Conflict Mediation

Conflict Mediation

Hello, and welcome to this module on conflict mediation. I'm here today with Ambassador Donald Planty, who is a Senior Peace Fellow at the Public International Law and Policy Group.

Welcome, Ambassador Planty.

Thank you, Katie. Nice to be here.

What is mediation?

To begin, could you please explain what mediation is? Mediation is a voluntary and structured process of dispute resolution in which a neutral 3rd party known as the mediator assists parties in resolving their conflicts.

I'm going to interject here that voluntary and structured process. That's very, very important to keep in mind as we go through this, that the parties are there voluntarily, because they. Have been unable to resolve their issues or disputes on their own, and they have agreed to a structured process. There are rules and regulations that govern the mediation, which we will go through later.

So keep those 2 things in mind as we go through this. That's a voluntary process and very structured process. The mediator facilitates communication, helps identify underlying issues and guides the parties toward finding a mutually acceptable solution. The goal of mediation is to promote collaboration and empower the parties to reach an agreement on their own terms.

This is important. There is a quote by Arthur Gold, a mediation specialist, that explains the special role of the mediator quite well. Gold said, the golden rule for mediators should be the safety slogan. Stop, look, and listen. Stop is doing nothing until you have learned. Look is identifying the parties and their problems.

Listening is the most important of all.

Why do third parties become involved?

Now, why do third parties, such as third states, How can third parties become involved in mediations or become mediators? Interesting question. Third parties may volunteer to mediate, helping to foster open communication and collaboration, while understanding that all discussions must be kept confidential.

They may step in in times of a deadlock in the negotiations, when there are communications problems between the parties, when there is hope for outside pressure to facilitate communication. Or to bring the parties face to face if they may be unwilling to meet otherwise. I was involved, personally involved in a negotiation that was mediated and I represented the United States as an outside party.

And I was constantly being asked by one side or the other in the mediation to help promote communication, to help get their points across to make sure they were understood while they had confidence in the mediator. There were times when they felt an outside party like the United States and in my persona could be helpful to moving the negotiations along into having a successful mediation.

Thank you for that insight.

What are the key principles of mediation?

What are the key principles then of mediation?

They are three. Neutrality, which of course is critical. The mediator must seem to be neutral, not taking one side or the other, impartiality, which goes along with neutrality, and perhaps most important confidentiality.

Neutrality is, of course, the concept that the mediator is not bias toward one party or the other, nor is the mediator bias toward a particular outcome, whereas impartiality is when the mediator acts more like a referee and ensures that all sides are treated fairly. They are also held accountable and adhere to the agreed upon rules of mediation. It's like impartiality. Think of a soccer referee or a referee in the sports game that enforces the rules equally on both sides. And finally, confidentiality is a critical function of all mediators.

If one side of the other feels the mediator is not protecting the confidentiality of the discussions. It can easily lead to a breakdown. Active listening and profound empathy are crucial components in the mediation process. Remember, the mediator's goal is to facilitate a fair and mutually acceptable resolution. The mediation, it's a scenic one on is to make sure that the outcome is mutually acceptable.

How can third parties contribute?

So, we've touched upon why third parties may become involved. How can third parties then impactfully contribute to the mediation?

I mentioned my own role as a third party representative of the United States in a negotiation that was trying to end a conflict that had gone on for 36 years. So there was a huge amount of distrust and mistrust from the very outset, from the time the two sides sat down at the table with the mediator.

So, we helped from the outside initially build an atmosphere of trust by helping clarify the issues and interests of both sides. Because the 2 sides have been at loggerheads for nearly four decades, and their interests were embedded and the issues were fuzzy at times.

And so we also help parties communicate more constructively by encouraging them to, you know, meet informally and float ideas informally, to redefine the conflict, to identify realistic constraints, invent options, look at package deals, provide incentives. One of the things we did regularly and informally, because we were a 3rd party, was to suggest an option of 1 or 2 or, and as 1 of the parties approaches, we would recommend an option for them to try.

Sometimes it works, sometimes it didn't, but nevertheless. The two parties and the mediator also found it useful to have this input from the outside.

What is the importance of cultural sensitivity?

Thank you, Ambassador Planty. What then is the importance of cultural sensitivity in mediation?

I would say cultural sensitivity is critical. It's often overlooked. But it's a critical component of any mediation and the mediation that I was involved in as a 3rd party representing the United States that I've mentioned, it was very interesting because the parties at the table were Spanish speakers and from a Central American nation, the mediator was a European diplomat, a French diplomat sent by the United Nations. So there wasn't an immediate cultural connection there. And so, the, the mediator was not a Spanish speaker or spoke some Spanish, but was not fluent and was not, completely on top of some of the cultural issues.

