forum.
It is not uncommon in the authors experience for a negotiated settlement to occur: on the steps of the court 4, in
the court, during a court recess or after judgement; particularly if the losing party has not the funds to pay and
an agreement on what they are able to deliver can be much quicker, cheaper and with a higher chance of success
than attempting enforcement of a court order or arbitration award while standing in a queue of unsecured
creditors.
Negotiation can occur during arbitration, to enact a speedy and less costly settlement, to enable settlement of a
dispute after final award when enforcement is likely to be costly and/or time consuming.
In fact it is possible for negotiation to occur at any time that the parties consider that, given the information now
in their possession, negotiation is an acceptable alternative to whatever dispute resolution process they are
16
currently in (assuming they have kept an eye on the ever changing circumstances and its effect on their
BATNA).
The requirement for a successful negotiation is a willingness to communicate and a desire to settle. Much is
made of various negotiation strategies; two main strategies have emerged: competitive and problem solving.
Simply, they treat the negotiation process as either a contest, where the object is to give as little as possible and
gain as much as possible or as a joint problem to be solved with a joint solution.
It is suggested that the competitive approach, makes the finding of a mutually acceptable solution much more
difficult5. A problem solving approach is much more likely to result in a mutually acceptable outcome but
requires much more openness and trust6.
Advantages
Chief among the advantages of negotiation is cost. While nothing in dispute resolution is completely cost free
(with the possible exception of avoiding it in the first place, although this can also entail a cost arising from the
additional initial work necessary) negotiation as a central part of human negotiation is at least familiar and fits
in with the general processes of life.
Negotiation is also almost certainly the quickest form of dispute resolution. Dispute is not part of the productive
operations of any commercial organisation; even an organisation specialising in dispute services, does not gain
from disputes with its customers. The speed inherent in productive negotiations comes from the familiarity with
the subject and personnel involved in the dispute and the general access to the subject and each other. Speed has
two benefits: the ability to recognise and react quickly to disagreements or disputes and resolve them before
they grow and the clear benefit of being able to reach a resolution enables you to concentrate on the purpose at
hand. Time spent disputing is non-productive and wasteful.
The parties are face to face (figuratively if not always literally), a position that they inhabit throughout their
normal dealings. This can carry great advantages in: familiarity with each other aiding communication,
familiarity with the subject of the dispute and the minutiae of its gestation (which will, if nothing else, inform
the discussions). Familiarity with the process, the individuals, organisations and the subject will increase the
options for a settlement – providing that the parties wish to settle.
Flexibility is inherent in negotiations; the parties, while they may have to make efforts to meet and discuss, are
not at the mercy of a third party organisation or individual for the timing of their discussions. Indeed, it is not
necessarily a requirement of negotiations that they meet at all. Negotiations are flexible enough to be carried out
by telephone, conference call, internet or correspondence.
The negotiations are inherently private, unless the parties choose otherwise; there is no automatic access to the
substance of the negotiations by the outside world.
17
Disadvantages
Nothing is perfect and negotiation is no exception. As is often the case the strongest advantages can be the
source of the greatest weaknesses, and while lower cost is always a better option (all things being equal),
flexibility and speed can be double edged swords.
Speed is normally a positive thing in any dispute resolution process (see above); however; when it comes at the
expense of a fair hearing of both sides’ views and therefore the opportunity for each to come to an internal
resolution of the dispute, dissatisfaction and resentment is likely to be the result. If a party cannot reconcile the
outcome internally the dispute can re-ignite.
In the same vein flexibility can be misused by one party to the detriment of the other. Speed – in the form of
ambush – and power in the negotiations can lead to an unbalanced settlement 7. The inherent flexibility of
negotiation means that it is essentially unregulated, and in the absence of regulation the natural power of one
party can be used to influence the settlement to the detriment of the other, leading to resentment and perhaps
difficulty in enforcement8.
Negotiations, while normally private, are not privileged unless agreed to be so. It is possible for the substance of
the negotiations to be used subsequently and it is also entirely possible for them to create binding circumstances
that restrict the later actions of the parties9.
