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 fundamental principles of mediation and illustrates them through a historical case. The author begins by defining mediation as an extension of negotiation conducted by a third party without authority to impose an outcome, and argues that the absence of decision making power is precisely what makes the process attractive to disputing parties. The authority mediators do possess is located instead in personal credibility, procedural expertise, experience and reputation. Neutrality, impartiality and confidentiality are presented as the three principles governing every mediation regardless of the parties or the subject matter, together with the obligation to disclose any relationship that might raise doubts about impartiality. The article then applies the distinction between positions and interests to the negotiations at Camp David in 1978, where incompatible claims to the Sinai were resolved once the underlying interests, Israeli security and Egyptian sovereignty, were addressed rather than the positions expressing them.
KEYWORDS *
Mediation principles, neutrality, impartiality, confidentiality, mediator authority, interests and positions, wise agreement, disclosure, Camp David 1978, Sinai, negotiation, process facilitation
INTRODUCTION
Mediation is defined as a conflict resolution process in which a mutually acceptable third party, who has no authority to make binding decisions for disputants, intervenes in a conflict or dispute to assist involved parties to improve their relationships. The procedure followed is an extension of the negotiations. Hence, mediation is commonly initiated when the disputing parties on their own are not able to start productive talks or have begun discussions and reached an impasse. The fact that mediators do not have decision–making authority, presents mediation much more attractive to many parties in dispute because they retain ultimate control of the outcome.
However, mediators are not without authority. The Mediator’s authority resides in his or her personality, personal credibility and trustworthiness, expertise in enhancing the negotiation process, experience in handling similar issues, ability to bring parties together on the basis of their own interests, past performance, or reputation as a resource person, and (in some cultures) his or her relationship with the parties.
MAIN CORPUS
Although, the first thing that young candidates mediators are taught during the education process is that mediation “is not a science but an art” based on both individual physical talents, tasks, and well-known techniques, which are being supported by different sciences, the main and fundamental core in Mediation remains its principles.
Each mediator, in order to be successful, has to follow the same fundamental principles for each and every mediation procedure, even if the conflict is between a fisherman and a ship-owner, even if the conflict is between a shepherd and a businessman buying wholesale shepherd’s products. Moreover, even if the participants are citizens or states.
Neutrality, impartiality and confidentiality are the three fundamental principles followed in a Mediation procedure.
Neutrality is derived from the Latin “neuter”, meaning “neither of them”, a condition in which attitude and action reflect a refusal to take sides in a dispute. When claiming neutrality towards the parties and impartiality towards issues, the mediator should disclose any relationship with or more disputants that might bias his or her behavior or raise a question in the minds of the disputants as to whether the mediator can remain impartial while assisting in discussions of the issues at hand.
His main concern has to be the achievement of a successful mediation procedure. And in order to be successful such a procedure should produce a wise agreement (if an agreement is possible), should be efficient, and should improve or at least not damage the relationship between the parties. The achievement of a wise agreement means that the agreement meets the legitimate interests of each side to the extended ones, resolves conflicting interests fairly, is durable and finally, it takes community interests into account.
For a wise solution, the mediator has to reconcile interests, not positions. And the main reason for that is that interests define the problem. The basic problem usually lies not in conflicting positions, but in the conflict between each side’s needs, desires, concerns, and fears. The Egyptian-Israeli peace treaty blocked out at the Camp David summit in 1978 demonstrates the usefulness of looking behind positions.
Israel had occupied the Egyptian Sinai Peninsula since the six-day War of 1967. When Egypt and Israel sat down together in 1978 to negotiate for a peace process, their positions were incompatible. Israel insisted on keeping some part of the Sinai. Israel, on the other hand, insisted that every inch of the Sinai has to be returned to Egyptian sovereignty.
Maps with possible boundary lines that would divide the Sinai between Egypt and Israel had been presented to both parties but compromising through this way was wholly unacceptable to Egypt and respectively unacceptable to Israel since the proposed compromise referred to the situation as it prevailed in 1967. Looking to their interests though, instead of their positions, making it much more possible to develop a solution. Israel’s interest lays in security while Egypt’s interest lays in sovereignty.
Finally, at Camp David in 1978, President Sadat of Egypt and Prime Minister of Israel agreed to a plan that would return the Sinai to complete Egyptian sovereignty and by demilitarizing large areas would still assure Israeli security. The Egyptian flag would fly everywhere, but Egyptian tanks would be nowhere near Israel territory.