So recognizing the, the significance of cultural sensitivity is very important to the success of the process. Now, you know, the French diplomat mediator learned quickly turned out to be an excellent mediator, but he had some of these issues to deal with initially. Cultural differences, of course, can have an impact on communication styles conflict resolution issues, concepts of legal representation, and mediators need to be aware of how words and actions from the parties and from themselves are being perceived.

Legal advisors need to be aware of and respect these cultural nuances to build effective relationships. So, cultural sensitivity and adaptability are key to building trust and rapport with the parties involved in the negotiations. Thank you so much.

What does mediation look like?

Getting then into the process, can you speak to what it looks like to mediate?

Yes, this this gets into the nuts and bolts a little bit, but it's very important to understand these facets.

First, it is important to keep in mind that is a process which starts from zero and builds toward a solution or an agreement or a series of agreements, which can comprise an overall comprehensive agreement.

The process has to be explained or introduced. The mediators role needs to be explained: What the mediator can and cannot do (what the ground rules are for the mediation). Certain things are unacceptable in a mediation. As almost happened in the 1 that I alluded to. One side can't leap across the table and try to strangle someone on the other side of the table, the rules don't permit that. Sometimes the discussions get so heated that one nears those points. So, to keep in mind, the goal is to create a productive climate at the table for the mediation.

Reassure the parties that they will be heard. Ensure acceptance of the rules and begin to establish trust.  Without trust, there will never be an agreement.

Now with that, with explaining the process, and we must try to identify and frame the issues within the process.

One of the goals is to create an environment in which the parties can freely express their concerns, clarify essentials of the dispute, invite each party to offer their perspectives, summarize the issues for clarity purposes, use non blaming language to ask about conflict, list disputed issues, emphasizing shared concerns. I can tell you in the negotiation that I mentioned that the United States played a friend of the process, an outside role, the first day that the parties sit down at the table one side presents its issues, and the presentation can be incoherent. It can cover multiple items that don't fit neatly together. It can be a hodgepodge. And so, the other side is staring blankly at the sort of free-flowing expression of needs and desires and concerns. And, and it is not, shall we say, cohesive, and the other side then presents its position and it can be equally confusing and equally disjointed and can be confrontational.

So, framing and identifying the issues requires a lot of work up front. They're often not clear, at least in the first couple of sessions. So that then takes us into problem solving. You're immediately in problem solving when you have presentations that are either far apart from one another or don't match up or shift from major issues to minor issues.

So, it's necessary to focus on people help the parties transcend their adversarial relationship and establish a partnership that takes work. Facilitate communication, redirect discussions from accusations to constructive proposals. There will be a lot of that. Help parties get past deadlocks. And on the substance, look for an agreement. Strive for an agreement, which offers the greatest possible satisfaction of all the parties interests.

During the problem solving process, mediators highlight commonalities and shared interests. You have to take those initial presentations. That don't seem to contain common ground anywhere and try to steer them and mold them to a set of shared interests. Where there are commonalities, show both parties that those do exist emphasize progress, no matter how small invite proposals for agreement, encourage creative thinking.

That's important. Try to get both sides out of the box. They come with a set of ideas that can be rigid and appearing uncompromising. The mediator has to encourage thinking outside the box, creative solutions to get some movement. In the negotiation and function as an agent of reality, as I mentioned, sometimes some of the initial presentations take flight from reality.  They, they are wish lists that are, in reality, unachievable, everyone reaches for the stars (initially). And so the mediator has to bring both sides down to earth and make sure they understand what is within the realm of the possible and what isn't. Facilitate direct dialogue. That is important in a mediator and who the mediator is, or is not. A good mediator is a clearly a third party and is encouraging both sides.

The mediator is not necessarily fostering the dialogue himself or herself. They want dialogue between the parties to help construct package deals. Yes, that is a key function of the mediator where he or she sees commonalities – quickly grab them, try to roll them into a package and get agreement. And one of the things we did in the negotiation I mentioned from the outside was, and this was adopted by both sides and the mediator, was encourage agreement on smaller points, what we call sub agreements or sub accords to build sort of a, if you will, a culture of agreement, and we started out with some of the smaller or easier issues, but as we went through and built on the sub agreements. Little package deals, it helped create momentum toward the overall agreement.

