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.