Use of indigenous language for conflict resolution

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article examines the role of language and communication in the emergence, management and resolution of conflict, with particular attention to indigenous languages. The author argues that miscommunication and non communication contribute directly to conflict, that conflicts must be understood within their social context of values, fears, interests, attitudes and relationships, and that language carries both positive and negative powers, since proverbs, songs, stories and myths in one community’s language may portray another community negatively. Because culture and language are inseparable, the paper contends that any effective conflict resolution instrument must take cultural and linguistic factors into account, and that century old indigenous mechanisms grounded in empathy, sharing and cooperation retain their value for promoting peace and social order. The article then situates communication within peacebuilding, tracing its roots in Communication for Development, distinguishing four channels of communication flow in conflict settings, and setting out the concept of positive peace as social justice, political equality and non violent means of managing grievance. The author reviews United Nations definitions of peacebuilding from the 1992 Agenda for Peace onward, notes the difficulties of evaluating long term and intangible peacebuilding outcomes, emphasises that reconciliation must be rooted in local social and cultural contexts, and closes with the International Year of Indigenous Languages 2019 and the theme of International Mother Language Day, a day established at the request of Bangladesh in memory of the language movement.

KEYWORDS *

Language and conflict, indigenous languages, communication, peacebuilding, reconciliation, positive peace, culture, Communication for Development, International Mother Language Day, conflict resolution, intercultural dialogue

INTRODUCTION

Human communication is inseparable from human language. People communicate with each other with language. Miscommunication and non-communication can contribute to conflict. It happens when communication is not enough with information or a misinterpretation of the words intended but a different meaning by which it is the beginning of miscommunication.

Conflict is a situation whereby individuals, groups, or countries are involved in a disagreement over an issue. Usually, the conflict between different ethnic groups often results from different language contact. There are instances when an indigenous language has a proverb, a song, a story, or a myth that paints another community or other communities in a negative light. An indigenous language or autochthonous language is a language that is native to a region and spoken by indigenous people. An effective conflict resolution tool should take cultural and linguistic factors into consideration. Conflicts may be categorized with respect to whether they occur at the micro-micro, micro-mezzo, mezzo-macro, or micro-macro levels i. e. among individuals, individuals and groups, groups, and communities, and between community groups and government or within private or civil society organizations. Usually, conflicts are the result of problems created by people.

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‘Conflicts must be understood in their social context, involving values and beliefs, fears and suspicions, interests and needs, attitudes and actions, relationships and networks’. The conflict created from misunderstanding. Misunderstanding is usually aggravated by the fact that one person/party underestimates or is ignorant of the range of value systems or misinterpret the norms that exist in different languages, cultures, and social environments.

Again, language also plays a crucial role in causing and resolving conflict. Language is one of the communication means. The best language is the indigenous language. Conflicts are inevitably present in many interpersonal relationships, and their destructive/constructive character depends on the way they are handled.

Language can cause or mitigate conflict because of its ‘positive and negative powers’. When people are sensitive about their language, language tends to be a positive tool in life. People tend to tolerate, listen, understand, and co-operative with those who have similar values and belief systems. Since no society functions without culture, and culture is symbiotic with language. This is the inherent power of language plays a significant role in conflict management and peacebuilding. Because language is part and parcel of culture, and culture in itself is a means by which people communicate, perpetuate, and develop their knowledge and attitudes towards life. Language must have a place in the management of conflicts and peace-building elsewhere.

The century-old indigenous conflict resolution mechanisms focus on the principles of empathy, sharing, and cooperation in dealing with common problems which underline the essence of humanity. Cultural approaches to resolving and managing disputes play a vital role in promoting peace and social order in communities. Language, cultural values, and attitudes provide the basis for interaction and the norms by which individuals and communities on the planet.

Communication is instrumental in peace-building. Peacebuilding is defined as the process intended to address the root causes of conflict, reconcile differences, normalize relations, and build institutions that can manage conflicts without resorting to violence. Peacebuilding involves putting structures in place for removing the roots of conflict.

The Communication for Peacebuilding work has its roots in the philosophy and practice of Communication for Development. In the arena of conflict transformation and peacebuilding, communications have historically played a role in shaping the views of policy-makers and influencing popular opinion on conflicts. Communication is an irreducible element of peacebuilding. Communication is central to many aspects of work in conflict and post-conflict settings.

There are four ways to conceptualize how communication has been applied to peace-building in case of conflict in a society, group, or community. First, one might look at the channels of communication flows between the following entities- (a) between individuals in conflict; (b) within a group where conflict exists; (c) within groups or communities in conflict; (d) between communities and organizations such as multilateral, government, and NGO’s where cooperation and coordination are issues.

Peace has a certain quality. It has to go beyond the absence of violence and include also the development of social justice and political equality. This includes harmonious relationships between the different individuals and groups in society and the availability of mechanisms through which grievances and discord can be managed in non-violent ways. This kind of peace is often called ‘positive’ peace having certain conditions of complete peace linked with the notion of justice assessed by the moral quality of the outcome of justice. Peacebuilding can be pre-conflict or post-conflict. The former tries to prevent a conflict from breaking out and the latter one is the resolution of conflict.

In the era of globalization, a new concept of development emerged emphasizing cultural identity and multidimensionality. Generally, conflict resolution is a community process involving the identification of the root cause of the problem and bringing all parties involved to address the underlying issues. The growing interdependency of nations and global issues such as economic and financial crises, ecological and security crises gave rise to a new perspective on development and social change. The theory and practice of communication for development is an evolving field, with different approaches and perspectives unique to the varied development contexts. This participatory model also stressed the importance of the cultural identity of local communities and of democratization and participation at all levels.

Development, peace-building, reconciliation, and conflict resolution are complex terms that have no common definition and are often centered on developing more intangible outcomes such as changes in relationships and attitudes that do not lend themselves readily to quantification. In addition, evaluation is further complicated by the following factors that the outcomes from Peace-Building are essentially long-term, which makes short-term monitoring and evaluation difficult. It is difficult to isolate the impact of specific Peace-Building interventions from the complex political, economic, and social contexts in which they are located.

The UN 1992 report ‘An Agenda for Peace, defined peacebuilding as action to solidify peace and avoid a relapse into conflict. The UN Secretary-General’s Policy Committee has described peacebuilding as follows: “Peacebuilding involves a range of measures targeted to reduce the risk of lapsing or relapsing into conflict by strengthening national capacities at all levels for conflict management, and to lay the foundations for sustainable peace and development. Peacebuilding strategies must be coherent and tailored to the specific needs of the country concerned, based on national ownership, and should comprise a carefully prioritized, sequenced, and therefore a relatively narrow set of activities aimed at achieving the above objectives.” In 2000, another report defined it as “activities undertaken on the far side of the conflict to reassemble the foundations of peace and provide the tools for building on those foundations something that is more than just the absence of war”.

SUMMARY

Conflict use to leave a deep-rooted sense of distrust and fear that must be addressed if there is to be a just and lasting peace. Reconciliation is broadly considered as a process centrally needed in societies emerging from violent conflicts. Reconciliation processes in post-conflict societies are often highly complex. It is believed that no intractable conflict can really end without some kind of reconciliation process if the parties to the conflict are going to interact again in the future. Therefore, a meaningful process of reconciliation must therefore be rooted in local social and cultural contexts.

CONCLUSION

UN is observing ‘The International Year of Indigenous Languages’ in 2019 that aims to raise awareness of the consequences of the endangerment of Indigenous languages across the world. UN has declared 21st February as International Mother Language Day as per the request of Bangladesh to show respect to the historic language movement of East Pakistan (now Bangladesh). The theme of International Mother Language Day 2019 is “Indigenous languages matter for development, peacebuilding, and reconciliation”. It has been taken with an aim to establish a link between language, development, peace, and reconciliation. It aims to improve quality of life, wider international cooperation, and visibility and strengthened intercultural dialogue to reaffirm the continuity of indigenous languages and cultures.

POTENTIAL SOLUTION *

The article’s central insight has a practical edge that is easily missed: if language carries culture, then a peace process conducted in a language that is not the parties’ own is already conducting itself on unequal terms. The party that must argue in a second language argues at a disadvantage, expresses grief and grievance imprecisely, and may experience the process itself as a continuation of the marginalisation that caused the conflict. Making language a design question rather than a logistical afterthought is therefore a concrete contribution to fairness.

First, treat language choice as part of process design. At the outset, parties should be asked in which language they wish to speak, and that choice should be honoured even where it complicates the arrangements. Where interpretation is needed, interpreters should be trained in mediation confidentiality and in the difference between literal and meaning based rendering, since a mediator who does not understand what is being translated is dependent on the interpreter’s judgment at precisely the most delicate moments. Wherever possible, mediators fluent in the community’s own language should be trained and deployed, which is more sustainable than importing outsiders.

Second, build on existing local mechanisms rather than replacing them. The empathy, sharing and cooperation that the author locates in century old indigenous practices are not folklore but functioning technology. Documenting these mechanisms with the communities that hold them, and connecting them to formal justice systems through recognition and referral arrangements, preserves what works while providing a route to state protection where rights are at stake.

Third, work directly on the negative side of language. Where proverbs, songs and stories carry hostile images of a neighbouring community, joint cultural projects can address them without censorship: shared story collections, bilingual school materials, mixed community festivals and cooperative media production. Naming an inherited insult openly, together, drains far more of its power than prohibiting it.

Fourth, protect endangered languages as a peacebuilding measure. Language loss is experienced as a loss of identity, and identity threats fuel conflict. Mother tongue education in the early school years, official recognition of minority languages in local administration and courts, and support for community media in those languages address a grievance before it becomes a dispute.

Fifth, evaluate with the parties. Since peacebuilding outcomes resist quantification, communities themselves should define what improvement means, in their own words, at the start, and assess it periodically. This is both better measurement and, in itself, an exercise of the participation the article commends.

* Added by the WMO Editorial Team

REFERENCES *

1. United Nations (1992). An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace keeping. Report of the Secretary General, A/47/277, New York.
2. United Nations (2000). Report of the Panel on United Nations Peace Operations (Brahimi Report), A/55/305, New York.
3. United Nations Secretary General’s Policy Committee (2007). Conceptual basis for peacebuilding for the UN system, New York.
4. UNESCO (2019). International Year of Indigenous Languages, Paris, and International Mother Language Day 2019, theme: Indigenous languages matter for development, peacebuilding and reconciliation.
5. United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), General Assembly Resolution 61/295, 13 September 2007, Articles 13 and 14 on languages and education.
6. Galtung, J. (1969). Violence, Peace, and Peace Research. Journal of Peace Research, 6(3), 167 to 191 (concept of positive peace).
7. Lederach, J. P. (1995). Preparing for Peace: Conflict Transformation Across Cultures. Syracuse University Press, Syracuse.
8. Lederach, J. P. (1997). Building Peace: Sustainable Reconciliation in Divided Societies. United States Institute of Peace Press, Washington, D.C.
9. Avruch, K. (1998). Culture and Conflict Resolution. United States Institute of Peace Press, Washington, D.C.
10. Servaes, J. (Ed.) (2008). Communication for Development and Social Change. SAGE Publications, New Delhi (Communication for Development framework).
11. Hoffman, J., & Shalom, S. (2011). Communication for Peacebuilding: Practices, Trends and Challenges. United States Institute of Peace, Washington, D.C.
12. Bloomfield, D., Barnes, T., & Huyse, L. (Eds.) (2003). Reconciliation After Violent Conflict: A Handbook. International IDEA, Stockholm.

The role of the mediator

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article examines the tension between the mediator’s obligation of impartiality and the active, influential role the mediator must play for mediation to succeed. Beginning from the voluntary and non binding character of mediation and the mediator’s functions of framing cooperative decision making, promoting communication, offering evaluation, empowering the parties and safeguarding fairness, the author reviews the codified understanding of impartiality, including the definition in the Canadian Bar Association’s Model Code of Conduct, and the duty to disclose and withdraw where impartiality can no longer be maintained. The paper then analyses the concrete instruments through which mediators exercise influence: agenda setting and process control, reframing of the parties’ accounts, caucusing and the shuttling of information between separate sessions, evaluation of likely court outcomes on request, and direct or indirect pressure toward settlement, including the threat of withdrawal. Distinguishing facilitative, evaluative and rights based approaches, the author notes that mediators may shift orientation mid process. The article concludes that model codes are framed too generally to guide concrete choices, that mediators must therefore exercise ethical judgment constantly and often unconsciously, and that their conduct is ultimately governed by four cardinal principles: do no harm, do good, respect self determination, and ensure fairness and justice.

KEYWORDS *

Mediation, impartiality, neutrality, mediator power, reframing, caucus, agenda control, self determination, ethical principles, codes of conduct, facilitative mediation, evaluative mediation, rights based mediation

INTRODUCTION

Mediation is one of Alternative Dispute Resolution (ADR). It is voluntary and non-binding on the parties in dispute. The mediator targets to take an active role in order to facilitate a settlement that includes all participants’ necessities. From what I learned, there are three elements that play a significant role in peoples’ acceptance towards mediation, namely: dignity and trust.

The mediator carries out a number of different functions during the process, for example: establishing a framework for cooperative decision making, promoting constructive communication, providing appropriate evaluations, empowering the parties, and ensuring a minimum level of process and outcome fairness (Boulle and Kelly, 1998).

Based on the above-mentioned characteristics, you may see that mediation is supposed to be of a specific creative and flexible nature, allowing confidentiality, direct participation, and control by the parties, thereby enhancing the parties’ self-determination. Throughout this process, the mediator takes on the role of a neutral third party, facilitating communication and assisting the parties to work out a mutually acceptable resolution.

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One of the fundamental assumptions on which the practice of mediation is building the impartiality of the third-party intervener. The mediator is not supposed to favor, support, or demonstrate a preference for the position of one party over another. Impartiality and neutrality are considered the “critical defining characteristics” of an independent mediator (Macfarlane, 2003). The Canadian Bar Association’s Model Code of Conduct for Mediators defines impartial as “being and being seen as unbiased toward parties to a dispute, toward their interests and toward the options they present for settlement”. The mediator is expected to take on an impartial role and facilitate dispute resolution between the parties, in order to help them reach “a voluntary, mutually acceptable resolution of some or all of the issues of their dispute”.

Due to this description, the mediator has a very sensitive and difficult job. S/he should respect and encourage self-determination of the parties and preserve their objectivity and impartiality, while at the same time carry out their own role effectively. The key is for the mediator to move the parties through the mediation process in a way that is responsive to the parties’ needs and interests, as opposed to the self-interest of the mediator. If the mediator becomes aware that s/he cannot maintain impartiality then s/he must immediately disclose this to the parties and withdraw from the mediation.

