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Mediation: The minimum standards
Saturday Nation
Story by GITAU GIKONYO
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.
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