So finally, settlement, what does settlement look like a settlement? Of course, we'll summarize the points of the agreement, ensure there's adequate specificity so that everybody understands what exactly has been agreed to, establish a dispute resolution procedure for issues that arise after the settlement has been reached, and obtain binding commitments. This is very, very important that both sides understand that the mediation outcome is a binding commitment.

In fact, in the negotiation that I mentioned, where we were outside advisors, we encouraged in the end, the agreement itself said, called it a lasting and an enduring peace. They named, they put that right in the name of the agreement to stress this concept of a binding commitment.

What are the attributes of an effective mediator?

Let’s discuss now the attributes of effective mediators.

• The first is established credibility. Let's look at that because credibility is everything. That means integrity. A mediator who has integrity is respected and is reliable, shows evidence of balance and fairness, is inclusive (emphasizes inclusivity and considering perspectives from all stakeholders). Those are 3 components of credibility.

• Attributes, which facilitate communication of course, the mediator should use his or her credibility to facilitate communication.

• Composure, that is keep your wits about you.

• Sensitivity to culture, gender, emotions. We talked about that a little bit in terms of dealing with other cultures, other languages, sensitive to the differences and some of the imbalance there, perhaps between the mediators experience and the experience of those negotiating at the table.

• Empathy. Exhibit empathy to both sides.

• Problem solving skills. One must demonstrate creativity and flexibility and have a patience and persistence. Those are essential qualities. These mediations can be. So, the mediator has to be both patient and persistent.

What are mediator biases?

And what are some mediator biases to avoid?

There are a couple of common biases that I have seen, but with the mediator, the notion that agreement is always good that has to be set aside. Agreement can be good, but it is not always good. One has to be careful of agreement for agreement's sake. That's always a temptation.

Instead of that the mediator has to push for a settlement only when a positive bargaining zone exists. What do we mean by a positive bargaining zone? That refers to a range of terms or options in a negotiation. Where both parties involved perceive the potential agreement as beneficial and satisfactory as possible, but it has to be beneficial to both sides. It has to be satisfactory to both sides. So, in this zone, if there's a positive bargaining zone, there's an overlap between what each party is willing to accept, or find acceptable, allowing for a mutually agreeable resolution. That's critically important - that has to exist. If not the, the agreement will not stand up. It will not stand the test of time.

So this contrasts with what we call a negative bargaining zone where the proposed terms fall outside the acceptable range for one or both parties, making it challenging to reach a consensus. And that happens. There are issues where one party simply cannot agree with the other. And then a decision has to be made with about how strongly to pursue one or several of these points and whether they can be roped into the positive bargaining.

So, in the positive bargaining zone, there's room for compromise and negotiators can work together to find solutions that meet their respective interests and needs. The mediator needs to recognize that all through the process so that the agreement in effect is an agreement that will hold and not just an agreement for sake of agreement.

There's always that big temptation to say, “let's get an agreement and get out of here.” And second, that closure is always good. I mean, closure is a wonderful feeling, but it has to be genuine, and a mediator can't settle sometimes for the first acceptable solution. I've seen these first acceptable solutions are like cameras. They look good, they sound good, but they don't really deal with the essence of a problem or an issue. And they will not stand up. So then the mediator has to assess whether there is a potential for a better agreement, sounder agreement. Go back to that positive negotiating positive bargaining zone issue and try to get a deeper agreement that will, that will in effect hold up.

What are essential communication skills?

Thank you for that insight. What are some essential communication skills then for mediators?

Well, some of them may seem obvious, but it's worth going through them.

First, clear and effective communication is of paramount importance. A mediator must be able to be clear and be an effective communicator to both sides. Clear communications is the cornerstone of a successful mediation, and it fosters understanding and collaboration among the parties involved. I can't stress that enough.

Second, two specific techniques that significantly contribute to clear communication are the use of open-ended questions and paraphrasing.

What do we mean by that? Open ended questions are devices that mediators can use to encourage parties to share more information and delve deeper into their perspectives. In other words, ask probing questions, questions that a given point may not totally define. So the mediator needs to probe and delve and prod and look deeper into a question or an issue and paraphrasing helps ensure accurate comprehension by restating information in one's own words, confirming mutual understanding between the parties. This may seem obvious, but it is not at the table and frequently the two parties will be talking by each other. I mentioned how chaotic some of the initial meetings might be because of the need everyone feels to present their own laundry list of issues and problems that don't match up.

