News 2008


Mediation: The minimum standards

Saturday Nation


16. 02. 2008

The other day I asked a couple of people about Ralph Bunche and they confidently said it is a road somewhere in Nairobi. Virtually everyone I talked with knew nothing about this great African-American, yet he was once chief of the UN mission in Palestine and indeed the first non-white to be awarded the Nobel Peace Prize in 1950 for his efforts as mediator between Arabs and Jews in the Israel-Arab war of 1948-49.

Together with Count Bernadotte, whom he succeeded, these men were the pioneer mediators of post-World War II in the conflicts of the Middle East.

Although Bunche’s efforts took place nearly 50 years ago in a faraway place, it draws close parallels with the ongoing mediation talks in Kenya, led by former UN boss Kofi Annan.

As we await the outcome, it is important for us to understand the process and its qualities. Basically, mediation is a process in which a neutral party helps to resolve a dispute between two or more protagonists.

For centuries across the continents, village elders, tribal councils, religious leaders and the like have been used in this process.

In Asia, for example, Buddhist traditions encouraged dispute resolution through compromise rather than coercion.

Confucius, the Chinese thinker and social philosopher, believed that the best way to resolve a dispute was through moral persuasion and agreement rather than coercion.

In the traditional African setting, extended family systems enabled any party in a dispute to call for an informal neighbourhood assembly where a respected member of the community would serve as a mediator and help parties resolve their conflict.

In the US, mediation historians often note that President George Washington put an arbitration clause in his will to resolve disputes among his heirs, and Abraham Lincoln is acknowledged to, as a young lawyer, have arbitrated a boundary dispute between two farmers.

The current mediation in Kenya is, therefore, the product of a process that has evolved over time. It has cemented certain minimum standards that must be maintained for the process to produce meaningful and acceptable results.

For Annan and his team to succeed, some important aspects of mediation must be observed. A leading one is the choice and role of the mediator. Mediators must be acceptable to all parties in a dispute.

This is evident in the current mediation process with Mr Annan, the official African Union-appointed chief mediator and leader of his team of eminent African persons, being accepted by the protagonists — PNU and ODM.

So crucial is the acceptance aspect that when South African Cyril Ramaphosa was invited by Mr Annan to join the talks, the government side rejected him on the ground that he had business links with ODM leader Raila Odinga, and so would not be impartial.

Mr Ramaphosa, a lawyer, is a tough negotiator and a skilful strategist who played a key role in negotiating the end of apartheid in the early 1990s, and thereafter attained international recognition when he was called to mediate the peace process in strife-torn Northern Ireland.

His rejection was reminiscent of President Thabo Mbeki’s rejection in September 2006 by rebels in Cote d’Ivoire.

President Mbeki was the AU mediator, but the rebels refused to recognise him and asked for his replacement, arguing that he was trying to monopolise the Ivorian conflict and without following the rules.

Another important aspect that came into sharp focus earlier this week is the fact that a mediator must be impartial, neutral and balanced.

He must equally help each party and never favour one at the expense of the other.

The mediator should never favour a particular result, but should ensure the parties reach agreements in a voluntarily and informed manner and not as a result of coercion or intimidation. Mr Annan and his team have so far been viewed as such.

However, this does not mean that a mediator cannot provide ideas. Indeed, he can make suggestions or tender to the parties’ formal proposals for settlement. This is what happened on Tuesday when Mr Annan, as he addressed an informal session of Parliament, suggested a coalition government as an open option.

His statement drew swift reaction from the government side with Justice minister Martha Karua saying that a coalition government had been neither discussed nor agreed upon.

Mr Annan is reported to have stated that the dialogue team had agreed to have a transitional government for two years and then hold elections.

The position has since been clarified, with Mr Annan saying that the statement was his “perspective on the discussions, and did not imply a formal agreement between the Government and ODM”.

The bottom line is that the Annan team must remain principally a “process person,” helping the parties define the agenda, focus on the real issues, establish a common ground, negotiate fairly and hopefully reach an agreement. A mediator can never force an outcome and can only help the parties to develop a solution themselves.

While the issue of the mediator’s neutrality is seen as crucial in mediation it is difficult to perceive it.

Some observers argue that it is impossible for any human being to be truly neutral, while others opt for the positive side of a biased mediator, saying he is useful as long as the bias is not hidden from any party and the parties have the opportunity to protect themselves against its effects.

In 1949, Bunche, for obvious reasons, openly declared his bias at some point in the mediation, saying: “I have a bias in favour of both Arabs and Jews in the sense that I believe that both are good, honourable and essentially peace-loving peoples, and are therefore as capable of making peace as of waging war... ”

Another important aspect that the Annan team must respect is the voluntary and collaborative nature of mediation.

Any of the participants, including Mr Annan and his team, must have the freedom to choose to stay in the mediation or to leave at any time and for any or no reason.

This should, however, not be confused with sabotaging the process in that where a party leaves, another can always be appointed. Parties must then work together to solve the issues that are the subject of the mediation and to reach their best agreement.

The team must collaborate for the process to be fruitful, and if one side does not agree with the outcome, there cannot be a mediated settlement.

Questions have been raised on whether Mr Annan’s mediation is being controlled by the parties and or it is confidential. This is largely based on the numerous statements and warnings of “dire consequences” by foreign countries should the parties not come out with a solution.

This does not augur well for the principle that parties to mediation must have the complete decision-making power — to veto each and every provision of any agreement. Put differently, nothing can be imposed on the parties.

While failing to agree is every Kenyan’s fear, the parties must be left alone to deliberate without interference. The retreat at Kilaguni Lodge was indeed a step in the right direction.

As regards confidentiality, the general rule is that besides the final agreement, discussions and all materials developed are privileged.

However, the parties are free to limit the application of this general rule since confidentiality is based on the extent desired and agreed upon by the parties.

The mediation team seems well informed as they have allowed themselves to benefit from, and incorporated, legal experts.