Mediation

This article has been written by Darshee Madhukallya pursuing the Diploma in Law Firm Practice: Research, Drafting, Briefing and Client Management from LawSikho. This article has been edited by Tanmaya Sharma (Associate, Lawsikho) and  Ruchika Mohapatra (Associate, Lawsikho). 

Introduction

“An ounce of mediation is worth a pound of arbitration and a ton of litigation!”- Joseph Grynbaum Joseph Grynbaum’s statement is not only theoretical but also practical when seeing the actual international and national diaspora. During the Cold War period, countries adopted armed force, military force, defensive alliances, diplomacy to solve disputes. Although Negotiation was adopted, it was to maintain nuclear balance only. It was implemented to solve the Cuban Missile Crisis. Between 2011 to 2015 the fatalities in conflict increased by sixfold. 2014 witnessed the Rwandan genocide and was the deadliest year since the end of the cold war.  There are various ways of dealing with and managing international conflicts including avoidance, withdrawal, bilateral negotiation, third-party intervention, war, etc. Today we can see that; mediation, as a form of dispute resolution mechanism at the international platform, has gained quite importance. 174 countries have adopted provisions for resolving their disputes through a more peaceful method. The main reason behind this shift is to end all forms of violent measures. In the 2016 General Assembly, the Secretary-General submitted a report at the 72nd session on the United Nations highlighting activities supporting mediation as a peaceful medium for settlement of disputes, conflict prevention and resolution. The report also provided five broad elements to facilitate a mediation process. These included an enabling environment, design of a mediation strategy and process, effective operations, implementation and building capacities. 

Countries have approached this medium to solve their interstate conflicts. In this 21st century, mediation is the closest thing that has an effective technique for dealing with conflicts in a peaceful manner. This can be seen from the various instances where one country has come forward as a mediator in solving the conflicts between any other two countries. As per the 2006 “Mediation Style and Crisis Outcome” study, it was found out that between 1918 and 2001, around 128 crises have been solved through mediation.

Mediation can be both at the domestic and international levels and this article will solely discuss the role of mediation in solving disputes at the international platform. This article will deal with different facets of mediation, important landmark cases, global outlook and how mediation can be implemented as a dispute resolution tool. Most primarily it will discuss the role of mediator and the various mediation strategies and why the countries have shifted to mediation? Moreover, it will be an insightful article to go through. 

What is mediation?

In simple terms, mediation is a dispute resolution process that involves solving conflicting situations between parties in a peaceful manner by a mediator. Sacvan Bercovitch defines mediation as “a process of conflict management, related to but distinct from the parties’ negotiations, where those in conflict seek the assistance of, or accept an offer of help from, an outsider (whether an individual, an organization, a group, or a state) to change their perceptions or behaviour, and do so without resorting to physical force or invoking the authority of law.” This definition included in a broader sense almost every aspect of mediation. As per the definition of Black’s Law Dictionary, mediation is, “a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution”. The mediation process provides a way for countries to resolve their disagreements before resorting to violence. Although the concept of mediation has gained momentum in the latter half of the 20th century, however, it can be traced back to earlier times. In international history, there have been many landmarks’ events of mediation by different countries. Mediation existed though not in a full-fledged manner, but to a certain extent. In the year 1899, the Hague Convention and 1907 League of Nations Covenant took steps towards Mediation. In the year 1948, the United Nations General Assembly (UNGA) appointed a mediator to solve the dispute in the Palestine region. In 1949, to conclude armistice agreements, a mediator was appointed between Israel and the four other Arabs countries to solve their dispute.