But many times, one side will make a presentation or the other will describe an issue and it's not really clear to the other side what they're talking about. The ability to understand fully what one party or the other is driving at and if need be, sort of recast what they've said, reformulate what they've said so that the other party understands it better or understands it at all.

This is a sort of informal skill that's needed at the table to be able to say, “Thank you for it for that presentation. Let me see if I can restate it in the following way so that the other side captures it better” because the media are seen from the body language, the frowns, the scowls, the skulls, the shaking of heads that the other side either didn't understand it and accept what was being said. So this ability to be nimble and you know, on your toes and to be able to intervene and say, “and now let me restate that.”

And finally, I'd emphasize the pivotal role of nonverbal communication and body language and mediation. Nonverbal clues often convey emotions and intentions more strongly than words alone. As mediators, being attuned to these subtle signals enhances our ability to understand the underlying dynamics of the conflict. So pay close attention to body language, facial expressions, and gestures throughout the mediation process. Reading the body language and paying attention to the forcefulness of a presentation, you know, the facial expressions involved, gesticulations and gestures, all that is very, very important and mediators need to be able to focus on it and and use it.

It's a very important part of getting to yes. So in conclusion, effective communication coupled with the use of open ended questions, paraphrasing, keen awareness of nonverbal cues, forms the bedrock of successful mediation. These skills not only facilitate understanding, but also create an environment conducive to finding mutual agreeable solutions.

How do mediators handle emotions?

Now, Ambassador Planty, as you said, peace negotiations can become heated and indeed personal. How do mediators then handle these emotions?

With care. Emotions do often run high during periods of conflict and can have an impact on the mediation process. In the specific conflict mediation I was involved in as an outside party, the one side was comprised of the leaders of the long internal conflict, the commanders of the various fighting factions, they were in Spanish, comandantes are commanders of guerrilla factions that, you know, will pursue the conflict and from mountainous and rough terrain in the country, an issue for almost 40 years.

And these four men were the key interlocutors on that side of the table. So you can imagine the emotions that they brought to the table and the powerful persona that they were. And so, the mediator, on that side alone, had his hands full managing emotions, making sure he was creating a safe space for expression.

These are crucial aspects of effective mediation and so, some strategies to achieve this calm and more peaceful environment, the mediator should make sure that he, she is seen as an active listener. This is critical. I emphasize this throughout my career where I feel that in many international negotiations and international diplomacy, one side or the other is not listening and I have many specific examples of that. So the mediator must demonstrate genuine interest and focus on the speaker or speakers.  Use verbal and nonverbal cues to show understanding, such as nodding and paraphrasing that can be important. Avoid interrupting and allow the speaker to express them or speakers to express themselves fully. That's also critical - let them go on no matter how long it takes and then attempt to synthesize or paraphrase key points from that. But don't interrupt their presentations.

Empathy, which we mentioned earlier. Acknowledge and validate emotions without judgment. Put yourself in the shoes of each party to understand their perspectives. Express empathy through both words and body language. Show them physically that you understand what they're saying and that you empathize, with your body language - nodding and, or even pointing their number, gesticulating a number of things that the mediator can do short of,  signing on the dotted line and to establish trust this perhaps is intuitive, but, it has to be reinforced, reinforced, reinforced throughout a mediation because in the mediation negotiation, I was involved in one of the sides committed a grievous error near the end of the process where a final agreement was in sight, and it threatened to scuttle the entire process. In fact, it suspended it for a while, and it was a critical error. It led to a diminution and trust on the other side of the table. So to establish trust, one has to communicate the commitment to impartiality and neutrality constantly every day, day in, day out -emphasize the confidentiality of the mediation process, build rapport by showing respect and understanding,

Cultural sensitivity - be aware of cultural differences in expressing and managing emotions. We've covered that. Adapt your approach to align with cultural norms and expectations. Foster an inclusive environment that respects diverse perspectives. Again, back to listening, even though one of the presentations you think might be wildly off the mark, listen to it and try to think how, you can use it or redirect it in a more constructive way.

Create a comfortable physical environment. Choose a neutral and comfortable space for the mediation. That's important. A place where people like to go to every day where they don't feel constrained or physically uncomfortable. Arrange seating to promote equality and openness. That's also important.

Ensure privacy to encourage candid expression.  

Set ground rules. We looked at this at the beginning a little bit established guidelines for respectful communication at the beginning of the mediation. It's important that both sides understand that insulting one another is not conducive to a successful agreement and makes the mediators job more difficult.