Negotiation can end as quickly as they begin. As a consensual process the parties to the negotiation can leave at
any time and as a very personal process, cultural differences can also have a very large effect on the possibility
of success any negotiations. As communication is to a large extent non-verbal10, relative cultural differences can
be devastating to successful communication even when the most conciliatory and deferential approach is taken.
The danger presented by these differences can be obscure and a serious problem for the unwary.
MEDIATION
Mediation is a noun for the verb to mediate; it means that a third party attempts to settle a dispute between two
– or more – other parties; it can also refer to a medium for a process or effect 11.
Mediation is not a recent phenomenon, evidence of mediation has been found in the records of many ancient
societies including the Ancient Greeks and Romans12, and is used in China to the present day. There appears to
be considerable evidence for the development of mediation in many human societies independently14.
It is possible, when considering one’s own experiences, to recall incidents of mediation throughout all walks of
life: from the neutral third party intervening in a dispute during a ball game in a children’s playground to
friendly (and perhaps not so friendly) differences of opinion in the work place.
Formal mediation15 has become an attractive alternative to the conventional route of dispute resolution through
the courts16. This reaction mainly to the ever increasing cost and time of litigation and the disenfranchisement of
the general populace that this caused17. A similar, if much later, point was made in support of ADR (and by
implication mediation) in general by Lord Woolf and his report ‘Access to Justice’18.
18
The Centre for Effective Dispute Resolution’s original definition of mediation was: - “… a voluntary, non-
binding, private dispute resolution process in which a neutral person helps the parties try to reach a negotiated
settlement”.
This was revised on the 1 November 2004 to: “… a flexible process conducted confidentially in which a neutral
person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the
parties in ultimate control of the decision to settle and the terms of resolution.”
I include both as they each capture an element of mediation that is perhaps lost in the other. Formal mediation is
a voluntary, non-binding but flexible process for the resolution of disputes. A third party is engaged by the
parties to assist them to negotiate in a non-adversarial way; however the parties maintain equal control of the
process, the decision on whether to settle and its terms. The mediator, helps to create an atmosphere within
which the parties can communicate, helps to break deadlocks, avoid direct destructive confrontation and
ultimately gives written form to the substance of the parties’ agreement. Mediation is often referred to, quite
rightly, as assisted negotiation, and this essence neatly captures both the form and function of mediation.
THE MEDIATION PROCESS
Mediation can be undertaken in any kind of forum, although in the authors experience the more complex the
dispute the easier it is to resolve if the parties are in the same physical space at the same time19.
Mediation is, at its heart, a process of communication that is assisted by a third party and as such requires only
that the parties wish to settle and a secure medium for communication. The communication can take place
directly between the parties, with the mediator observing and assisting the flow and constructiveness of the
communication; it can occur directly between the mediator and either party, alone or as a group. It is rare that
only one approach is used, generally all options are used as the dispute, moves through the various stages; the
more contentious issues often requiring separate caucuses, the issues where the parties are not in fact too far
apart are often concluded in face to face sessions with the mediator chairing the discussions.
While the author has been involved in mediations as conference calls and as electronic mail exchanges, it is the
traditional single venue over a single or series of days that is most common for the most complex of disputes.
Attention to the venue can bring many benefits; a comfortable and well served environment is much more
conducive to agreement than a cramped and unwelcoming one. The process of mediation, particularly those
with separate caucuses, can involve long periods of not much happening. If boredom or frustration set in it can
have a marked effect on morale and the possibility of agreement20.
It is often helpful when preparing the agenda for the mediation to look carefully at the positions of the
participants and construct a running order that places early emphasis on the contentiousness of the matters.