The pragmatics of communication is used as a major tool to change polarity, and therefore participant perceptions”. The contextual reality accompanying a phrase or a sentence plays a key role by coming to a mutually acceptable conclusion. Where the mediator deems it necessary, she may use the “most direct and coercive means of influencing parties,” that is, threatening to withdraw from negotiations or actually doing so, in order to pressure parties toward settlement (Macfarlane, 1997).

Due to the mediator’s reflections during the session, s/he tries to set an agenda and follow a road map on how to proceed. The process decisions do have an impact on how the content of mediation emerges and is discussed. The mediator may encourage the discussion of certain topics in order to build a common ground or to keep certain topics off the table if she anticipates a clash of views and positions. This management of the agenda and control of the process is an additional element of the mediator’s power.

In mediation, parties begin by providing their own account or frame of the dispute. The mediator then uses the technique of reframing to “alter the language used to describe the dispute” (Smith, 1998) as well as the “perceptions, and current frames of the behavior, attitudes or issues in the dispute” (Candlin and Maley, 1994).

Mediators use a variety of techniques to impose direct and indirect pressure on the parties to settle. To bring the parties to settle the dispute, the mediator has to get them to accept that a settlement is a better option than litigation, in which the parties incur significant costs in time and expenses. To achieve this goal, the mediator has the power to direct the parties by “focusing discussion, procedurally and substantively, toward a settlement” (Silbey and Sally, 2001).

There are three categories of mediation approaches on the basis of role-playing by the mediator. (1) facilitative or ‘interest-based’ mediation, where the mediator does not direct the parties towards any particular settlement; (2) evaluative mediation, here the mediator makes suggestions as to the likely outcome of the dispute; and (3) rights-based mediation, here the mediator ensures that any mediated agreement reflects statutory rights and legal entitlements.

The mediator may determine the method of what might better match with the framework set up by the participants. Again, the mediator may start with leading the process in one direction and recognizing that another approach is more suitable, making the necessary shift in orientation through reframing the approach. Through reframing, the mediator tries to furnish an “alternative social account of the conflict,” helping parties to reinterpret their circumstances, their counterpart’s motivations, and the range of possible solutions (Gary, 2006). S/he may highlight the common elements of the discourse between the parties, attempting to create “a single perception of the dispute from a shared point of view” (Smith, 1998) in order to create an opportunity for constructive discussion. The mediator changes the storyline and shifts the entire conflict paradigm through reframing, altering how the parties view themselves and making sense of the conflict.

Mediators also make use of caucusing to engage in direct and more open communication with the parties. Here, each party can reveal information to the mediator, which has to be kept confidential and not revealed to the other party. She shuttles between caucuses, taking the knowledge gained from each party and reformulating it into his own suggestions, in order to blur the origin of the discourse. As such, caucusing gives the mediator significant power to alter the parties’ perceptions and transmit his

Basically, mediators don’t provide legal advice, but when asked by the parties, s/he can give an evaluation on how the matter is likely to turn at the court, emphasizing the relative strengths and weaknesses of both sides’ cases.

There is a significant tension between maintaining impartiality and taking an active role as a mediator. Mediator involved in a host of activities requiring evaluation of facts and circumstances, the judgment of legal and practice in the society, and decision making. S/he uses to exercise power and its various dimensions on the basis of knowledge and expertise to design and control the process, reframing, and imposing pressure to settle. But a mediator in a quite influential position and his/her exercise of power can have a significant impact on shaping the parties’ conduct, the process of mediation, and the final outcome reached by the disputants.

The professional codex of the mediator should lead him/her to be ethical in thought and making choices, based on a principle or value considered to be morally superior to the other (Macfarlane, 2002). It requires balancing alternative courses of action in the mediation process and deciding how far each advances the goals and underlying values of mediation. Mediator has the discretion to make this determination and to decide what is fair and reasonable. There are model codes of conduct that are supposed to guide the mediators’ choices, but these models are often framed in general terms and do not offer specific examples or concretely demonstrate where the line should be drawn and how the mediator should apply the general rules and principles provided therein in a specific context.

It may be argued that mediation is supposed to be flexible and creative; hence mediators should be given wide discretion to achieve the goals of mediation. However, the dilemma is that by leaving it up to the mediators to exercise their discretion, they have to exercise their ethical judgment “constantly, intuitively, and often unconsciously” (Macfarlane, 2002). They have to decide what is fair and reasonable, when they should intervene, how far they should intervene, how they should exercise the various dimensions of their power (or refrain from exercising it), and so on.

SUMMARY

A mediator usually is an elder person who gathered more experiences in life, who is able to speak wise and make suggestions with a certain amount of authority. The more informed the mediator is about the particular dispute and the legal process, the greater power she has to attain credibility and get the parties to accept her evaluation of the case. The key is for the mediator to move the parties through the mediation process in a way that is responsive to their needs and interests, as opposed to the self-interest of the mediator.

CONCLUSION

Finally, the mediator has four cardinal ethical principles of most professions: “do no harm, do good, let the client be self-determining and ensure fairness and justice”. The mediator should not press any kind of undue unethical influence violating the four ethical principles is an amount to coercion, violating the four cardinal ethical principles.

Any assertiveness produces agreement but less satisfaction, but it turned out that many mediators were assertive and got agreements without upsetting or irking the disputants. She may be a successful Mediator.

POTENTIAL SOLUTION *

The dilemma the author names is real: model codes state principles, but the decisive judgments arise second by second in the room, where no code reaches. Closing that gap does not require abolishing discretion; it requires giving discretion structure, so that intuitive choices become examined ones.

First, translate the four cardinal principles into decision rules for the recurring moments. General norms guide nothing until they are attached to concrete situations. A practice standard can specify, for example, that reframing must preserve the substance and gravity of what a party said and be checked back with that party before it is carried forward; that information from caucus is transmitted only with the express consent of its source, since blurring the origin of an idea is legitimate only when the source has agreed; that evaluation is offered only on request, given to both sides in comparable terms and framed as a range; and that the threat of withdrawal is used only where continuation would be improper, never as leverage toward settlement. Each rule turns an abstract duty into an observable behaviour.

Second, disclose the method and let the parties choose it. Since the mediator may shift between facilitative, evaluative and rights based orientations, the parties should know which mode is being used and consent to any change. A mediator who announces a shift, from exploring interests to testing legal realities, restores to the parties the control that silent reorientation quietly removes.

Third, distinguish assertiveness from pressure by its direction. The article’s closing observation is important: assertive mediators can secure agreements without alienating anyone. The line lies in what the energy serves. Assertiveness applied to the process, keeping momentum, insisting on respectful exchange, refusing to let a party be shouted down, strengthens self determination. Assertiveness applied to the outcome, pushing a particular deal, invoking costs to induce capitulation, replaces it. A simple internal test serves well: would I still make this intervention if the party then decided the opposite of what I expect?

Fourth, build the reflective infrastructure the codes cannot supply. Case supervision, peer review, co mediation in high stakes matters and post session self questioning about whose account dominated and where pressure was applied, convert Macfarlane’s unconscious ethical judgment into deliberate practice. Professional bodies can support this by publishing anonymised case studies that show precisely where experienced practitioners drew the line and why, so the next generation inherits worked examples rather than only maxims.

Handled this way, the tension between impartiality and active engagement stops being a contradiction and becomes a discipline: the mediator is fully present, fully skilled, and fully accountable to the parties whose conflict, and whose decision, it remains.

* Added by the WMO Editorial Team

REFERENCES *

1. Boulle, L., & Kelly, K. J. (1998). Mediation: Principles, Process, Practice. Butterworths, Toronto.
2. Canadian Bar Association, Model Code of Conduct for Mediators, Ottawa.
3. Macfarlane, J. (1997). Court Based Mediation of Civil Cases: An Evaluation of the Ontario Court (General Division) ADR Centre. Queen’s Printer, Toronto.
4. Macfarlane, J. (2002). Mediating Ethically: The Limits of Codes of Conduct and the Potential of a Reflective Practice Model. Osgoode Hall Law Journal, 40(1), 49 to 87.
5. Macfarlane, J. (Ed.) (2003). Dispute Resolution: Readings and Case Studies (2nd edition). Emond Montgomery, Toronto.
6. Candlin, C. N., & Maley, Y. (1994). Framing the Dispute. International Journal for the Semiotics of Law, 7(1), 75 to 98.
7. Silbey, S. S., & Merry, S. E. (1986). Mediator Settlement Strategies. Law and Policy, 8(1), 7 to 32.
8. Cobb, S., & Rifkin, J. (1991). Practice and Paradox: Deconstructing Neutrality in Mediation. Law and Social Inquiry, 16(1), 35 to 62.
9. Riskin, L. L. (1996). Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed. Harvard Negotiation Law Review, 1, 7 to 51.
10. Model Standards of Conduct for Mediators (2005), American Arbitration Association, American Bar Association and Association for Conflict Resolution.
11. European Code of Conduct for Mediators (2004), European Commission, Brussels.
12. Beauchamp, T. L., & Childress, J. F. (2019). Principles of Biomedical Ethics (8th edition). Oxford University Press, New York (source of the four cardinal principles referenced in the article).

Power based resolution in Mediation

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article sets out the three fundamental orientations available for resolving disputes, interests, rights and power, and examines how they interact in practice. The author first classifies dispute processing as consensual (negotiation, facilitation, mediation), adjudicative (arbitration and court adjudication) or legislative, and adds coercion or force as a further option. Interest based approaches are presented as addressing the fears, concerns, needs, hopes and expectations of the parties, and as fostering cooperation rather than competition; rights based approaches as invoking independent standards of fairness such as reciprocity, precedent, equality and seniority, appropriate in particular where one party has been systematically oppressed or refuses to acknowledge an injury; and power based approaches as resolution according to the resources each side is willing to deploy, occasionally appropriate in emergencies but rarely conducive to lasting peace. The paper then applies these categories to mediation itself, discussing power based mediation in international conflict, the mediator roles of communicator, formulator and manipulator, the sources of mediator leverage, and three scholarly conceptions of mediator power. The author recommends a hierarchy of approaches, interests first, then rights, and power only as a last resort, describes the effective dispute resolution system as a pyramid, and criticises international mediation for relying too heavily on power based diplomacy instead of confidence building.

KEYWORDS *

Interests, rights, power, dispute resolution, mediation, negotiation, adjudication, reframing, mediator leverage, power based diplomacy, confidence building, human needs

INTRODUCTION

There are, of course, many responses to conflict. Two common alternatives to the processes outlined in this note are avoidance, a refusal to acknowledge or engage in the problem; and unilateral decision-making, in which one of the disputants’ requests (or allows) a third party to independently decide on an outcome to the dispute without a formal process.

In practice, parties in conflict will frequently draw from components of all three procedures— some discussion of interests, some reliance on rights, and some attempts to use power. The ways people process or resolve disputes or attempt to make decisions are, consensual, adjudicative, or legislative in nature. Consensual dispute resolution means that the disputants themselves decide the process and the outcome. Consensual dispute resolution processes include Negotiation, Facilitation, and Mediation. An Adjudicative dispute resolution means that a third party makes a binding decision for the parties. Adjudicative approaches include arbitration and court adjudication.

Legislative approaches to dispute resolution focus on rule-making by a group, organization, formal legislative body, or ruler. Disputes over the interpretation or application of rules may be resolved through consensual or adjudicative means. The other option is resolution through coercion or force. This is an application of power.

MAIN CORPUS

Definitions of power include the ability to do, act, or produce; the ability to control others; authority; sway; influence; a person or thing having great influence, force, or authority; and the ability to regulate, restrain, or curb. Power is the ability to have one’s way against the wishes of another. Consequently, resolving conflicts by the imposition of will seldom leads to peace. However, there are many situations when resolving a conflict by power is appropriate. For example, a patient in a hospital emergency with a cardiac arrest or in other emergency situations a clear command or forced action is more likely to assure safety and security.

Interests, rights, and power are ways of looking at and resolving conflict. When conflicts are defined in terms of interests rather than power or rights, people tend to cooperate rather than compete. Satisfying an interest is emotionally easier to accept than compelling action through power or seeking third-party assistance, such as litigation or arbitration. Interest-based options focus on meeting the interests of the stakeholders in a particular dispute. Interests consist of fears, concerns, needs, hopes, and expectations.

The “right-based” option seeks to create or enforce a right for one or both sides of the dispute. Rights enforcement is commonly conducted through the judicial system, but other systems, such as arbitration or grievance procedures may also be utilized. Rights-based options are to hear and enforce the “rights” of disputants. The option may address both legal and non-legal rights. They determine whether a right has been violated and what the remedy for that violation should be.

Interest or human needs are the physical and non-physical elements needed for human survival, growth, and development. These needs include individual and collective security, identity, recognition, belongingness, personal fulfillment, and the capacity for self-determination.

Whenever possible, seek interest-based resolutions, then rights enforcement, and finally, if all else fails, use a power-based process. Rights enforcement is the ability to have a third party decides that one may act against the wishes of another. If the conflict becomes long-lasting or emotional, disputants may choose aggressive behaviors that range from exchanging insults to sabotage, even escalating to open warfare. A conflict resolution method that focuses primarily on power is called a “power-based” procedure because it involves the resolution of the dispute based on the resources each side has available and has the capacity and willingness to use.

Rights are independent standards of fairness or legitimacy that are either socially recognized or formally established in law or contract. Such standards include reciprocity, precedent, equality, and seniority. Power is often defined as the “…ability to achieve outcomes one desires—get things done in the way you want them to be done.”

Rights enforcement is appropriate when one party of a conflict has systematically oppressed another party. Rights enforcement is also appropriate when one party refuses to acknowledge an injustice or injury. However, rights enforcement may lead to more conflict when it is the conflict resolution method of choice. The “power” often does not require justification for fairness – as it might for certain rights or interest-based options. Power-based mediation is an exercise in which the mediator has interests and operates in the context of power politics and cost‐benefit calculation.

It was found that a mediator intervenes in many global conflicts because of its interest in the conflict or in obtaining an outcome, and it can play three roles‐communicator, formulator, manipulator‐ in accomplishing its objectives. The mediator is accepted by the parties, not because of its neutrality but because of its ability to produce an attractive outcome. The mediator’s power, or leverage, comes from the parties’ need for a solution, from its ability to shift weight among parties, and from side payments. In addition, there are power-based negotiations, which involve an exchange of threats, and power contests.

There are three different views with respect to mediators’ own conceptions of power. The first group viewed power as the ability to impose one’s will on another through the use of subject expertise; the second group adopted this definition but also indicated that the idea of power encompasses the ability to manage the issue agenda; and the third approach to power encapsulated the two preceding frameworks but added that the idea of power also includes the capacity to shape interests and preferences (Hanycz, 2005).