Importance and advantages of mediation

Mediation is a very handy alternative for solving disputes. It is beneficial in cases where the parties want to maintain a cordial relationship even after the dispute. It involves a short span of time thereby reducing tension, cost and time. One another big advantage of mediation is that the decision of the mediator is non-binding. It tries to resolve the dispute by assisting the parties in finding amicable settlement options. It encourages the individuals by empowering them to maintain control in solving their disputes. It helps the parties in keeping their affairs private as it maintains confidentiality between the parties and provides for an amicable resolution. Conflicts are settled faster than they are resolved by litigation. In today’s time where time is more valuable than money, preferring mediation would save time. In mediation, it is the parties who decide for themselves on their terms and conditions and reach a conclusion. Also, in mediation, there are no complex rules of procedure and evidence. This allows the parties to have flexibility and adjustment in the discussion. Another reason that countries today have opted for mediation to solve disputes is because of the omnipresence of media. Media has played a crucial role in instigating political debates, cresting censorships and controversies and making the business of each nation very transparent, due to this the countries have opted for mediation in order to preserve their privacy. 

As would be discussed in the latter part of the article, a mediation process involves certain systematic steps like introduction, statement of facts, identifying issues and interests, finding alternative solutions based on types of conflict to be solved and finally reaching an agreement. It is due to such advantages that today the relevance of mediation is highly seen. Since the disputes at international forums involve different countries, there is a requirement for a uniform system and governing laws to mediate the dispute. Hence mediation fits the requirement.

What is international dispute?

In layman language, International Disputes refers to disputes and conflicts involving different countries. The United Nations Security Council (UNSC) defines “International Disputes” as a conflict of legal dispute. It refers to any disagreements between nations on any fact, issue, interest or any subject matter in the political, ideological or legal arena.  

Types of international dispute

International disputes or conflicting situations between nations/states/countries can be due to various reasons. It might be related to territory, ideology, security, independence, ethnicity, culture, resources, refugee issue, border disputes, war, biological war, etc. Several sensitive refugee issues have arisen in different countries like the Bangladesh refugee crisis, the crisis over the Rohingya Muslims, etc. The nations try to resolve such disputes by mediation to shorten the process of dispute resolution. Here in solving the disputes regarding the Rohingya Muslims between Bangladesh and Myanmar, the Chinese Government has served as the mediator. Border disputes also have been one of the challenging disputes in the international arena. It can be aerial, marine or on land. It arises between countries due to various reasons like occupancy, infiltration, smuggling, espionage, etc.

How are disputes solved at the international level?

It is the International Law that prevails at the international level. Mainly there are two main methods of solving disputes. One is the peaceful means including negotiation, inquiry, good offices, mediation, conciliation and arbitration as mentioned under Chapter VI of the United Nations charter and the other is the compulsive means including complaints, restoration, reprisal, hostile embargo, blockade, intervention, war. International law aims at finding a peaceful solution to the disagreement/disputes between nations. As per the 1970 “Declaration of Principles of International Law”, the states should solve their international disputes by negotiation, enquiry, mediation, conciliation, arbitration and judicial settlement. In an international platform, mediation is useful when a conflict has continued for some time but the parties have not reached any resolution and are also not prepared to incur further costs or escalation of the dispute or to engage in direct or indirect dialogue and what they require is external conflict management.

International Dispute Resolution Centers

Today, at the international level, different dispute resolution centres have come upon. There is the Singapore Mediation Convention to resolve commercial international disputes. In 2018, the International Centre for Settlement of Investment Disputes (ICSID) has set mediation rules to modernize the rules for resolving investment disputes. This has also organized a series of events on investment mediation to increase knowledge about investor-state mediation. There are other centres like the London Court of International Arbitration (LCIA), Chartered Institute of Arbitrators (CIArb), World Intellectual Property Organization (WIPO), Arbitration and Mediation Centre (AMC), American Arbitration Association (AAA), Hong Kong Mediation Centre, Indian Institute of Arbitration and Mediation, Japan International mediation centre, etc. that deals with mediation provisions and laws.

How does mediation play an effective role in settling international disputes?