SUMMARY *
The article’s argument rests on a single relationship. Because the mediator holds no power to decide, the parties retain control of the outcome, and it is that retention which makes the process acceptable to them. From this the author derives both the source of the mediator’s actual authority, which is personal and procedural rather than formal, and the discipline required to preserve it, expressed in the principles of neutrality, impartiality, confidentiality and disclosure. The Camp David example is offered as evidence that the same method applies at every scale: what appeared to be an indivisible dispute over territory became soluble once the needs beneath the stated demands were identified.
CONCLUSION
This case between states and its final resolution is absolutely representative in proving that reconciling interests rather than positions works for two reasons. Firstly because for every interest there are usually several possible positions, which exist and could satisfy it, and secondly because reconciling interests rather than compromising positions give the mediator the great opportunity to see much more interests than conflicting ones. Mediator has no authority for the final agreement or not of the parties. His authority always remains the accurate management and overall facilitation of the discussions between the parties and the institutional achievement of a principled Mediation procedure.
POTENTIAL SOLUTION *
The principles set out here are sound, and what they most need is the translation from statement to practice, since each of them is easy to affirm and demanding to apply.
Take disclosure, which the article rightly emphasises. The rule is clear enough in the abstract but the difficulty lies at the margins: a mediator who once worked with one party’s lawyer, who belongs to the same professional association as an executive, who has written publicly on the subject in dispute. The workable standard is not whether the mediator feels compromised but whether a reasonable party, learning of the connection later, would feel misled. Applied that way, disclosure covers far more than it first appears, and the practical rule is to disclose whatever one would rather not mention.
Neutrality itself deserves a qualification that strengthens rather than weakens the article’s case. Contemporary practice increasingly distinguishes between neutrality, understood as having no prior relationship with the parties, and impartiality, understood as conducting the process without favour. The first is frequently unattainable and in some settings undesirable, since the insider mediator who is trusted precisely because they belong to the community is often the only one who can act at all. The second is achievable in every case and is what the parties actually require. Framing the obligation as impartiality in conduct, sustained by disclosure and by continual self examination, is more honest than a claim of neutrality that no practitioner fully meets.
Confidentiality, which the article names but does not develop, carries the same structure: a firm principle with defined limits that must be stated at the outset rather than discovered later. Where a mediator learns of a threat to a person’s safety, of harm to a child, or of matters a court may compel them to disclose, the confidentiality promised at the start must already have contained those exceptions. A protection explained honestly at the beginning is worth more than an absolute one that fails when tested.
On interests and positions, the article’s central technique, one addition matters. Interests are not always available for reframing. Where what is at stake is recognition, identity, or the acknowledgment of a wrong, the parties are not describing a want that a clever formula can satisfy, and treating such claims as negotiable interests is heard as dismissal. The Camp David case is instructive partly because it was tractable: security and sovereignty could be delivered simultaneously through demilitarisation. Where the same technique is applied to Jerusalem, or to the fate of the missing in any conflict, it does not work in the same way, and knowing which kind of question is in front of you is among the more valuable judgments a mediator makes.
Finally, the article’s claim that the same principles govern a dispute between two individuals and one between two states is correct in substance and worth qualifying in application. What scales is the discipline; what does not scale is the setting. Negotiators representing states answer to constituencies, cabinets and publics, which means the person in the room may agree to something their capital will not ratify. The mediator’s task there includes attention to what each delegation can actually deliver, which is a question that rarely arises between a fisherman and a ship owner.
* Added by the WMO Editorial Team
REFERENCES *
- Moore, C. W. (2014). The Mediation Process: Practical Strategies for Resolving Conflict (4th edition). Jossey Bass, San Francisco.
- Fisher, R., Ury, W., & Patton, B. (2011). Getting to Yes: Negotiating Agreement Without Giving In (3rd edition). Penguin Books, New York (on interests, positions and the Sinai example).
- Camp David Accords: Framework for Peace in the Middle East and Framework for the Conclusion of a Peace Treaty between Egypt and Israel, 17 September 1978.
- Treaty of Peace between the Arab Republic of Egypt and the State of Israel, Washington, 26 March 1979, and its annexes on security arrangements in Sinai.
- Model Standards of Conduct for Mediators (2005), American Arbitration Association, American Bar Association and Association for Conflict Resolution.
- European Code of Conduct for Mediators (2004), European Commission, Brussels.
- Directive 2008/52/EC of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters, Article 7 on confidentiality.
- Astor, H. (2007). Mediator Neutrality: Making Sense of Theory and Practice. Social and Legal Studies, 16(2), 221 to 239.
- Wehr, P., & Lederach, J. P. (1991). Mediating Conflict in Central America. Journal of Peace Research, 28(1), 85 to 98 (on the insider partial mediator).
- Quandt, W. B. (2016). Camp David: Peacemaking and Politics. Brookings Institution Press, Washington, D.C.