A Mediator intervenes because of its interest in the conflict or in obtaining an outcome, and it can play three roles-communicator, formulator, manipulator- in accomplishing its objectives. Power is understood as the ability to coerce someone into doing something he would not otherwise do. It may be imposed option as one party may impose his decision on another party. Exercising power is typically a matter of imposing costs on the other side or threatening to do so, whether through acts of aggression or withholding the benefits that derive from a relationship. Either party may believe that it has the power to coerce or compel the other party to concede.

So, what may be the likely outcomes of these different approaches that you should be aware of before you begin to formulate a strategy of your own? Focusing only on who is right—as in litigation and arbitration—or on who is more powerful—as in sabotage or unilateral decision-making—risks leaving at least one party perceiving herself as the loser.

SUMMARY

The mediator observes that two parties are in a power struggle against one another to dominate each other and also find the injustices each has suffered and the interests each wishes satisfied. Moderator can pursue the parties can work cooperatively to satisfy all of the interests between them. By reframing the conflict as interest-based rather than power-based, you can move the parties from competitive hostility to cooperative teamwork.

Mediation is a process of dialogue and negotiation in which a third party assists two or more disputant parties, with their consent, to prevent, manage or resolve a conflict without resort to force. An effective dispute resolution system may look like a pyramid: most disputes are resolved through reconciling interests, some through determining who is right, and the fewest through determining who is more powerful.

CONCLUSION

International mediation in national conflicts relies too much on power-based diplomacy, attempting to make progress by exerting pressure on the disputant parties through declarations, admonitions, threats, and punishment. Power-based diplomacy tries to bully the parties into a settlement, rather than confidence-building mediation seeks to build their confidence in each other and come to a resolution with a win-win situation.

POTENTIAL SOLUTION *

The article ends with a diagnosis that deserves to be turned into a method: pressure produces signatures, confidence produces peace. The practical question is how a mediator, whether in a boardroom or between states, moves a conflict down the pyramid from power to rights to interests when the parties themselves arrived committed to power.

First, use rights as a bridge rather than a destination. Parties locked in a contest of strength rarely move directly to a conversation about needs. An intermediate step works better: establishing what each side is objectively entitled to under law, contract, custom or international norm. This introduces a standard neither side controls, deflates inflated expectations on both sides, and creates the shared factual ground on which interest based bargaining becomes possible. Rights here function as a floor that protects the weaker party, not as the final verdict.

Second, make the alternatives explicit. The single most effective reframing tool is a rigorous joint examination of what happens if no agreement is reached: the cost, duration and uncertainty of litigation, the price of continued confrontation, the damage to relationships and reputations. Parties who overestimate their power usually do so because no one has priced it. When the cost of winning is visible, interests become interesting.

Third, address the power imbalance rather than ignoring it. Where one side is genuinely stronger, interest based process alone can dress domination in cooperative language. Practical correctives exist: ensuring the weaker party has independent advice, information and adequate preparation time, sequencing sessions so that neither side can impose deadlines, allowing support persons or representation, and terminating the process where free negotiation is impossible. Interest based mediation is legitimate only among parties who could each walk away.

Fourth, apply the same logic at the international level. The article’s criticism of power based diplomacy points toward its remedy: incentives and guarantees rather than threats, sustained low profile facilitation between rounds rather than summit pressure, inclusion of civil society and affected populations so that agreements have owners beyond the signatories, and above all patience, since confidence, unlike compliance, cannot be imposed on a schedule.

Handled this way, the hierarchy the author recommends becomes operational. Power secures the room, rights define its boundaries, and interests fill it with solutions the parties will still honour when the pressure that produced the meeting has long since lifted.

* Added by the WMO Editorial Team

REFERENCES *

1. Ury, W. L., Brett, J. M., & Goldberg, S. B. (1988). Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict. Jossey Bass, San Francisco (interests, rights and power framework and the pyramid model).
2. Fisher, R., Ury, W., & Patton, B. (2011). Getting to Yes: Negotiating Agreement Without Giving In (3rd edition). Penguin Books, New York.
3. Touval, S., & Zartman, I. W. (Eds.) (1985). International Mediation in Theory and Practice. Westview Press, Boulder (mediator as communicator, formulator and manipulator).
4. Zartman, I. W. (2008). Negotiation and Conflict Management: Essays on Theory and Practice. Routledge, London.
5. Hanycz, C. A. (2005). Through the Looking Glass: Mediator Conceptions of Philosophy, Process and Power. Alberta Law Review, 42(3), 819 to 855.
6. Burton, J. W. (1990). Conflict: Human Needs Theory. Macmillan, London.
7. Moore, C. W. (2014). The Mediation Process: Practical Strategies for Resolving Conflict (4th edition). Jossey Bass, San Francisco.
8. United Nations (2012). Guidance for Effective Mediation, annexed to the Report of the Secretary General on strengthening the role of mediation, A/66/811, New York.
9. Bercovitch, J. (Ed.) (1996). Resolving International Conflicts: The Theory and Practice of Mediation. Lynne Rienner, Boulder.
10. Lederach, J. P. (1997). Building Peace: Sustainable Reconciliation in Divided Societies. United States Institute of Peace Press, Washington, D.C.

Neutrality, Power and Influence of Mediators

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article examines the power exercised by mediators and its uneasy relationship with the professional ideal of impartiality. The author argues that while impartiality is defined in professional codes as remaining equally committed to the legitimate interests of all parties and as being and appearing unbiased, in practice mediators inevitably assess and evaluate what they hear, and these judgments shape their interventions, suggestions and strategies. Drawing on the image of the mediator as writer, director and central character in the play, the paper identifies the principal domains in which mediator power operates: knowledge and expertise, design and control of the process, reframing of the parties’ statements, and pressure toward settlement through communication techniques, caucusing, reality checking and the threat of withdrawal. The author contrasts settlement oriented and communication oriented mediator styles, notes research suggesting that mediators regularly influence outcomes in directions congenial to their own ideas, and compares mediation unfavourably with adjudication in terms of procedural safeguards, since informality, intimacy and the absence of a public record leave more room for undetected bias. The paper concludes that mediator power cannot be eliminated without reducing mediation to plain negotiation, and calls instead for heightened awareness, shared best practice and closer examination of fairness and legitimacy, particularly in mandatory mediation.

KEYWORDS *

Mediator power, impartiality, neutrality, bias, reframing, caucus, reality checking, process control, mandatory mediation, mediator ethics, legitimacy, fairness

INTRODUCTION

The mediators are a central figure in the mediation process. Although the mediator is theoretically held out to be impartial, in practice, this is very difficult to sustain. The term impartial has been summed up as “the quality of being principled enough to remain equally committed to the legitimate interests of all parties”. The mediator listens to all the parties and consciously or subconsciously begins to assess, judge, and evaluate the information. This automatic thought process also shapes and affects the mediator’s reactions, suggestions, proposals, and strategies, which in turn influences the outcome of the mediation and potentially favors one party over another. Thus, it has been argued that mediators influence both process and outcome by affecting the legitimacy of each party’s point of view through their interventions, determination of the order of speaking, caucusing, and reframing of parties’ statements.

MAIN CORPUS

Mediators have tremendous influence over the process of mediation. Prof Gary Smith frames mediators as playing the role of the “writer, director, and one of the central characters in the play,” employing “various moves or techniques to promote the success of the mediation”. To achieve their goals, mediators have to exercise a measure of control, authority, and influence through in enforcing the ground rules, directing the agenda, shaping preferences, and reality checking. They are knowingly or unwittingly exercise a significant amount of power and influence the decisions of the parties as well as the mediation outcome. This power comes to light in the various functions and roles that the mediator takes on throughout the mediation.

The exercise of mediation power in the areas of power as knowledge and expertise, power as design and control of the process, power as reframing, and power as pressuring to settle through various communication techniques, caucusing, reality checking, and threatening to withdraw, is a special case. The knowledge and skill of the mediator also engender a certain amount of respect, as the parties may come to view the mediator as someone they can trust to help them solve their dispute. The more informed the mediator is about the particular dispute and the legal process, the greater power she has to attain credibility and get the parties to accept her evaluation of the case.

Mediation is “altering perceptions” by breaking down the impossible into smaller pieces, rendering them more attractive, and “gradually re-polarizing and merging the inner portions of the model with those surrounding them,” in order to bring about a resolution to the dispute. To achieve success, it is unlikely that mediators can hold themselves completely separate from the dispute resolution process, in an attempt not to access and employ their power. The Canadian Bar Association’s Model Code of Conduct for Mediators defines impartial as “being and being seen as unbiased toward parties to a dispute, toward their interests and toward the options they present for settlement”.

In the neutral and non-bias process, mediators struggle to keep their prejudices and their interest out of the process and are prohibited from judging the substance of the agreement; but in order to bring the hidden interests of the parties to the surface, mediators must attend to the content of the agreement, so that all interests are represented.

Some mediators focus on reaching a settlement, displaying a tendency to be more proactive and offer their own suggestions. Other mediators focus on enhancing communication and fostering constructive dialogue, placing more emphasis on encouraging the parties to bring forth their needs, concerns, and interests.

In fact, social anthropology research also found that “mediators regularly exercise influence, either passively or actively, and that such influence serves to assist in an outcome palatable to the mediators, corresponding to own ideas and interests”. The mediators bring to bear his or her experience, expertise, and knowledge of the process, working with the parties to reconcile their interests and arrive at a resolution that is agreeable to them.

Mediators need to develop a keen awareness of their power, share their experiences, and generate best practices as to how the exercise of mediator power should be tailored to serve the essential objectives of the mediation process as well as the interests of the parties. In fact, Mediators exercise significant power in the mediation process, the limits of that power and how it ought to be controlled to prevent abuse and ensure legitimacy and fairness cannot be properly examined.

In course of carrying out their role and various functions, the practice of mediation requires the mediators to employ particular techniques and strategies and in the process inevitably exercise a significant amount of authority and power. The degree of influence of mediators, the goals set out to be achieved through the mediation process, and ultimately the power they can exercise will vary with the orientation of the mediator as well as the model or approach that they employ.

Nonetheless, it is important to keep in mind throughout this discussion that the degree of influence, and ultimately the power that a mediator can exercise, is likely to vary with the type and orientation of the mediator, as well as the model or approach that he or she employs.

In practice, there is little objective evidence on which to assess the alleged partiality of mediators or to demonstrate that the mediation process is immune from the inevitable failures of impartiality. In fact, even in the case of judges, impartiality is likely an aspiration and not reality. In the context of judging, though, the formal and public setting, judicial forms of distancing, and the existence of rules of procedure to check overt signs of prejudice afford some protection against bias. In contrast, in the context of mediation, thanks to the intimate relationship of the mediator with the parties, the informality and flexibility of the process, and the lack of a formal public record, there is a great potential that bias will influence the outcome (Grillo, 2001).

One scholar observed that “As a field, both scholars and practitioners have linked the “magic” of mediation to the impartial and neutral third parties who act as mere process facilitators, avoiding the crossover into advocacy, substantive analysis or the creation or promotion of specific solutions.

SUMMARY

There may be discussion whether some of the contradictions and tensions are emerging in the practice of mediation need to be more closely examined and addressed, particularly in the context of mandatory mediation, in the interest of protecting the fundamental rights of the parties and ensuring that a minimum level of integrity, fairness, and legitimacy is sustained in the process.

No method on this earth is perfect. Mediators can develop and improve our qualities and skills with practice. Mediators may look at the realities of the mediation practice and exchange ideas with parties in mediation to determine whether mediation needs to change, or stay the same; whether mediators should continue to exercise their power and be trusted to make the right ethical choices in different contexts.

CONCLUSION

The mediator brings to bear his or her experience, expertise, and knowledge of the process, working with the parties to reconcile their interests and arrive at a resolution that is agreeable to them. If the mediator truly succeeds in not exercising any power, then the process is not all that much different from straight negotiation, with an additional person present but not adding or contributing anything more to the outcome of the mediation. They need to become more conscious of the important role they play and the delicate balancing of interests involved in the mediation process.

POTENTIAL SOLUTION *

The article poses a genuine dilemma rather than a defect: mediator power is not an unfortunate side effect of mediation but the very thing the parties are paying for. A mediator who exercises no influence adds nothing; a mediator who exercises it invisibly threatens the self determination on which the process rests. The resolution lies not in denying power but in making it visible, bounded and accountable.

First, replace the myth of neutrality with declared transparency of method. At the outset the mediator can name what they will do and why: that they will manage the agenda, decide the sequence of speaking, hold private sessions, reframe what is said and, if asked, test the realism of positions. Parties who know the moves can question them. A single sentence added to the opening, that any party may object at any time to how the process is being run, converts silent authority into a supervised mandate.

Second, distinguish process power from outcome power, and use only the first freely. Deciding who speaks when, when to caucus and when to break is legitimate craft. Steering toward a particular settlement is not. Practical markers keep the line visible: options are recorded as the parties’ proposals rather than the mediator’s, reality testing is applied symmetrically to both sides in comparable terms, and any evaluative comment is offered only on request and framed as a range rather than a verdict.

Third, treat pressure to settle as the central ethical risk. Settlement rates are a seductive but corrupting measure of mediator success, particularly where mediation is mandatory and parties feel they must produce an agreement. A profession that measures itself by informed party satisfaction and durability of agreements rather than by closure percentages removes the structural incentive to push. A cooling off period before a mediated agreement becomes binding, and an explicit reminder that terminating without agreement is a legitimate outcome, protect the party who would otherwise sign out of exhaustion.

Fourth, compensate for the absent public record with private accountability. Because mediation is confidential, oversight must come from within the profession: regular supervision and peer case review, co mediation in high stakes or power imbalanced matters, and anonymised outcome monitoring that can reveal patterns no single case would show. Structured self reflection before and after each case, on what the mediator wanted, whom they found more sympathetic and where they intervened hardest, turns unconscious influence into examined judgment.

Understood this way, the tension the author identifies dissolves into a working standard: the mediator’s power is legitimate precisely to the extent that the parties can see it, question it, and remain free to walk away from it.

* Added by the WMO Editorial Team

REFERENCES *

1. Canadian Bar Association, Model Code of Conduct for Mediators, Ottawa.
2. Grillo, T. (1991). The Mediation Alternative: Process Dangers for Women. Yale Law Journal, 100, 1545 to 1610.
3. Astor, H. (2007). Mediator Neutrality: Making Sense of Theory and Practice. Social and Legal Studies, 16(2), 221 to 239.
4. Cobb, S., & Rifkin, J. (1991). Practice and Paradox: Deconstructing Neutrality in Mediation. Law and Social Inquiry, 16(1), 35 to 62.
5. Mayer, B. (2004). Beyond Neutrality: Confronting the Crisis in Conflict Resolution. Jossey Bass, San Francisco.
6. Moore, C. W. (2014). The Mediation Process: Practical Strategies for Resolving Conflict (4th edition). Jossey Bass, San Francisco.
7. Riskin, L. L. (1996). Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed. Harvard Negotiation Law Review, 1, 7 to 51.
8. Bush, R. A. B., & Folger, J. P. (2005). The Promise of Mediation: The Transformative Approach to Conflict. Jossey Bass, San Francisco.
9. Model Standards of Conduct for Mediators (2005), American Arbitration Association, American Bar Association and Association for Conflict Resolution.
10. European Code of Conduct for Mediators (2004), European Commission, Brussels.
11. Greatbatch, D., & Dingwall, R. (1989). Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators. Law and Society Review, 23(4), 613 to 641.