After the opening statements, beginning face to face discussions on subjects that the parties can, without much
effort, agree on can help to create an atmosphere on which the parties are agreeing. This will often gather its
own momentum and the participants develop a mindset of agreeing which obtains its own momentum. The
mediator can use this momentum to bring the parties along with the general flow of agreement. Even when
19
serious sticking points or disagreements are reached, it is possible to skip them with an agreement to consider
more fully in a recess period and come back to it later; this is still agreement and can be helpful in maintain an
atmosphere of cooperation.
Conditions for Mediation
Mediation can, like negotiation, breakout at any time; it is a consensual process, which in essence, requires only
the consent of the parties to take place. If during the process of disputing in court, arbitration or any other
formal dispute resolution forum, the parties decide to attempt to settle their dispute with the assistance of a
mediator, they are free to do so21.
The settlement of disputes by mediation is actively encouraged by most states across the world22.
Given the prevailing support from various bodies (see above), a large part of the legal community and the
perceived speed and low cost of the mechanism it is small wonder that mediation has grown in popularity with
hard pressed litigators
The benefits of mediation to overworked court systems have not been lost on the public funders of judicial
services across the world. The reduction in drain on the public purse by the simple expedient of encouraging
parties to settle their differences – in a self funding process – while improving access and speed of resolution is
most likely seen as a vote winner.
It is not unusual during the preparation and disclosure stages of litigation for the parties to become more open to
settlement. These stages are very much akin to the conceptualisation phase of negotiation, albeit that the
communication has been compelled by the dispute resolution forum. The knowledge gained about the other
party’s position and your own relative strength, can often leads to the right conditions for mediation to become
a desired option. This is assuming that the information is received and understood and its effect on each party’s
relative BATNA assessed.
Mediation, in the modern form, is more formal than negotiation; the formalisation having much to do with its
acceptance and promotion by institutional bodies who are concerned with the robustness of the process and the
regulation of mediators. Courts in particular are keen to ensure that something seen as an adjunct to the court
process should be suitably formal and that its conduct generates the appropriate confidence in its users and the
public. If it is going to receive official backing, and be successful in providing saving in the public purse, it
must engender confidence in the wider (voting) public.
Advantages
Mediation in general has a number of advantages over third party resolution of disputes. It is consensual,
flexible, fast (comparatively) and low cost (again comparatively); as the control of the process and its resolution
does not lay with external bodies, but with the parties they are, in my experience, more comfortable with the
process.
The process requires consent at all points to succeed. Even in the case of one party having to enforce an
agreement to mediate23. A prior agreement to mediate clearly has to exist for the enforcement to succeed;
20
agreement that would have required consent. The consent can be the basis for agreement (see paragraph 39
above regarding the use of the running order and the spirit of agreement).
The process is flexible; in essence, while preparation is necessary, it is possible to arrange a mediation hearing
within a few weeks, and even less for conference call and video conference versions. The degree of flexibility is
generally only limited by the parties’ willingness to cooperate (given suitable support from the mediator).
Flexibility also extends to the way and how much of the dispute is settled. It is perfectly acceptable for the
parties to remove many of the items in dispute by agreement in mediation, even if some remain for third party
determination.
This flexibility is also reflected in the speed with which things can be settled. A carefully worded settlement
agreement can, if it deals with all aspects of the dispute settlement, monitoring of the agreement and the ability
to repair any problems in the compliance procedures, can maintain the momentum for a successful conclusion,
without the need for time consuming enforcement proceedings. This is in addition to the general benefit of
speed that comes with not being dependant on a third party institution or statutory determiner.
Cost is in the direct control of the parties; their desire to settle, their cooperation with the mediator and the
process, can make mediation the least costly of the formal ADR mechanisms.
The process is inherently privileged; in fact there is much evidence that, for the process to work, privilege is
essential24. Parties must be free to explore all areas of the dispute and any potential solution, however
unpalatable they may first seem. For a party to be able to use the commercial imperative to settle at a level far
below that which they may normally expect, and which they would be forced to pursue in normal third party
determination ADR, they must be protected form the consequences that would normally flow from the
expression of the willingness to settle at a particular level.
