M Ali Siddiqi looks at a contentious issue
Mediating international issues – The current global scenario is beset with conflicts and violence both within the states and between the states. This has become an unusual phenomenon attracting global attention owing to ever-spreading reach of media. It is quite obvious that this consistent state of conflict is devastating in essence and has already caused widespread worry across states. The conflict has been exacerbated due to the endemic violence associated with it that has ruined lives of millions of people. In wake of the instability caused by consistent disruptions in international affairs the global community as a whole has arrived at a consensus that widespread mediation is required to be undertaken to tackle them and fast. This has brought mediation to the forefront of international affairs and it is becoming one of the most effective ways of responding to proliferating conflicts and the numerous threats that international affairs of the current day. Indeed, there is considerable empirical evidence to suggest that mediation has been the most popular way of dealing with international conflicts since 1945.
The lead in this context is provided by the United Nations and its methodologies in this respect are numerous and varied and the relevant articles of its charter expostulate that the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice. Accordingly, it is now recognised that a set of diplomatic structures are put in place to deal peacefully with international and other conflicts and comprise direct negotiation between parties to a conflict, various forms of mediation and binding methods of third-party intervention through arbitration and adjudication.
The initial problem with mediation is that its practitioners wanted to keep it a mysterious practice just to portray as an art form taking place behind closed doors. There were many points of view opposing this approach did not think their field of study was susceptible to a systematic analysis. The dreary conclusion was that no particular pattern of behaviour could be discerned making the process into a generalised practice devoid of clearly laid down rules and consequent results. However with the experiences getting accumulated and results getting more positive, more enlightened approach has now taken shape that has considerably aided the process and has produced positive results. Mediation is now recognised to be a purposeful action designed to remove any misunderstanding through extending negotiation and preferring to emphasise the neutral and impartial nature of all mediators.
With the passage of time the remit of mediation has grown manifold and now it covers conflicts between states, within states, between groups of states or organisations and between individuals. Mediators enter a conflict to help those involved achieve a better outcome than they would be able to achieve by themselves. Once involved in a conflict, mediators may use a wide variety of behaviours to achieve this objective with some suggesting a settlement yet others refraining from doing so. Some mediators are interested in achieving a compromise, others are decidedly not. Since mediation is now defined as a process of conflict management, related to but distinct from the parties’ own negotiations, where those in conflict seek the assistance of, or accept an offer of help from, an outsider to change their perceptions or behaviour and to do so without resorting to physical force or invoking the authority of law. Though the contours of such definition are very wide yet there is a good opportunity to apply them in variable situations.
In the meanwhile, mediation process has made its practitioners to recognise that any mediation situation comprises parties in conflict, a mediator, process of mediation and the context of mediation. These elements constitute the essentials of the entire process and together they determine its nature, quality, and effectiveness, as well as provide reasons why some mediation efforts succeed while others fail. It should be borne in mind that mediation is an extension and continuation of peaceful conflict management involving the intervention of an outsider that could be an individual, a group, or an organisation into a conflict between two or more states or other actors. It should also be kept in view that mediation is a non-coercive, nonviolent and ultimately, nonbinding form of intervention. It is quite clear that mediators enter a conflict to affect, change, resolve, modify it or influence it in some way.
Nevertheless, mediation operates on an ad hoc basis only and there is hardly any chance that it becomes permanent in many cases. It is widely recognised that mediators bring with them, consciously or otherwise, ideas, knowledge, resources, and interests of their own or of the group or organization they represent. Mediators often have their own assumptions and agendas about the conflict in question. It is however noted that the actors involved retain control over the outcome of their conflict as well as the freedom to accept or reject mediation or mediators’ proposals.
In the specific context of mediation related to international affairs it is particularly beneficial in case of long-drawn conflicts with no end in sight such as the Kashmir issue. This aspect raises questions about the methods mediators adopt to carry their activities forward. It is observed in this respect suggest that in general mediators enter a conflict to change its structure, dynamics and termination. They do so by first trying to understand the conflict then arranging for some communication between the parties, establishing some protocol, delineating an agenda to discuss and finally helping the parties save face by rewarding the concessions made by each party and recommending possible solutions. As to the question of how involved a mediator can or should be, it could only be said that the behaviour of the mediator may range along a spectrum of increasing levels of intervention. In some cases, a mediator may engage only in facilitative behaviour, while in others, a more radical intervention may be required if the parties are to be nudged from their inflexible positions.
It is now observed that the current international mediation efforts are hardly random as mediators not only decide upon a strategy but the behaviour adopted by them during the course of mediation is also considered to be recognised and accepted by the conflicting parties. It is however advised that in international mediation it is advisable to ensure that there exists a reciprocal relationship between a mediator, the conflict itself, and the parties involved. It is now widely known that at times, mediators can be quite active and use significant resources and at other times all they can do is act as the go-between. In fact it is never hidden from effective mediators how to identify crucial actors and which resources to marshal and more importantly they are not easily discouraged by the setbacks they suffer. It has come to the fore that the current mediations techniques are mostly dependent upon resilient monitoring and consistent vigilance and follow-up. It should always be kept in view however that mediation is never an easy exercise and should not be construed to be as such. With the passage of time mediation has become a crucial tool in international affairs. The Weekender