Identity crisis of ethnic minority in Bangladesh

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article examines the question of recognition facing the ethnic minorities of Bangladesh, a country whose constitution rests on the principle of homogeneity and Bengali nationalism and whose population is overwhelmingly Bengali speaking and Muslim. The author distinguishes the plain land minorities from the communities of the Chittagong Hill Tracts, describes the thirteen hill communities of Sino Tibetan descent, and documents the contested demography: official recognition of twenty seven ethnic minorities under the Small Ethnic Groups Cultural Institution Act of 2010 against claims by rights organisations of more than forty five communities, and a census figure of roughly 1.6 million against minority estimates approaching two million, in a statistical system that largely omits questions on ethnicity. Central to the paper is the terminological dispute following the United Nations Declaration on the Rights of Indigenous Peoples of 2007: the state’s position that no indigenous peoples exist in Bangladesh and its use of terms such as tribe, minor race and small ethnic group, set against the self designations Jumma, Pahari and Adivasi adopted by the communities themselves. The author traces the shifting vocabulary across legislation from 1950 to the Fifteenth Amendment of 2011, notes Bangladesh’s ratification of the ILO convention of 1957, and argues that non recognition produces multiple forms of discrimination, with plain land minorities particularly disadvantaged since, unlike the CHT, they are covered by no dedicated ministry or protective legislation.

KEYWORDS *

Bangladesh, ethnic minorities, indigenous peoples, recognition, Adivasi, Jumma, Pahari, Chittagong Hill Tracts, UNDRIP, ILO Convention 107, Fifteenth Amendment, plain land minorities, identity

INTRODUCTION

The population of Bangladesh is largely homogeneous – about 99 percent speak Bengali, the country’s state language and almost 90 percent are Muslims (Caf Dowlah, 2013). As a result, more than 45 ethnic minorities represent less than 2 percent of the total population. The constitution of Bangladesh has the principle of homogeneity ( Article 9) and Bengali nationalism. Ethnic minorities living in Bangladesh have been struggling to have their identity recognized by the state even since independence in 1971. Ethnic minorities can be categorized into two groups: plains land ethnic minorities and those in the Chittagong Hill Tracts regarded as Hilly land ethnic minorities (Dhamai, 2014). They are located mainly in the border regions in the northwest (Rajshahi-Dinajpur), central north (Mymensingh – Tangail), northeast (Greater Sylhet), south, and southeast (Chittagong, Cox’s Bazar, and Greater Barisal).

There are about Thirteen ethnic minority communities that live in the CHT and the people are of Sino-Tibetan descent belonging to the Mongoloid group and similar to the people of northeast India, Myanmar, and Thailand rather than the people of the other parts of Bangladesh. Those communities are known by different names like Chakma, Marma, Pankho, Khumi, Lusai, Murong, Bonojog, Tanchanya, Khyang, Chak, Tripura, Mro, and Ryang. People call them Jummo or Pahari (The hill Men).

MAIN CORPUS

In Bangladesh, there is a disagreement between government statistics and indigenous leaders about the number and size of the ethnic minority population. Officially the Bangladesh Government recognizes 27 ethnic minorities in the Small Ethnic Minority Cultural Institute Act of 2010. However different rights-based organizations claim that more than 45 ethnic minorities lived in Bangladesh before Independence in 1971 (Barman and Neo, 2014). There are also disagreements over the size of the ethnic population. The population survey in 2011 shows that ethnic minorities represent 1.10 percent of the population in Bangladesh, in other words, a total of 1,586,141 citizens. However, ethnic minorities claim that the exact number is closer to 2 million (Barman and Neo, 2014). Not only are there differences in statistical estimations but the censuses actually exclude questions about ethnic minorities. Without basic demographic information, it is far easier to ignore the presence and concerns of ethnic minorities.

The debate of indigenous and non-indigenous came into further focus following the declaration on the rights of indigenous peoples by the United Nations on 13 September 2007. It has made a major breakthrough in terms of indigenous peoples’ rights, and highlighted (i) the right to self-determination; (ii) the right to be recognized as distinct peoples; (iii) the right to free, prior, and informed consent; and (iv) the right to be free of discrimination.

In the Chittagong Hill Tracts, Parborth Chattogram Janashahati Samity (PCJSS) introduced the term “Jumma” as a collective name for the twelve different ethnic groups referring to the traditional jhum (swidden) cultivation practiced in the hills (Arens and Chakma, 2002). Ethnic minority groups in the CHT are also popularly known as “Pahari” (meaning hill people) (Roy, 2009). On the other hand, plain land indigenous groups particularly those in the north-western greater Rajshahi region used to be known as “Adivasi,” meaning aboriginal or indigenous. The term “adivasi” or “indigenous” received little attention from other parts of Bangladesh until 1990 (Roy, 2009). However, after the declaration of the International Year of the Indigenous Peoples by the United Nations in 1992, most of the indigenous peoples from CHT and plain referring themselves as Indigenous in English and as Adivasi in Bengali meaning (Roy, 2009).

The Bangladesh Government ratified the ILO convention (1957) in 1972 just after independence regarding the rights of indigenous and tribal peoples. This convention is the only international law on the rights of indigenous and tribal populations and covers a wide range of issues, including land, recruitment, and conditions of employment, vocational training, handicrafts, and rural industries, social security and health, administration, education, and means of communication.

The government has declared that there are no indigenous peoples (The Daily Star, 2011) in the country and has preferred to use terms such as “tribe” and “tribal” instead of “indigenous” (Roy, 2009). Ethnic minorities have been referred to in different names in different legislations. For example, a finance law in 1995 uses the term “indigenous hillmen”; the East Bengal State Acquisition & Tenancy Act of 1950 uses the term “aboriginal castes or tribes”; the National Poverty Reduction Strategy Paper adopted by the Government of Bangladesh in 2005 (“PRSP-I”) uses “adivasis/ethnic minorities”; and 2008, The Poverty Reduction Strategy Paper (PRSP-II) uses the name “indigenous communities” and “indigenous people” (Roy, 2009).

The Small Ethnic Groups Cultural Institution Act 2010 also mentions the phrase “khudro nrigoshthhi” (small ethnic groups) to refer to indigenous peoples. Finally, the government also refers to the indigenous peoples of Bangladesh as “tribes”, “minor races” and “ethnic sects and communities” in the 15th amendment of the constitution in 2011(Dhamai, 2014). The nation ship of Bangladesh original was Bangali. The constitution was amended by Military Ruler in 1977 to Bangladeshi. Again, the Supreme Court declares that “the people of Bangladesh shall be known as Bangalee as a nation and the citizens of Bangladesh shall be known as Bangladeshis” and finally ratified with Article 6.2 of the amended Constitution (Fifteenth Amendment) Act of 2011. This infers that the government can impose upon ethnic minorities the use of a Bengali identity rather than their own identity.

Regarding the Indigenous issue in Bangladesh, the Permanent Forum on Indigenous Issues of the United Nations published several reports discussed indigenous issues in Bangladesh in 2011 (UNPFII, 2011). In response, the Bangladesh Government declared that it would not use the term “indigenous” in the country, claiming that there are no indigenous people (The Daily Star, 2011). Finally, the government also refers to the indigenous peoples of Bangladesh as “tribes”, “minor races” and “ethnic sects and communities” in the 15th amendment of the constitution in 2011(Dhamai, 2014).

SUMMARY

As many ethnic minorities are not officially recognized as such, they face multiple discriminations. The CHT history has meant that it is now governed by a specific Ministry and a number of laws and political directives. This is not the case for plain land ethnic minorities who find themselves more surrounded by Bengalis and more easily slip off the policy radar.

CONCLUSION

The government has taken little political initiative to be provided specific support for the development and improvement of their livelihoods. According to Hossain Zillur Rahman, Executive Chairman of Power and Participation Research Centre (PPRC).

“The indigenous people of the plains are marginalized both in the situation and in discussions. The government and donors have a lack of knowledge about them. Indigenous people of the hills are given priority over them. Unlike the CHT, there is no substantive law for plain land ethnic communities that seek to protect their distinct culture, language, or tradition.

POTENTIAL SOLUTION *

This conflict has an unusual feature: it is fought largely over a word. The state’s reluctance concerns the term indigenous, because in international law that term carries implications for self determination and consent that a unitary state fears; the communities’ insistence concerns the same term, because it carries recognition of prior presence and distinct identity. A dispute over vocabulary is, for a mediator, an opportunity, since words can be separated from the substantive rights attached to them, and each addressed on its own terms.

First, decouple naming from entitlement. Both sides can be served by an approach that concedes the substance while leaving the label to the parties themselves: the state guarantees a defined set of rights, to language, culture, land, education and participation, by statute, without conceding the disputed term, while communities retain the right to name themselves as they wish in their own institutions and public life. Precedents exist in other states where legal protection and self designation developed on separate tracks. A structured dialogue between government representatives, minority organisations and constitutional scholars could clarify what the state actually fears in the word and whether those fears can be met by explicit safeguards on territorial integrity written into the same instrument.

Second, count before you decide. The article’s most consequential observation is that the census omits questions on ethnicity. No policy dispute can be resolved when the parties cannot agree how many people it concerns. An independently supervised ethnicity module in the national census, designed with minority participation and based on self identification, would provide the shared factual basis that both recognition and resource allocation require. Facts agreed in advance remove the largest single obstacle to later negotiation.

Third, close the plain land gap. The article shows that institutional attention has followed armed conflict: the CHT gained a ministry, councils and a land commission, while plain land communities, who never took up arms, gained nothing. This is a perverse incentive that no state should wish to create. A dedicated legal framework for plain land minorities covering land protection, cultural and linguistic rights and a standing consultative body would correct it, and would demonstrate that peaceful communities are heard on their merits.

Fourth, build participation rather than representation about. A permanent national council on minority affairs, with members chosen by the communities themselves and a mandate to be consulted on legislation affecting them, converts recognition from a symbolic question into a working relationship. Where minorities participate in shaping the rules that govern them, the question of what they are called gradually loses the weight it currently carries.

* Added by the WMO Editorial Team

REFERENCES *

1. The Constitution of the People’s Republic of Bangladesh, 1972, as amended by the Constitution (Fifteenth Amendment) Act, 2011, Articles 6 and 23A.
2. Small Ethnic Groups Cultural Institution Act, 2010, Bangladesh.
3. East Bengal State Acquisition and Tenancy Act, 1950, Bangladesh.
4. United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), General Assembly Resolution 61/295, 13 September 2007.
5. International Labour Organization, Indigenous and Tribal Populations Convention, 1957 (No. 107), ratified by Bangladesh in 1972.
6. United Nations Permanent Forum on Indigenous Issues (2011). Reports on the situation of indigenous peoples in Bangladesh, New York.
7. Bangladesh Bureau of Statistics (2011). Population and Housing Census 2011, Dhaka.
8. Roy, R. D. (2009). The ILO Convention on Indigenous and Tribal Populations, 1957 and the Laws of Bangladesh: A Comparative Review. International Labour Organization, Dhaka.
9. Arens, J., & Chakma, K. (2002). Bangladesh: Indigenous Struggle in the Chittagong Hill Tracts. In M. Mekenkamp et al. (Eds.), Searching for Peace in Central and South Asia. Lynne Rienner, Boulder.
10. Barman, D. C., & Neo, M. S. (Eds.) (2014). Human Rights Report on Indigenous Peoples in Bangladesh. Kapaeeng Foundation, Dhaka.
11. Dhamai, B. M. (2014). An Overview of Indigenous Peoples in Bangladesh. In Survival under Threat: Human Rights Situation of Indigenous Peoples in Bangladesh. Asia Indigenous Peoples Pact, Chiang Mai.
12. Dowlah, C. (2013). Jumma Insurgency in Chittagong Hill Tracts: How Serious is the Threat to Bangladesh’s National Integration and Why? Journal of South Asian Development, 8(1).

History of ethnic minority in law and rule

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article traces the legal and political history of land dispossession affecting the ethnic minorities of the Chittagong Hill Tracts (CHT) in Bangladesh, linking their loss of land to broader questions of identity and political recognition. The author follows the trajectory from the British military campaigns of the late eighteenth century and the annexation of the CHT as a district in 1860, through the administrative division into the Chakma, Bohmong and Mong circles in 1884, to the Hill Tracts Manual of 1900 with its restrictions on entry by outsiders and its concentration of authority in the Deputy Commissioner. The paper identifies the coexistence of three overlapping and partly inconsistent legal orders, national law, CHT specific law and indigenous customary law, as a central source of conflict, and documents successive interventions that eroded minority land rights: the Forest Act of 1927, the Kaptai Dam of 1960 with the displacement of about one hundred thousand people and the loss of some 54,000 acres of arable land, the withdrawal of special status in 1964, the Development Board Act of 1976, and the settlement of Bengali farmers. The author then describes the institutional architecture created after the 1997 Peace Accord, the Hill District Councils, the Regional Council, the Land Commission and the Ministry of CHT Affairs, and argues that implementation remains incomplete, the Land Commission largely ineffective, the powers of the Deputy Commissioner unresolved, and dispossession, eviction and land related violence ongoing, with plain land minorities even more exposed and largely invisible.

KEYWORDS *

Chittagong Hill Tracts, ethnic minorities, land dispossession, CHT Regulation 1900, customary law, Forest Act 1927, Kaptai Dam, Peace Accord 1997, Land Commission, Hill District Councils, legal pluralism, indigenous rights

INTRODUCTION

Ethnic Minorities are suffering from land dispossession, land-related violence, reduced livelihood options, and narrow access to key social services. At the same time, it anchors the challenges faced by extremely poor minorities in broader political economy questions around identity and political recognition.

In 1776 British military attacked CHT and the hill people fought strongly. This fighting between the Chakma king and the British army continued for a decade (Levene, 1999; Serajuddin, 1984). In 1887 the conflict ended when Lord Cornwallis and Chakma King agreed to sign a mutual agreement by giving the right to the British to do trade in CHT. The process of colonization had started during the period of East India Company in 1770 after the defeat of the Mughal emperor and Bengal ruler at the Battle. But CHT was a self-governed and independent territory until 1860 and then annexed to the province of British Bengal in 1860 as a “district”. Then the CHT administration changed in 1884 into three administrative circles namely the Chakma, the Bohmong, and the Mong were formed and divided into three territorial boundaries. A superintendent of hill tribes was appointed by the British to observe the administration of the chiefs and traditional clan chief and Headman (Roy, 2000; Roy, 2004).