In commercial disputes parties will be – or should be – acutely aware of the value of money. A settlement now
can be worth much more than one in six months or two years from now. And this does not just mean the
inflationary net present value either; the finance costs of money, assuming you are able to access it, is much
higher than the inflationary cost and the commercial cost of cash flow difficulties and the damage that does to
good will and your ability to exploit opportunities and avoid other disputes, can be devastating. All of these
things can make an early settlement much more valuable than any pure pursuit of ‘the right answer’.
In an international setting, careful selection of the mediator can assist enormously with cultural differences
between the parties. The purpose of the mediator is to facilitate communication and a common understanding of
the cultures involved can help the parties avoid any of the pitfalls of cultural misunderstanding.
Disadvantages
Mediation is not without cost; and the cost is not cheap. Mediation can be, and normally is, much more cost
effective than other forms of dispute resolution; but only if it succeeds. Should you fail to settle all mediation
will have done is to delay the final resolution of the dispute and caused the
21
The process is consensual and therefore vulnerable to breakdown at any time even with the assistance of the
mediator to avoid it. (See paragraph 53 above for the advantages of a skilful mediator in avoiding the
breakdown.)
In my experience mediation is also vulnerable to misuse by parties wishing to delay settlement. It is particularly
common in construction and engineering disputes for a stronger party to attempt to delay settlement and bring
considerable commercial pressure on a disputant to gain a more favourable settlement or even avoid the debt
altogether by forcing the failure of the other party25.
Mediation is non-binding until a settlement is reached; even then if the agreement is not honoured (or fails to
properly deal with changes in circumstances or unintended consequences) it will need to be enforced, which
will generally involve a court. Some of the pain of this can be avoided by ensuring the reasonableness of the
agreement, having the court issue the agreements as an order as in court annexed mediation or by turning the
mediation into an arbitration and having the agreement issued as an arbitration award.
COMPARISON
When used in the search for a solution to a dispute, negotiation and mediation share much common ground;
indeed mediation is essentially assisted negotiation. However, they are different and, it is suggested, most
appropriate in different circumstances and at different degrees of dispute; the less able parties are to
communicate the more likely they are to need mediation.
Cost
Negotiation should in most instances, be cheaper than mediation, assuming that a settlement is reached; for this
to not be the case mediation would have to reach a conclusion much faster than the equivalent negotiations,
sufficient to offset the additional cost of mediation’s mediator, support staff, venue, preparation time, agreement
drafting etc.
Speed
Negotiation is quicker than mediation in most cases. It requires no prior preparation 26 or even a venue.
Mediation requires some preparation; the mediator will need summaries of the dispute and supporting
information, the venue and support facilities will need to be arranged and the process of mediation – particularly
with separate caucuses – is more clumsy and time consuming than direct negotiation. Of course the mediator as
well as all of the parties representatives will need to be available.
Flexibility
Negotiation is the most flexible of all the ADR mechanisms; it is completely under the control of the parties.
Mediation while still flexible is a process which the parties are undertaking in the presence of a third party.
Each party is able to disengage at any time, like negotiation, but the slight sacrifice which must surely occur in
mediation with the presence of a third party, is the reason that mediation can work when negotiation fails. The
mediator, helping the parties to communicate, must have some level of control or influence (otherwise they
would serve no purpose) even if it is just in the mind of the participants.
22
Party Autonomy
The parties have a great deal of control over the process of mediation, although not complete control. The
availability of the mediator, how they exercise their influence or the impression they create by making
suggestions or just asking questions will vest some element of the process outside the parties. Negotiation is
wholly and completely under the control of the parties.
Settlement and Enforcement
Settlement in mediation is arrived at, with some assistance, by the parties, but the record of the agreement is
made by the mediator and is therefore independently recorded and by a professional who should be aware of the
requirements to make a binding and enforceable agreement. Negotiation is at the mercy of the ability of the
parties to properly record it, assuming that the agreement is actually what it seems – the propensity for
participants to hear what they want to hear and ascribe meanings to an agreement that are derived for their own
point of view only is great.
23

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