Encourage parties to express themselves assertively, but without resorting to aggression, outlining consequences for any breaches of agreed upon rules.

Encourage open communication foster an atmosphere where parties feel free to share their thoughts and emotions, discourage blame and focus on problem solving, reinforce the idea that all perspectives are valid and finding a resolution.

I remember in the specific one I've alluded to early on launching blame was a fun thing to do. There was plenty of it. “It's your fault. No it's your fault.” And that that has to be dealt with and the mediator has to get past that point.

Provide breaks during the during the negotiation mediation. This is sounds perhaps like not at a terribly se serious point, but it is recognize when emotions are escalating and suggest short breaks. And, and two other international negotiation negotiations I was involved in where I was chairing one of the working groups and the negotiations, the most emotional one, I would regularly use this tactic and it inevitably diffused the moment. I would take one party or the other into the coffee shop and sit them down and say, now, look, this isn't going to work. You know, what you presented is impossible. It's outside the realm of reality. Now, let's, please do something more realistic.

Try the following and I'd give them some language and we'd go back in and properly chastise, you know, the person would sort of fall into line and we could move forward.

Allow parties to gather their thoughts and emotions during these breaks. So if there is a person or two that needs, you know, a talking to, take them aside into the coffee shop or wherever, and deal with it and leave the others behind in the room so that they can gather themselves and think about what has just happened.

Use breaks strategically to diffuse tension and prevent escalation. That is a time honored, it sometimes is ignored, but it is ignored to the detriment of the process. It takes more time, but it is worth it. It often gets by a point of tension and prevents escalation.

Use caucuses effectively. That's another thing I found to be effective in practice, conduct private sessions to allow parties to express themselves without fear or judgment, and that is the pull aside in the coffee shop with one or two of the key people. Use caucuses to explore underlying emotions and interests. You know, “yes, what do you mean by that? You know, you just use very loaded language in there that did nothing but inflame the process and not was not constructive.”

Share relevant information between the parties cautiously to remain trust. You maintain trust. You can do that, but you got to be very careful about it that you don't go past the point that's acceptable. You can take you. What, you know, from one side to the other, but it has to be done cautiously and with care.

Manage your own emotions as this is in the case of the, you know, the mediator. It's very easily easy to get caught up in the moment and, you know, to get to let emotions get the better of one, but it's imperative to stay calm and composed - modeling the behavior you expect from the parties in, in yourself. It's tempting sometimes to, you know, make a forceful statement or raise one's voice or otherwise pound the table, but you can't do that. That is counterproductive. You have to be mindful at all times, practice mindfulness techniques to manage stress and maintain focus.

It's a stressful job, you know that going in, so you have to manage that dimension very carefully - you have to be the role model. The people at the table, they can't see in you a hothead or someone who flies off the handle very easily and just encourages dysfunctional activities on their part.

So, finally, after the mediation session, check in with the parties to ensure they feel heard and understood, stand by the door as they're filing out and say, you know, “everything okay?”

 Shake their hands, pat them on the back, and you'd be surprised how much that is appreciated. It instills, some sense of partnership between the mediator and the sides, you know, other than just sitting in your chair and watching them stock off, be there, supporting them at every turn in the morning, be at the greet them, be at the door to greet them. Don't wait for them to be seated formally at the table and make a grand entrance. Read them coming in make sure they get a cup of coffee or a pastry or something. Provide resources or recommendations for further emotional support if necessary, that sort of thing. Reinforce the commitment to ongoing communication resolution.

A lot of this you can do informally without making a scene, but it's nevertheless appreciated it and it helps build trust. That's the whole thing. Every movement, every moment you're in the building trust business. Above all, mediators must remain calm and composed, fostering a positive atmosphere.

Final remarks

 Thank you so much. Ambassador Planty. Is there anything else you'd like to add as we close this module?

Well, thank you. I believe in these processes very strongly based on my professional experience. And I would just like to stress that mediation is a powerful and transformative tool for resolving conflicts, transcending cultural boundaries, fostering understanding, all the things we've discussed.

As mediators, a commitment to neutrality, active listening, and greater problem solving, serves as a catalyst for positive change. And I think the process that I was involved in as a friend of the process representing the United States, never would have happened without a mediator without mediation.

So it is has been proven time and time again, mediation has always been a positive tool in the private world and the business world and so on, but it can also be an important tool in addressing international conflicts.

Thank you so much, Ambassador Planty for your time. That concludes this overview of conflict mediation and thank you to our audience for watching.