MAIN CORPUS

One of the challenges about CHT land status is that there are three major co-existing laws: (i) formal law which applies to the entire country (ii) formal laws that are specific to the CHT and its indigenous people (iii) customary laws of the indigenous people. These laws overlap in some places but are also inconsistent in others. Traditionally, land use was determined not by legal documents but by traditional customary oral laws. During the British colonial period, however, land use systems were introduced, formalizing land use through laws and policies.

In 1900 the CHT manual act was adopted by the British ruler (Hill Tracts Manual) for the protection of ethnic minorities’ culture and traditional livelihoods. This regulation provided a special identity for CHT indigenous people as well as a homeland and declared the CHT area as an ‘excluded’ one. Rule 52 of the Hill tracts Manual stated that: “no person other than a Chakma, Mogh or a member of any hill tribe indigenous to the Chittagong Hill Tracts, the Lushai Hills, the Arakan Hill Tracts, or the State of Tripura shall enter or reside within the Chittagong Hill Tracts unless he is in possession of a permit granted by the Deputy Commissioner (administrative head of district) at his discretion.” DC got authority for the purpose of criminal and civil jurisdiction and for revenue and general purposes. This manual recognized the rights of ethnic people over the CHT but at the same time authorized the DC, usually, a non-tribal to decide about (section 7) “any orders passed by the Local Government under Section 6, the general administration of the said Tracts, in criminal, civil, revenue and all other matters”.

Unfortunately, successive governments of British India and Pakistan have amended the CHT regulation 1900 act several times and the traditional leadership (Raja, Headman, Karbari) gradually lost control over land. The 1900 Regulation still remains an active law for a legal and administrative system in the CHT (Roy, 2004; Barkat et al. 2009).

After the independence of Pakistan and India in 1947, CHT fell under Pakistan (East Pakistan). The first and major blow to the minority was the construction of the Kaptai Hydro-electric dam in 1960. About 100,000 ethnic minority people had to be displaced from their ancestral land and resulted in the loss of about 54,000 acres of productive arable land.

In 1964, the government withdrew the special status of the CHT people by amending the CHT act. This amendment allowed the entry of ‘external’ people into the CHT (Roy, 2000; Roy, 2004). After the independence of Bangladesh in 1971, the rights of the CHT people were largely ignored in the constitution of 1972. In 1976 the CHT development Board act (repealed in 2014) was created. However, the main intention of the act was to settle Bengali farmers within the CHT by redistributing indigenous people’s land (Faiz and Mohaiemen, 1997). In 1989, three Hill District Councils of Rangamati, Khagrachari, and Bandarban were created with a view to improving the socio-economic conditions of the CHT people. This move was enacted in the Local Government Councils Bills Acts in 1989. In 1997, a peace accord was signed between the Government and PCJSS (Parbatya Chattagram Jana Samhati Samiti), which ended 25 years of protracted armed conflict between the government and PCJSS. The CHT was officially again recognized as a “tribal–inhabited area” through the peace accord.

In accordance with the peace accord, the Hill District council acts were amended in 1998, and in 1998 the Chittagong Hill Tracts Regional Council was formed, followed by the CHT land commission in 2001. Apart from these, one specific ministry called the “Ministry of Chittagong Hill Tracts Affairs” was created based on the peace accord. The aim of the Ministry was to regulate the above-mentioned institutions. As a result, the CHT has three different governance systems namely: the traditional government (three Circle Chiefs), the government system (deputy commissioner office), and the self-rule government system (hill district council and CHT regional council). The Ministry of CHT Affairs (MoCHTA) is responsible for the supervision of all activities in CHT. 17 years after it was signed, the CHT peace accord is still to be fully implemented, and the land commission remains largely inefficient (Faruque, 2014).

Historically CHT ethnic groups rely on agriculture, practicing subsistence Jhum (swidden) cultivation. A central policy was the Chittagong Hill Tracts Regulation Act of 1900 gave ethnic minorities unique access to the hilly land since none can take possession without permission of DC. Later in 1927, the Forest Act was introduced, however, and reduced ethnic minorities’ access to land as well as forest. The Act states that “The Government may constitute any forest-land or waste-land [or any land suitable for afforestation] which is the property of Government”. The law prohibited the entry of anybody into the forest area without permission of the forest department.

The mainland grabbing processes in the CHT were (i) state acquisition of private and common lands of the indigenous people, converting these into state-owned lands; (ii) forcible occupation of private and common lands of Jumma by Bengali interest groups and agencies, resulting in the conversion of these into the private property of the latter; (iii) privatization of Hilly common lands by individual members of indigenous communities, converting these into their private property; and (iv) acquisition of the titled lands given to Bengali settlers during the counter-insurgency by influential Bengali interest groups based both inside and outside the CHT.

The CHT land commission was formed in 2011 according to the CHT peace accord to solely look after different land-related issues such as land-related settlement or leasing, sales or transfer, etc. The council has the power to override the Deputy Commissioner as per the CHT regulation of 1900. However, in reality, the District Commissioner’s offices have violated the law and continue to exercise their power over CHT land issues (Adnan and Dastidar, 2011).

There are some inconsistent laws. For example, The Land acquisition law empowers the DC to exercise force to acquire designated lands without consultation with landowners but the CHT land commission has been given the responsibility of lands in CHT without curtailing the authority of DC. Land dispossession and eviction are still common in the CHT. For this reason, peace in the CHT is largely dependent upon the resolution of the land issue” (Barman and Neo, 2014) report that in 2013 the forest department, elites, and even the security forces grabbed 3,992 acres of land. In 2011, there were 111 cases of houses being burnt down due to land-related conflicts, followed by another 36 in 2013. In the CHT, 13 families were evicted from their ancestral land in 2012 and 26 families in 2013 (Barman and Neo, 2014). These occurred despite the peace accord (Adnan and Dastidar, 2011).

SUMMARY

The plain land ethnic minorities lost their land because outsider Bengalis took possession of those, in the CHT land dispossession was by and large undertaken by the government and supervised by military forces and elites (Adnan and Dastidar, 2011). It might be that plain land ethnic minorities have a weak political background or lack mobility because the population is more scattered than in the CHT. There is little doubt that the plain land ethnic minorities are more insecure in terms of land-grabbing, threats, evictions, and killings. In most cases, these go unreported and are actually ‘invisible’ to different governmental and non-governmental agencies led usually by representatives of the majority Bengali population (Barkat et al, 2009a; Dhamai, 2014).

CONCLUSION

The important political factors related to land in Chattogram Hill Tract are enormous to identify the cause of conflicts between Banglali (people from plain land) and ethnic minorities in CHT. These changes in law and political actions resulted in ethnic minorities being excluded from development intervention, facing ethnic violence, and suffer land dispossession. This is the historic reality for the ethnic minority in Bangladesh.

POTENTIAL SOLUTION *

The article identifies with unusual precision where this conflict actually lives: not in any single injustice but in the coexistence of three legal orders that contradict one another, so that every actor can point to a valid law supporting an incompatible claim. As long as the Deputy Commissioner and the Land Commission both hold authority over the same land, and as long as customary rights exist in practice but not in enforceable form, dispossession will continue regardless of political intent. A resolution therefore has to be legal before it can be social.

First, remove the contradiction rather than manage it. A legislative harmonisation review, conducted jointly by the Ministry of CHT Affairs, the Regional Council and the traditional circle authorities, should map every point where national land acquisition law, the 1900 Regulation, the Forest Act and the Land Commission Act conflict, and settle each one explicitly. The decisive question, whether the Land Commission’s jurisdiction genuinely displaces the Deputy Commissioner’s acquisition powers within the CHT, must be answered unambiguously in statute, because a commission that can be overridden is not a remedy but a delay.

Second, make customary tenure justiciable. Oral customary rights are real to those who hold them and invisible to those who adjudicate them. Recognising community land held under mouza and karbari administration as a registered category, and admitting oral and community testimony as evidence before the Land Commission, would let the third legal order defend itself rather than merely exist.

Third, protect possession while claims are pending. A moratorium on evictions, new leases and forest reclassification in disputed areas until the Commission has ruled would end the pattern in which the facts on the ground change faster than the process meant to judge them, and would remove the incentive to create irreversible situations.

Fourth, resolve at the lowest possible level. Most disputes between neighbouring hill and settler families concern boundaries, water and access rather than history. Trained mediation panels at mouza level, composed of hill and Bengali members in balance and supported by the traditional leadership, could settle these locally, with only unresolved or systemic cases escalating to the Commission. This preserves relationships that no ruling can restore.

Fifth, make invisibility impossible. Independent, published monitoring of evictions, land transfers and land related violence, covering plain land minorities as well as the CHT, creates the record without which no policy can be evaluated and no community can be defended. What is counted can be corrected; what remains unreported remains permanent.

* Added by the WMO Editorial Team

REFERENCES *

1. The Chittagong Hill Tracts Regulation, 1900 (Regulation I of 1900), including Rule 52 of the Hill Tracts Manual, and subsequent amendments.
2. The Forest Act, 1927 (Act No. XVI of 1927), British India, as applicable in Bangladesh.
3. The Chittagong Hill Tracts Development Board Ordinance, 1976, Bangladesh (repealed 2014).
4. The Hill District Local Government Council Acts, 1989, as amended 1998, Bangladesh.
5. The Chittagong Hill Tracts Peace Accord, Dhaka, 2 December 1997.
6. The Chittagong Hill Tracts Regional Council Act, 1998, Bangladesh.
7. The Chittagong Hill Tracts Land Dispute Resolution Commission Act, 2001, as amended 2016, Bangladesh.
8. The Acquisition and Requisition of Immovable Property Act, 2017, Bangladesh (land acquisition powers).
9. Roy, R. D. (2000). Land Rights of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh. IWGIA, Copenhagen.
10. Roy, R. D. (2004). Challenges for Juridical Pluralism and Customary Laws of Indigenous Peoples: The Case of the Chittagong Hill Tracts, Bangladesh. Arizona Journal of International and Comparative Law, 21(1), 113 to 182.
11. Barkat, A. et al. (2009). Socio Economic Baseline Survey of Chittagong Hill Tracts. Human Development Research Centre, Dhaka.
12. Adnan, S., & Dastidar, R. (2011). Alienation of the Lands of Indigenous Peoples in the Chittagong Hill Tracts of Bangladesh. Chittagong Hill Tracts Commission and IWGIA, Dhaka and Copenhagen.
13. Levene, M. (1999). The Chittagong Hill Tracts: A Case Study in the Political Economy of Creeping Genocide. Third World Quarterly, 20(2), 339 to 369.
14. Serajuddin, A. M. (1984). The Origin of the Rajas of the Chittagong Hill Tracts and their Relations with the Mughals and the East India Company. Journal of the Pakistan Historical Society.
15. United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), General Assembly Resolution 61/295, 13 September 2007.

Ethnicity and jhum cultivation in Bangladesh

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article examines land as the arena in which ethnicity and environment intersect in the Chittagong Hill Tracts (CHT) of Bangladesh, and traces how competing systems of land tenure lie at the root of the region’s conflict. The author contrasts jhum, the swidden agriculture practised by the ethnic minority communities and grounded in communal ownership, reciprocity and shared access, with the plough based, individually titled cultivation favoured by state policy, and shows how the two entail incompatible concepts of ownership. The paper follows the successive administrative reclassifications of land, from the Unclassed State Forests managed through mouza headmen under British rule to their redefinition as khas land after 1989 and their leasing for horticulture, and documents the consequences of state development policy: scientific forestry that excluded local people from the forests, tea and rubber plantations, the paper mill industry, the prohibition of jhum in protected forest areas, and the Kaptai Dam of 1962, which submerged a large share of the best cultivable land and displaced approximately one hundred thousand people who, lacking individual title, received no compensation. The author argues that land scarcity in the CHT results primarily from these policies and from settlement from the plains rather than from any failure of jhum, and observes that despite its decline jhum remains the foundation of hill peoples’ cultural identity.

KEYWORDS *

Chittagong Hill Tracts, land tenure, jhum cultivation, swidden agriculture, communal ownership, khas land, Unclassed State Forest, Kaptai Dam, displacement, indigenous rights, environment and ethnicity, land alienation

INTRODUCTION

The land is the platform on which environment and ethnicity have regular discursive interaction. Claims of ethnicity and claims to land are intertwined, suggesting the need for a comprehensive understanding of land tenure and land-use patterns in the Chattogram Hill Tracts (CHT). The land is crucially important and the relationship between ethnicity and environment. It is especially involve in land use and jhum agricultural systems.

There are a number of an ethnic minority groups in CHT. It is important to note that although all these groups share a common mode of subsistence, that is jhum, they nonetheless differ from each other in terms of religion, language, and social organization to some extent. Jhum cultivation, popularly known as slash and burn is the most prevalent form of cultivation in the hills of tropical Asian countries including Bangladesh. Small holes are made throughout the sloppy fields and seeds of different crops are sown in the holes in April. Crops are harvested in succession as they ripe between July to December.

MAIN CORPUS

In CHT, at present due to different government development projects, there are two conflicting interests in resource use: one is a system of subsistence agriculture, jhum by ethnic minorities and the other is the commercial exploitation of the environment (forestry, khas lands, etc) by the State and the dominant Bengali.

Now, after many changes in law and the introduction of settlement of plainland Bangalis, there are two broad categories of land in CHT: Reserve Forest (RF).Under the management of the Forest Department and Unclassed State Forests (USF). USF is in practice regarded as the commons of the jhumia that includes village jhum common and settlement areas. Initially, during the British period, the USF was divided into mouzas under the headmen who were formally vested with the responsibility of managing and protecting these forests. The government is gradually taking over the USF for appropriate use for economic reasons and the development of CHT.

USF is traditionally under community ownership. A contradictory form of ownership rights exists in relation to the land tenurial system in the CHT. There has been a contrast between jhum cultivation and plow agriculture, which also entails different concepts of ownership and rights to land. In the valleys, plow land is leased by the administration, and rent is paid according to the size of the land (Roy 1992; Mey 1981). The long lease ensures continuity of individual ownership and land may be inherited. Land for the jhum cultivators is not private property but is treated by them as “de facto” property of the village communities (Loffler 1990: 45). The land is communally owned; every household has equal access to the land, there is no idea of buying and selling land.

More recently, however, since 1989 the government has redefined USF as khas lands (lands that no individual has any claims). Under the new categorization of khas, these lands are now increasingly leased out to private persons in the name of baggan (horticulture) development.

The modern perception of jhum, the characteristic form of agriculture in the CHT, was a primitive method of agriculture. As it entails fallow periods, it was considered to be a waste of resources. On the other hand, Jhumma perceived jhum as a way of life, based on the conception of communal ownership, exchange and sharing and had been in harmony with their ecology (Dewan 1990; Roy 1996, Mohsin 1997; Schendel 1992; Tripura 1992).

The Government policy of land use in CHT had a different mission in contrast to the traditional local method of jhum. For many years, repeated efforts were made to replace jhum cultivation with plow cultivation because this was expected to yield higher revenues and to be less ‘wasteful’ of timber resources and land.

In the CHT, the government now has introduced two types of land tenure system: “proprietary right” granted to the sedentary plow cultivators together with individual ownership rights, while the jhum cultivators were given the right to use the land over which the state retained proprietary rights (Roy 1992; Mohsin 1997; Gain 1998, 2001). This kind of land entitlement created a contradictory land tenure system, undermining the traditional customary right, that is an ‘individualistic system’ as opposed to a ‘community system’, and beginning the policy of land alienation (Roy 1996,1998; Kalindi 2000).

The government also initiated the policies regarding modernizing agriculture and scientific forestry in order to maximize the revenue gains and reduce indigenous peoples’ access to resources. The entire power structure was changed, making the State owner of almost all land and leading to land alienation. Control of resources had passed from the people to the government or a larger state institution as well as private leaseholders went there from plan lands. The tea and rubber plantation is rampant in the CHT. The other significant change in relation to land and resource exploitation in CHT was the development of scientific forestry. The local people were barred from entering and using the resources of these forests in an attempt to protect them. The forest as a communal space thus became a commercial venture.

More than 40% of their best cultivable land was submerged under the reservoir of the Kaptai Dam constructed in 1962 causing displacement of about 100,000 people, who became environmental refugees migrating inside the country. Jhum cultivators were the worst affected as they were not compensated by the government since they had no direct ownership of the land.

The industrialization of the economy was also begun with the establishment of the Komafhully Paper Mill. The Hill Tracts with the wood for making papers. Furthermore, jhum was completely banned as a cultivation practice in the Government protected forest areas. Little consideration was given to the social and cultural values of the hill people who were thus marginalized through their exclusion from the forests.

The exploitative nature of the Kaptai Dam hydroelectric project and the transmigration of the Bengali settlers have caused a massive shortage of land in the CHT which is attributable to government policies rather than a failure of jhum cultivation as a method” (Report of the CHT Commission 1991). Land rights have also similarly been usurped; the local people have been turned into environmental refugees leading to a worsening situation for the ethnic minorities.

Another dimension of ‘modem’ resource utilization involved the renewed declaration of the Reserve Forests by the different governments. This paved the way for the government to legitimize the acquisition of land under jhum cultivation. Jhum was completely banned as a cultivation practice in the government ‘protected forest’ areas.

The policy clearly revealed the motive of land encroachment it is ironic that the government blamed jhum cultivation solely for soil degradation and deforestation (Ahamed 2002) given, that with the diminution of the forest, the sustainability of jhum cultivation was becoming untenable.

Traditionally jhum is the predominant form of subsistence agriculture for all the inhabitants of the CHT. The CHT topography and climate make it imperative that the people fall back upon jhum agriculture for their livelihood. Their agriculture is mainly oriented towards subsistence, with limited production of cash crops. The principal crop is rice with other vegetables, com, lentils, chillis, and garlic grown on a smaller scale.

SUMMARY

State policies undertaken in the name of development have also marginalized the hill people of CHT from their land, as the result they are becoming increasingly landless.

It has been suggested that jhum agriculture correlates with conceptions of collective ownership of land. For example, a report by the Land and Human Rights Commission (1991) states that hill people could only subsist from their fields as part of a community, bound in ties of mutual reciprocity. For the jhum cultivators of the CHT, land is common property, belonging to the community, kinship groups, and even members of the spirit world, with individual families exercising the right to use the land.

CONCLUSION

Despite the fact that jhum is declining due to various socio-political reasons, the tradition of jhum cultivation is nevertheless still perceived as the basis of hill people’s cultural identity. In the CHT, there are efforts to uphold a common cultural identity.

POTENTIAL SOLUTION *

The conflict described here is at bottom a collision between two legal imaginations. One recognises only what can be registered, titled and taxed to an individual; the other holds land as a commons entrusted to a community. Every displacement documented in this article, from the Kaptai reservoir to the leasing of khas land, became possible because the second imagination had no legal standing in the first. A neutral path forward therefore begins by giving customary tenure a legal existence, rather than by asking one system to dissolve into the other.

First, legally recognise communal title. Bangladesh can, without altering its unitary structure, create a category of registered community land held collectively by mouza or village, administered under customary rules with headmen and karbaris accountable to their communities, and protected against alienation without free, prior and informed consent. Recognition of this kind converts an invisible right into a defensible one, and it is what the compensation regime of 1962 lacked when jhum cultivators lost their fields without title and therefore without redress.

Second, resolve disputes where they arose. A functioning Land Commission with hill representation and procedures that admit oral testimony, mouza records and customary evidence can address the accumulated backlog case by case. Mediation should be the default first stage: many disputes between hill families and settler families concern boundaries, access and water rather than sovereignty, and neighbours who reach their own agreement are far more likely to keep it than parties bound by an imposed judgment. Cadastral survey should follow dispute resolution, not precede it, so that survey does not silently confirm contested occupation.

Third, replace the deficit narrative about jhum with evidence. Framing swidden agriculture as primitive has justified decades of land acquisition. Joint research by agricultural scientists and jhum practitioners on fallow cycles, agroforestry and soil conservation would establish what is actually sustainable at current population densities, and could yield hybrid systems that raise incomes while preserving the communal basis of the practice. Where jhum has become untenable, the alternatives should be developed with the communities, not for them.

Fourth, share the benefits of the resources. Reserve forests, plantations, hydropower and tourism all generate revenue from land the hill peoples once used freely. Statutory revenue sharing with the Hill District and Regional Councils, co management agreements granting communities defined rights of access and harvesting in protected forests, and priority employment in extractive and plantation industries, transform resources from a cause of dispossession into a shared endowment.

Fifth, acknowledge the past. A formal acknowledgment of the Kaptai displacement, combined with a resettlement and reparation programme for those still landless, would cost far less than the enduring bitterness it addresses. Where trust has been broken by law, it can only be rebuilt by law that visibly repairs.

* Added by the WMO Editorial Team

REFERENCES *

1. The Chittagong Hill Tracts Regulation, 1900 (Regulation I of 1900), and subsequent amendments governing land administration in the CHT.
2. The Chittagong Hill Tracts Land Dispute Resolution Commission Act, 2001, as amended 2016, Bangladesh.
3. The Chittagong Hill Tracts Peace Accord, Dhaka, 2 December 1997, Part D on rehabilitation and land settlement.
4. Report of the Chittagong Hill Tracts Commission (1991). Life Is Not Ours: Land and Human Rights in the Chittagong Hill Tracts, Bangladesh. Copenhagen and Amsterdam.
5. Roy, R. D. (2000). Land Rights of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh. IWGIA, Copenhagen.
6. Mohsin, A. (1997). The Politics of Nationalism: The Case of the Chittagong Hill Tracts, Bangladesh. University Press Limited, Dhaka.
7. Gain, P. (Ed.) (1998, 2001). The Chittagong Hill Tracts: Life and Nature at Risk. Society for Environment and Human Development (SEHD), Dhaka.
8. Van Schendel, W. (1992). The Invention of the Jummas: State Formation and Ethnicity in Southeastern Bangladesh. Modern Asian Studies, 26(1), 95 to 128.
9. Löffler, L. G. (1990). Ecology and Human Rights: The Case of the Chittagong Hill Tracts. Anthropological studies on the CHT.
10. Adnan, S. (2004). Migration, Land Alienation and Ethnic Conflict: Causes of Poverty in the Chittagong Hill Tracts of Bangladesh. Research and Advisory Services, Dhaka.
11. United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), General Assembly Resolution 61/295, 13 September 2007, on free, prior and informed consent and lands, territories and resources.
12. International Labour Organization, Indigenous and Tribal Populations Convention, 1957 (No. 107), ratified by Bangladesh.

Classification of Mediation

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article distinguishes and compares the three principal approaches to mediation within Alternative Dispute Resolution: facilitative or interest based mediation, evaluative mediation, and rights based mediation. The author describes facilitative mediation as resting on two guiding principles, party self determination and a neutral third party who improves communication, surfaces underlying interests and opens creative options beyond the legal frame, on the assumption that the parties themselves understand their situation best. Evaluative mediation is presented as a process in which the mediator draws on professional knowledge, law, industry practice and norms to assess the strengths and weaknesses of the parties’ positions and to predict likely court outcomes, a form frequently used in court mandated mediation. Rights based mediation is described as focusing on legal rights, established standards and norms, aiming at outcomes consistent with what a court would achieve, and resembling adjudicative but non binding procedures such as non binding arbitration. The author notes that rights are often unclear or contradictory, which is precisely why parties turn to a third party, and closes by contrasting these approaches with the interest based objective of a solution that satisfies all concerned.

KEYWORDS *

Alternative Dispute Resolution, mediation approaches, facilitative mediation, interest based mediation, evaluative mediation, rights based mediation, self determination, neutrality, non binding arbitration, legal merits, underlying interests

INTRODUCTION

The Alternative Dispute Resolution (ADR) has different forms. Mediation is one of these and it is a dialogue process designed to capture the parties’ insights, imagination, and ideas and facilitate the dialogue to come to a solution to the dispute. Alternatively, the conflict may be resolved by one disputant choosing to abandon the claim or, alternatively, by his or her opponent’s choice to allow it.

There is considerable debate in the field of conflict resolution about these different approaches and styles of mediation and different approaches which can be applied to resolve disputes in the context of mediation. There are three general types of mediation approaches: (a) facilitative or ‘interest-based mediation, (b) evaluative mediation, and (c) rights-based mediation.

Facilitative meditation (Interest-based) assists disputing parties to evaluate their own situation and letting them mutually make their own decisions. The method provides only process assistance for negotiation and using Interest-based approaches. Evaluative mediation provides suggestions or recommendations. The classic role of Evaluative Mediation is to make decisions and give opinions with respect to the merits and likely outcomes of disputes, using predetermined criteria to evaluate evidence and arguments presented by adverse parties. In the case of Right-based mediation, the procedure includes finding facts by properly weighing evidence, judging credibility and allocating the burden of proof, determining and applying relevant law, rules, or customs, and rendering an opinion.

MAIN CORPUS

The Interest-based is based on two guiding principles: firstly, that of self-determination of the parties with respect to the resolution of their disputes and, secondly, that of the neutral third-party facilitator who facilitates communication among the parties, promotes understanding of the issues, focuses the parties on their interests and seeks creative problem-solving, including creative solutions outside the legal normative box, in order to enable the parties to reach their own agreements and resolutions to their problems.

The method focuses on the negotiation, help them in identifying the issues, finding common underlying interests, and formulating proposals to resolve the dispute. It does not provide assessments or predictions. This approach emphasizes the underlying needs or interests of the parties and encourages a broader range of solutions or resolutions to the dispute which address the underlying interests, business or otherwise, of the parties instead of, or in addition to, legal interests. The method while exploring parties’ interests, the problem to be solved takes on new dimensions. The parties at an impasse may discover several possible solutions to their problem, and may also discover shared compatible interests.

The process encourages the disputants to assess their own position. By encouraging the parties to explore underlying interests, which are the needs that motivate any legal position taken, they are in effect defining the real problem. The Mediator focuses on mutuality and satisfaction for both sides because their aim is to reveal both “stated demand” as well as “interests,” the underlying issues and feelings which may otherwise remain unexpressed or concealed in a particular dispute.

The mediator who facilitates assumes that the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator and, perhaps, better than their lawyers. Thus, facilitative mediation assumes that his principal mission is to clarify and enhance communication between the parties in order to help them decide what to do.

Evaluative mediation is a process that may include an assessment by the mediator of the strengths and weaknesses of the parties’ cases and a prediction of the likely outcome of the case on the basis of law and rule of the country. An evaluative mediator evaluates the dispute based on his or her professional knowledge and experience but allowing the parties to use this expert knowledge during mediation. An evaluative mediator provides the parties with information regarding the strengths and weaknesses of their positions and may predict likely court outcomes in case of a legal battle. The evaluative process draws on law, industry practice, culture and norm, and other authoritative guidelines to provide direction to the participants on appropriate grounds for a settlement. It can have a strong impact since it is coming from the mediator. The knowledge of the Mediator regarding related law and understanding of the case has an impact on the outcome. The experience, training of the Mediator plays a role in the outcome of the process.

Instead of focusing primarily on the underlying interests of the parties involved, evaluative Mediators may be more likely to help parties assess the legal merits of their arguments and make fairness determinations. Neutral evaluation is a reasonable service that parties may want to attain. She may only help the parties explore the law related to the case, as argued by the parties.

Evaluative Mediation is most often used in court-mandated mediation. The goals of such mandatory mediation are best achieved, and the parties know what to expect from the court. It is a process where a third party would offer an evaluation of the legal merits of a dispute. A rights-based approach focuses on the legal rights of the parties and attempts to achieve a resolution that meets the relevant legal criteria of the dispute in a manner that is consistent with resolutions achieved in a traditional court setting. Different legal rights are more pertinent since conflict results in human rights violations, and human rights violations can result in conflict.

A conflict resolution method that focuses primarily on standards or established rules is called a “rights-based” procedure. A method that focuses primarily on standards or established rules is called a “rights-based” procedure. This approach focuses on the legal rights of the parties and attempts to achieve a resolution that meets the relevant legal criteria of the dispute in a manner that is consistent with what would be achieved in a court setting. This will often lead to a process whereby a third party would encourage the parties to evaluate or even offer an evaluation of the legal merits of the dispute.

When people in conflict choose to rely on standards or “rights,” they commonly do so because it may seem either sensible and/or more persuasive to them take as a benchmark that has some legitimacy outside of their own dispute. Some of these “rights” go beyond common practice and are formalized in law, policies, or contracts. Other rights are closer to what we might consider “norms,” socially accepted standards of behavior within a particular culture for such concepts as “reciprocity,” “precedent,” “ethics” and “fairness.”

Sometimes rights are unclear. Usually, the lack of clarity is because there are different—and somewhat contradictory—standards that might apply and that might be appealing to only one of the disputants. Reaching an understanding of rights, where the outcome will determine who gets what can, therefore, often be difficult, leading the parties to turn to a third party to help them determine whose position has more merit.

SUMMARY

The right-based procedures involve a third party adjudication. A third party (judge) has the power to adjudicate and hand down a binding decision and mediation is a third party that manages the agreement-seeking process and may provide general information about applicable standards, but does not have the power to decide on the content of the agreement.

CONCLUSION

The rights-based mediation processes are similar to adjudicative processes such as non-binding arbitration. In non-binding arbitration, the disputing parties put their case before an impartial third party who renders an opinion or recommendation, which the parties may choose to accept or not. Thus, the process is adjudicative, or determinative but not binding or enforceable. When disputants adopt an interest-based approach, they do so with the understanding that their objective is a solution that satisfies all concerned. This method focuses primarily on the needs and concerns of the parties in conflict is called an “interest-based” procedure.

POTENTIAL SOLUTION *

The tension this article maps is a live one in daily practice: parties often want both the freedom to design their own solution and the reassurance of knowing where they stand legally. Treating the three approaches as competing schools forces an unnecessary choice. A practical resolution treats them as sequenced tools within one process, governed by informed consent.

First, choose the approach with the parties, not for them. At the outset the mediator should explain the three modes in plain language and ask the parties to agree which they want, and under what conditions the mode may change. This single conversation prevents the most common complaint in mediation, that a party expected a facilitator and encountered a judge, or expected guidance and received only questions. The agreement to mediate should record the chosen approach explicitly.

Second, begin facilitative and stay there as long as it is productive. Interest based work does what no evaluation can: it uncovers needs the legal frame never captures and generates options a court could never order. Since most disputes contain more interest than law, the facilitative phase usually produces the durable core of any settlement.

Third, admit evaluation only on request, only transparently, and only late. When parties deadlock over their differing predictions of a court outcome, a reality test is often the key that turns the lock. Safeguards make it safe: the evaluation is given only if both parties ask for it, is framed as a range of probable outcomes rather than a verdict, is delivered to both sides in the same words, and is expressly non binding. Where the mediator’s own credibility might distort the process, the cleaner solution is a separate neutral evaluator, leaving the mediator’s impartiality untouched.

Fourth, use rights as a floor, never as a ceiling. Legal and normative standards protect the weaker party from an agreement that merely reflects power, so a mediator should ensure both sides know their rights before signing, encouraging independent legal advice where the stakes warrant it. Above that floor, the parties remain free to trade, invent and exceed what any court could award.

Handled this way, the debate the author describes resolves itself: facilitative mediation supplies the method, evaluation supplies the reality check, and rights supply the protective boundary, with party self determination governing the movement between them.

* Added by the WMO Editorial Team

REFERENCES *

1. Riskin, L. L. (1996). Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed. Harvard Negotiation Law Review, 1, 7 to 51.
2. Riskin, L. L. (2003). Decisionmaking in Mediation: The New Old Grid and the New New Grid System. Notre Dame Law Review, 79, 1 to 53.
3. Fisher, R., Ury, W., & Patton, B. (2011). Getting to Yes: Negotiating Agreement Without Giving In (3rd edition). Penguin Books, New York.
4. Ury, W. L., Brett, J. M., & Goldberg, S. B. (1988). Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict. Jossey Bass, San Francisco (interests, rights and power framework).
5. Moore, C. W. (2014). The Mediation Process: Practical Strategies for Resolving Conflict (4th edition). Jossey Bass, San Francisco.
6. Bush, R. A. B., & Folger, J. P. (2005). The Promise of Mediation: The Transformative Approach to Conflict. Jossey Bass, San Francisco.
7. Boulle, L., & Nesic, M. (2001). Mediation: Principles, Process, Practice. Butterworths, London.
8. Model Standards of Conduct for Mediators (2005), American Arbitration Association, American Bar Association and Association for Conflict Resolution.
9. European Code of Conduct for Mediators (2004), European Commission, Brussels.
10. UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (2018), United Nations Commission on International Trade Law.

CHT Problem – History of crisis and attempts to resolve

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article traces the conflict in the Chittagong Hill Tracts (CHT) of Bangladesh, rooted in the intrusion of plain land settlers onto the lands of the indigenous hill peoples and in the gradual curtailment of the region’s historic autonomy under successive administrations. The author outlines the special status of the CHT under Mughal, British and Pakistani rule, the founding of the Parbatya Chattagram Jana Sanghati Samiti (PCJSS) in 1972 with its four point demands, the emergence of the armed Shanti Bahini, and the long sequence of negotiations conducted through successive committees: the Tribal Convention of 1977, the Liaison Committee and National Committee of the 1980s with the five, seven and nine point proposals, the Parliamentary Committee dialogues and ceasefire of the 1990s, and finally the seven rounds of talks that produced the historic CHT Peace Accord of December 2, 1997, with its four parts on recognition, local government, the Regional Council and rehabilitation. The author then documents the contested aftermath: the arms surrender of 1998, the rejection of the Accord by sections of the hill organizations, the founding of the United Peoples’ Democratic Front demanding full autonomy, the splits within the hill peoples’ movements, and the mutual accusations of violence reported to the Chittagong Hill Tracts Commission. The paper concludes that the problem of the ethnic minorities remains unresolved and their struggle continues.

KEYWORDS *

Chittagong Hill Tracts, Bangladesh, indigenous peoples, Jumma, PCJSS, Shanti Bahini, CHT Peace Accord 1997, regional autonomy, land rights, negotiation, UPDF, ethnic minorities

INTRODUCTION

The problem arises with the intrusion of plain land people and taking over lands ethnic minority in Chattogram Hill Tracts (CHT). The ethnicity, cultural, linguistic, and religious distinctiveness of the indigenous people of CHT was also disturbed by the plain land Bangalis. The governments of the last few centuries also gradually curtail the autonomy of the region.

Historically the CHT had always enjoyed an autonomous or quasi-autonomous status under the Mughals, British, and Pakistan periods. Under the British, the region was kept apart from both the provinces of Bengal and Assam and ruled indirectly by the Governor-General Council through the Deputy Commissioner, administrative head of the district. In 1860, the British Government introduced a direct rule in CHT and declared it an administrative district, naming it the ‘Chittagong Hill tracts’, by Act XXII of 1860. In 1990, the British enacted the CHT Regulation and the region has been administered until 1989. After the annexation of the Hill Tracts, the British gradually whittled away the power of the Chakma and Marrma kings and introduced a form of diarchy whereby the authority of the hill rajas and their officials was permitted to be exercised within the overall supervisory control of the British Raj. Despite the fact that the CHT regulation drastically limited the power of the local administration, it contained a number of provisions that were essential safeguards for the hill people’s political and economic integrity.

MAIN CORPUS

In 1972, at the initial stage of independent Bangladesh, Parbatya Chattagram Jana Sanghati Samiti (PCJSS) had been formed to realize the demands of the tribal communities of the CHT and they demanded four points under the leadership of Mr. Manindra Narayan Larma. Their demands were (Shelly, 1992):

• i. Autonomy for the Chittagong Hill Tracts and the establishment of a special legislative body;
• Retention of Regulation, 1900, in the new constitution of Bangladesh;
• Continuation of the office of the Tribal Chiefs; and
• A constitutional provision restricting the amendment of the Regulation of 1900 and imposing a ban on Bengali settlement in CHT.

At that time the then government was not prepared to listen to the demand of PCJSS due to over Burdon of with re-establishing the administration, reconstructing the war-ravaged economy, managing the counter-revolutionary turbulent activities of the anti-liberation armed groups, withdrawal of Indian armed forces, achieving recognition of the country and so on; Most importantly, involvement of some groups of the ethnic minorities in the anti-liberation activities in 1971. The Chakma King was involved in anti-Bangladesh activist. He has left Bangladesh for West Pakistan and became Minister of the Pakistan government. Finally, the constitution of Bangladesh did not recognize the special status of ethnic minorities. It was reported that in 1973, the arms wing of PCJSS under name of ‘Shanti Bahini’ formed for arms struggle to achieve their demands.

The next military government did not understand the political deepness of the problem and looked at this issue from the development aspect rather than the political aspect. As a consequence, Chittagong Hill Tracts Development Board (CHTDB) was set up under an army general in 1976 to retrieve the region from the years of neglect and underdevelopment (Rahman, 2009: 24). Later, in July of 1977, a Tribal Convention was formed to find a political solution to the problem which held talks with the tribal insurgents during 1977-78 (Shelly, 1992: 133). But these four discussions had a fruitless outcome.

The next government tried to find out a political solution in 1982 and formed a Liaison Committee headed by Mr. Upendra Lal Chakma. With the help of the Liaison Committee, the first dialogue between the government of Bangladesh and PCJSS held in 1985. As a result, two years of negotiation and talks between PCJSS and a National Committee (NC) was formed in 1987, headed by the then Planning Minister. The only outcome of the first dialogue was the recognition that the CHT problem was a political problem (Rahman, 2009). At the time of the second dialogue in 1987 with the government of Bangladesh, PCJSS put forward five-point demands. The remarkable portions of the five points are:

• Autonomy for CHT with its legislature and recognition of Jumma nation’s right of self-determination which included provincial status to CHT and naming CHT as Jummaland;
• Retention of the Regulation of 1900 and a constitutional provision for restricting amendment of this regulation;
• Removal of non-tribal who had entered the CHT since August 17, 1947;
• Creation of circumstances favorable for a peaceful and political resolution of the CHT problems; and
• Unconditional release of all Jumma people who were given punishment, under trial, and in the custody of armed forces.

These demands are for complete autonomy of CHT except control over all subjects except defense, foreign affairs, currency, and heavy industries. They also demanded the withdrawal of military camps from CHTs areas. Later, Upendra Lal Chakma presented seven-point demands, which may be considered complementary for the five-point demands of PCJSS. The government of Bangladesh did not accept these demands citing the reason for the Unitary Constitutional System of Bangladesh. The NC alternately presented a nine-point proposal to give out a solution to this unresolved problem. Some important points of this proposal were:

• Identification of CHT districts as a special area;
• Establishment of directly elected strong local bodies named ‘Zila Parishad’ in the three hill districts of Rangamati, Khagrachhari, and Bandarban;
• Division of subjects among national government, District Level and Local level government institutions;
• Re-delimitation of boundaries for the unification of boundaries of districts and Tribal Circles etc.

The outcome of this 9 point was remarkable in the solution process of the problem. A Memorandum of Understanding (MoU) was signed between NC and 48 tribal leaders of Rangamati, Khagrachhari, and Bandarban between August 29 and October 18 of 1988.

But the agreement was not acceptable to all tribes and leaders of ethnic minorities and in December 1988, PCJSS came out with a modified proposal for ‘regional autonomy’ in place of ‘provincial autonomy’. BCJSS could not accept the counter proposal and the proposed dialogue of February 1989 between NC and PCJSS could not be held in 1989. By this time, the government passed a bill to create three Hill District Local Government Council in February 1989. On 25 June 1989, the election to the LGCs held peacefully instead of resistance from ‘Shanti Bahini’ with torturing, killing, and terrorist activities in the bordering areas. This election weakened the support of PCJSS in their own people. But there was no more local government after the tenure of LGCs expired due to the opposition of Shanti Bahini proposed meeting between the NC and the PCJSS.

In 1990, the government has been changed and peace negotiations were re-initiated by the new government in 1991. The then government formed a Parliamentary Committee (PC) headed by the then Communication Minister in July 1992 to solve the problem through constitutional means. The regime also formed a parliamentary Sub-Committee (SC) led by a senior member of the Parliament. On November 5, 1992, the PC for the first time met with PCJSS led by Shantu Larma. Both parties reached an agreement of cease-fire which was extended routinely every three months rounds from August 1, 1992, until December 1997 (UNDP, 2005). In December 1992, at the time second round of talks with PC, the PCJSS revised its charter and modified its demands which consist of five points as follows:

• Regional autonomy for the CHT with a regional council recognized by the Constitution;
• Restoration of land rights to the tribal people with a ban on the allocation of land to the Bengalis from the plains;
• Withdrawal of the military from the CHT;
• Constitutional recognition of ethnic minorities and a guarantee that their rights would not be altered without their consent; and
• Withdrawal of Bengalis settled in the Hills since August 17, 1947.

PCJSS also demanded that the Constitutional change recognize the CHT as a special administrative unit with regional autonomy. The PC did not accept some of the demands, but the negotiations continued in the spirit of compromise and met with the Shanti Bahini seven times. PC made significant progress in political dialogue and confidence-building; some kind of mutual respect and understanding was seen to be developing from the process.

Again next new government installed in 1996, the newly-elected government set up a new National Committee (NC) on CHT in October 1996 to solve the long-lasting conflict, The then chief whip of Parliament nominated the convener of the NC. The first meeting between the 12 member committee and the PCJSS led by new leader J. B. Larma was held in December of that year and followed by subsequent meetings through December 1997. After the seven rounds of talks on December 2, 1997, the historic Peace Treaty namely CHT Peace Accord, was signed between the NC and the PCJSS with the presence of the then Prime Minister Sheikh Hasina, which ended twenty-two years old problem of misunderstanding and mistrust. This historical treaty consists of four main parts:

• Part A, namely “General”, recognizes the Chittagong Hill Tracts as a tribal inhabited region; forming of new rules and regulations according to law and establishment of an implementation committee to supervise the implementation of the Accord;
• Part B, under the heading “Chittagong Hill Tracts Local Government Council/CHT Zila Parishad”, deals with legal amendments of the Acts relating to CHT to strengthen the existing powers of the Zila Parishad and to extend their jurisdiction to include new subjects;
• Part C, titled “CHT regional Council”, includes the formation of a regional council in coordination with three LGCs, where chairperson and two-thirds of the seats are to be reserved for tribal people; and
• Part D, entitled “Rehabilitation, General amnesty, and other subjects”, addresses a wide range of issues, including the rehabilitation of the tribal refugees, granting of amnesty to the members of PCJSS, the establishment of the land commission for land settlement, etc.

After the agreement, a historic arms surrender was held on 19th February 1998. During the surrender ceremony, Shanti Bahini, mostly from the Hill Peoples’ Council (HPC), Hill Students’ Council (HSC), and Hill Women’s Federation (HWF), openly demonstrated their dissatisfaction with the Accord and declared that they would continue the struggle for ‘full autonomy’. They waved black flags in the stadium where the ceremony was being held, chanted slogans, and displayed banners denouncing the Peace Accord and the arms surrender (CHTC, 2000). On 26 December 1998, the Tribal activists who had declared they would continue the struggle for ‘full autonomy’ launched a new political party, the United Peoples’ Democratic Front (UPDF) (CHTC, 2000). They did so during a two days conference organized jointly by the HPC, HSC, and HWF, and attended by a few hundred ethnic minorities. Even before the Peace Accord was signed, The Hill Watch Human Rights Forum denied the agreement and concluded that whilst the key issues; i.e. regional autonomy, withdrawal of the military and the settlers, guaranteed land rights for the tribal and constitutional recognition of the Jumma (tribal) people remained unresolved peace could not be restored in the CHT, and that as long as the main demands of the Jumma peoples were unfulfilled, no agreement would be acceptable to them.

Again after a short period of the signing of the Accord, first, the HPC, HSC, and later HWF split in two, one faction supporting the PCJSS and the Peace Accord, the other declaring that the Accord was inadequate and that they would continue the struggle for ‘full autonomy’. The students’ faction supporting the PCJSS now calls itself the Greater Chittagong Hill Tracts Students’ Council (GCHTSC). After the formation of the UPDF, The Chittagong Hill Tracts Commission (CHTC) has received reports from both the JSS and the UPDF, accusing each other of attacks, death threats, kidnappings, killings.

SUMMARY *

The author reconstructs a negotiation history spanning a quarter century: from the four point demands of 1972 through the failed talks of the late 1970s, the five, seven and nine point proposals of the 1980s, the ceasefire and Parliamentary Committee dialogues of the 1990s, to the CHT Peace Accord of 1997 with its provisions on recognition, strengthened hill district councils, a Regional Council with reserved tribal majority and rehabilitation. Yet the paper shows that the Accord divided the hill peoples’ own movement: sections rejected it as inadequate, the UPDF was founded to pursue full autonomy, the organizations split into rival factions, and violence between them replaced violence with the state. In the author’s account, the core issues, land, demilitarization, the settler question and constitutional recognition, remained contested after the signing.

CONCLUSION

The problem of ethnic minorities is yet to resolve and their struggle is going on.

POTENTIAL SOLUTION *

The CHT case teaches a lesson that reaches far beyond Bangladesh: signing a peace accord and achieving peace are two different accomplishments. The 1997 Accord answered the question of what was agreed; the continuing struggle answers the question of what was implemented and who was included. A neutral path forward therefore concentrates on completing the Accord rather than renegotiating it, on four tracks.

First, implementation with a calendar and a witness. The Accord already contains its own supervisory body; what it lacks is binding sequence. A jointly agreed implementation roadmap, listing the outstanding items, transfer of subjects to the Hill District and Regional Councils, functioning of the Land Commission, phased adjustment of security presence as civilian policing capacity grows, with dates, published progress reports and an agreed neutral observer accepted by both government and hill representatives, converts a document into a process. Every completed step is evidence against the argument of those who rejected the Accord as empty.

Second, put land first, because land is the conflict. The Land Commission should be enabled to work through the backlog of disputes with procedures the hill peoples recognize as fair: customary land rights admitted as evidence, hill representation in decision making, and a survey conducted only after dispute resolution, not before. For settled plain land families, humane solutions, voluntary relocation with genuine compensation and alternative livelihoods outside the CHT, or regulated coexistence where communities themselves consent, avoid creating a new displacement injustice while addressing the original one.

Third, mediate inside the hill community. The most dangerous fault line today runs between PCJSS and UPDF. Quiet, sustained intra Jumma dialogue, facilitated by respected elders, religious figures and neutral third parties, aiming first at a mutual cessation of attacks and later at a common minimum platform toward the state, would end the fratricidal violence that weakens every hill demand and gives the outside world reason to delay.

Fourth, anchor recognition and trust. Constitutional or firm legal recognition of the identity of the hill peoples costs the unitary state nothing in territory and gains everything in loyalty, while joint institutions in daily life, mixed local development boards, bilingual education, shared management of forests and tourism revenue, let Bengali and Jumma neighbors experience the region as a shared home rather than a contested prize. An accord kept alive in this way can still become what its signing promised in 1997: the end, not merely the pause, of a long struggle.

* Added by the WMO Editorial Team

REFERENCES *

1. The Chittagong Hill Tracts Regulation, 1900 (Regulation I of 1900), and Act XXII of 1860 establishing the Chittagong Hill Tracts district.
2. The Chittagong Hill Tracts Peace Accord, signed between the National Committee on CHT Affairs and the Parbatya Chattagram Jana Sanghati Samiti, Dhaka, 2 December 1997.
3. Shelly, M. R. (Ed.) (1992). The Chittagong Hill Tracts of Bangladesh: The Untold Story. Centre for Development Research, Dhaka.
4. Rahman, M. (2009). Struggling Against Exclusion: Adibasi in Chittagong Hill Tracts, Bangladesh. Study on the CHT conflict and development, Dhaka.
5. Chittagong Hill Tracts Commission (2000). Life Is Not Ours: Land and Human Rights in the Chittagong Hill Tracts, Bangladesh. Update 4, Copenhagen and Amsterdam.
6. United Nations Development Programme (2005). The Chittagong Hill Tracts Development Facility: programme documentation on the CHT peace process, Dhaka.
7. Mohsin, A. (2003). The Chittagong Hill Tracts, Bangladesh: On the Difficult Road to Peace. Lynne Rienner Publishers, Boulder.
8. Roy, R. D. (2000). Land Rights of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh. IWGIA, Copenhagen.

A mediator’s mindfulness for dealing with conflict

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article explores the contribution of mindfulness to mediation and conflict management. Starting from the understanding of interpersonal conflict as an expressed struggle between interdependent parties pursuing incompatible goals, the author presents mediation as a skill based profession whose effectiveness can be undermined by deficiencies in awareness: self centered perspectives, strong negative emotions, automatic habitual reactions, insensitivity to emotions and inadequate concentration. Mindfulness, understood as deliberate, non judgmental attention to the present moment and rooted in Buddhist contemplative practice, is presented as a systematic method for overcoming these deficiencies. The author describes how mindfulness meditation deepens self awareness, weakens the grip of negative emotions, fosters compassion and other centered focus, and improves decision making in negotiation, and how mediators encourage reflective awareness in the parties through reframing, summarizing, narrative transformation and rhetorical questions. The paper concludes that the mindful mediator, working with openness and curiosity toward discomfort, anger and worry, is better equipped to guide parties toward cooperative, self determined and lasting solutions.

KEYWORDS *

Mindfulness, mediation, conflict management, interpersonal conflict, self awareness, non judgmental attention, emotions, reframing, mediator skills, meditation, compassion

INTRODUCTION

Our world is filled with many problems including a conflict that demand our attention and collaboration. Conflict, or more specifically, interpersonal conflict, is a fact of life, and particularly of organizational life. One of the most common difficulties is a conflict with friends and co-workers, with children or parents, with a spouse, with people who hold opinions different from each other. However, conflict can also arise in relationships and situations outside work. Interpersonal conflict has been defined as: “An expressed struggle between at least two interdependent parties who perceive incompatible goals, scarce resources, and interference from the other party in achieving their goals”.

The most widely accepted definition of conflict refers to conflict as the ‘pursuit of incompatible goals by individuals or groups. In other words, conflict situations arise when individuals or groups pursue positions, interests, needs, or values that may lead to actions that come up against the interests, needs, and values of others when they also want to satisfy their goals.

MAIN CORPUS

Third-party mediation is one of the alternates to resolve the conflict. The Mediation of Conflict brings two conflicting parties to the table, along with a professional mediator. Effective regulation of conflict requires a skill to resolve the conflict. The mediators having empathy and understanding can start to take on a more compassionate approach to conflict and get less involved with the emotions that surround it, working through the essential questions instead. The job of mediation requires knowledge, skills, and dedication to resolve the dispute. Accordingly, mediation is founded upon a dynamic set of professional skills. It can teach, develop and maintain the habits of practice to be a successful mediator or conflict resolvers.

The mediator might often face difficult settings and might be unable to appropriately use the knowledge and skills because of certain deficiencies in awareness, such as an excessively self-centered perspective; strong negative emotions; automatic, habitual ways of thinking, feeling, and behaving; insensitivity to emotions; insufficient social skills; and inadequate focus or concentration. Mindfulness can help people overcome such deficiencies in awareness. However, mindfulness is difficult to establish and maintain, in the face of those very obstacles, especially in proximity to the heated conflict.

Mediators “…seek to enhance their ability to be dispute resolvers by moving beyond knowledge and skills to deeper levels of engagement in their work” (Bowling and Hoffman, 2003). The primary step to being a mediator is to give due mindful attention to the problem. Mindfulness can be considered a valuable contributor to this process (Roeser et al., 2012).

The application of mindfulness to reconciliation and conflict management requires identifying and handle strong emotions, develop effective communication tools that help navigate conflict and integrate mindfulness into your interpersonal relationships, etc. Mindfulness is a conscious awareness of the present moment. Being mindful is to live in the present moment with regard to our sensations, feelings, thoughts, and actions. It brings about self-responsibility.

Mindfulness derives from ancient Buddhist philosophy, psychology, ethics, and is related to meditative practices. The word “mindfulness” carries many meanings. In common parlance, to be mindful means to be “conscious or aware of something”. Practicing mindfulness can help a person achieve these insights, that is, to see things as they actually are. Mindfulness, is a systematic method of paying attention, deliberately, at the moment, without judgment, can help us gain awareness of our mental and emotional processes, our habitual reactions, and their manifestations in our mind, body, and breath. Such self-awareness opens the door to developing ourselves in ways that will enable us to be more skillful and to get greater satisfaction from our work and our lives.

The principal method for cultivating mindfulness is practicing silent mindfulness meditation processes such as meditation etc and then deliberately bringing mindfulness into daily life. The basics of mindfulness meditation, a systematic method of moment-to-moment non-judgmental awareness, which develops both calmnesses of mind and body and deep insight into the workings of our minds and hearts, deepen self-awareness and be kinder to practitioners and others.

Mindfulness decreases the prominence of self-centered focus and fosters the strength of other-centered focus. It reduces the power of strong negative emotions. It promotes freedom from automatic, habitual ways of thinking, feeling, and behaving. It fosters sensitivity to the emotions of self and others. It improves social skills and strengthens both forms of attention and non-judgmental awareness. Mindfulness can foster understanding of and compassion for others. It can help to understand compassion for others. It recognizes interconnectedness, supports us to enter inside to know about how our minds work. It enhances the ability to notice and let go of self-cantered, perceptions, and intentions about self and others. Mindfulness is a certain way of paying attention – can help overcome these obstacles and improve decision-making in negotiations and other conflict-related situations.

But mindfulness is difficult to establish and maintain, especially in proximity to the conflict. Mediators adopt various means to encourage mindfulness in the conflicting parties. These are- reframing, summarising, transforming of narrative, rhetorical questions are all intended to encourage reflection, offer a different perspective, and foster insight and self-awareness. The practice of mindful conflict management allows paying attention to the present moment in conflict, recognizing own conflict pattern, behavior, and conflict response with an attitude of openness and non-judgment. It helps the mediator for automatic response with an attitude of curiosity towards his / her perceptions and then working more skilfully with discomfort, frustration, anger, and worry, emotions that automatically occur when the mediator doesn’t feel comfortable in conflict.

SUMMARY

Mediation is a viable way to solve disputes by allowing the parties to make the decisions about their issues rather than the court making the decisions. An unresolved conflict or interpersonal disagreement festers just under the surface in your work environment. It bubbles to the surface whenever enabled, and always at the worst possible moment.

CONCLUSION

Mediating a conflict is challenging. Resolving conflict can be viewed as a form of collaborative, creative problem-solving. The objective is a good quality solution with disputants’ commitment to implementing the solution. It creates disputants’ perceptions that the solution and the process are fair. It uses disputants’ sense of empowerment to resolve the current and future conflicts with efficient use of time. Mindfulness of mediator in resolving the dispute displayed in mental, behavioral, and physical exercise is a powerful tool that can help us respond to conflict in a cooperative and non-reactive manner in a win-win situation.

POTENTIAL SOLUTION *

The conflict this article addresses is not between two named parties but inside the mediator and inside every person who meets conflict: the struggle between automatic reactivity and aware response. The practical question is therefore how mindfulness can move from an admired idea to a reliable working instrument of the mediation profession. Four steps make that transition concrete.

First, anchor mindfulness in mediator formation rather than in occasional seminars. A deficiency in awareness cannot be corrected by information about awareness. Training programs should therefore include a sustained practice component, daily short sitting practice over the length of the course, supervised reflection on one’s own conflict patterns, and exercises in observing body signals under simulated pressure. The goal is modest and measurable: that the mediator notices the arising of irritation, partiality or fear a moment before acting on it. That single moment of noticing is the entire professional yield of the practice.

Second, build micro practices into the mediation process itself. A brief silent pause before the session, a conscious breath before responding to an attack, a short break explicitly framed as time to reflect rather than as escalation control, give both mediator and parties structured access to the present moment. These interventions require no philosophical framing and impose no worldview on the parties; they are simply process hygiene, and they remain fully compatible with any religious or secular background the participants bring.

Third, use the mediator’s own reactions as information. When discomfort, frustration or worry arises in the mediator, mindfulness converts these from disturbances into data: something in the room is unspoken, unsafe or unripe. The trained response is curiosity, naming the atmosphere, slowing the pace, returning to the parties’ underlying needs, rather than suppression or forced progress. In this way the mediator’s inner state becomes an instrument of diagnosis in service of the parties.

Fourth, protect the boundary between awareness and instruction. Mindfulness in mediation is an inner discipline of the mediator and an optional offer to the parties, never a doctrine to be taught at the table and never a substitute for procedural fairness. A party who declines every reflective exercise retains full standing in the process. Held within that boundary, mindful mediation delivers exactly what this article promises: a mediator who is present, non reactive and genuinely available, and parties who are met with the clarity and calm in which their own solutions can appear.

* Added by the WMO Editorial Team

REFERENCES *

1. Bowling, D., & Hoffman, D. (Eds.) (2003). Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution. Jossey Bass, San Francisco.
2. Roeser, R. W., Skinner, E., Beers, J., & Jennings, P. A. (2012). Mindfulness Training and Teachers’ Professional Development: An Emerging Area of Research and Practice. Child Development Perspectives, 6(2), 167 to 173.
3. Kabat Zinn, J. (1994). Wherever You Go, There You Are: Mindfulness Meditation in Everyday Life. Hyperion, New York.
4. Riskin, L. L. (2002). The Contemplative Lawyer: On the Potential Contributions of Mindfulness Meditation to Law Students, Lawyers, and their Clients. Harvard Negotiation Law Review, 7, 1 to 66.
5. Riskin, L. L. (2004). Mindfulness: Foundational Training for Dispute Resolution. Journal of Legal Education, 54(1), 79 to 90.
6. Wilmot, W. W., & Hocker, J. L. (2011). Interpersonal Conflict (8th edition). McGraw Hill, New York (source of the definition of interpersonal conflict quoted in the article).
7. Fisher, R., Ury, W., & Patton, B. (2011). Getting to Yes: Negotiating Agreement Without Giving In (3rd edition). Penguin Books, New York.
8. Goleman, D. (2006). Social Intelligence: The New Science of Human Relationships. Bantam Books, New York.