Be it domestic or international, mediation consists of four main segments. It includes mediators, disputants, disputes and outcomes. Meditation is a process of resolving disputes that is generally ideal for those nations having different backgrounds, different cultures and different languages as it might lead to great misunderstanding. There are three main factors that play a crucial function in enhancing the role of mediation in the complete process. It comprises the role played by the mediator, the strategies and stages involved in the process and the nature of the parties in the conflict.

Mediator’s role

The mediation process starts with the appointment of a mediator. Mediators are also known as the “Third Party”. Mediators can be individuals (2.3%), states (49.8%), regional organizations (19.5%), or international organizations (28.4%). After the Cold War, the UN has actively participated in dispute resolution in Afghanistan, Bosnia, Cambodia, East Timor, Somalia, Liberia, Rwanda and Angola. Also, regional organizations like the African Union (AU), the European Union (EU), and the Arab League have also acted as mediators. The mediator that the parties are assigned with is a neutral person and is mutually selected by them. He has to be equally trusted by both parties. The mediators should possess the required skill and intelligence, to tackle the conflict at hand. In this process, the mediator’s job is not to judge. The mediator must be consistent, transparent and even-handed in managing the mediation process and should respect the confidentiality of the parties. The determining factor includes parties’ consent to mediation, military or political interest or goals, ideological and psychological considerations, or actions of external players, etc. 

In any international dispute, solving it is 50% based on the role played by the mediator. If the mediator succeeds then the whole mediation process gives fruitful results. The mediator must choose the strategies very strategically. The mediator should not be biased. Partiality can lead to complex effects. In some cases, more than one mediator mediates the conflict. This might hinder as well as contribute to peacemaking. This was seen in one of the disputes where the European Union (EU), the United States (US) and the United Nations (UN) worked feverishly to foster peace in Yugoslavia which resulted in the Dayton Accords. It is also important to analyze the different mediation dynamics, identifying the dispute’s type, the background of the issues, etc. before proceeding.  Mediators working conduct should adhere to the mandates and the set rules and regulations. The UN mediators work within the framework and abide by the guidelines of the United Nations Charter. They also work according to the applicability of the framework constituted by the rules of the governing international law in the situation, international humanitarian law, human rights law, refugee laws, global and regional conventions, and international criminal law, etc. To follow a legal and procedural method, it is important that the process complies with the normative and legal frameworks. They need to ensure that the parties understand and are aware of it. For instance, if a party demands war, crimes against humanity, genocide, or gross violations of human rights, including sexual and gender-based violence; treason or rebellion then it violates international principles. Also because of emotional and behavioural factors, having a female mediator in the mediation process helps in the success rate to some extent as per some studies. 

Mediation strategy

The role of mediation in solving international conflict would be successful if there are credible mediation efforts. This would allow the mediator to monitor as well as guide the mediation process, helping in strengthening the negotiating capacity of the parties and other stakeholders involved, assisting them in reaching agreements, and stirring support for implementation. 

The mediators’ strategies are based on the context of the conflict, willingness of the parties to find a solution, countries involved, etc. Also, the previous relationships between the mediator and the parties play a part in the process. If the mediators belong to the same organization or alliance then the degree of trust in each other would be high. Evaluative and facilitative are two different approaches to mediation. In evaluative mediation, the mediator provides each party with an assessment of the strengths and weaknesses of its position and in facilitative mediation, it is the parties that offer and counter-offer and discusses the potential expense and risk. 

There are also three general approaches. In the power-based approach, the parties opt for war as means of solving their conflicts. In the rights-based approach, certain standards are followed to conclude. Mediation falls in the third category i.e., an interest-based approach where parties reconcile their underlying interests. They attempt to bridge their different needs, aspirations, fears or concerns in a manner that is satisfactory to both. 

A mediation process usually goes through three phases. In the introduction phase, the mediator and the parties lay ground rules of the process and the parties lay down their demands and perspective. In the second stage, the mediator and the involved parties discuss the problem in-depth and try to find a solution for the same. Then there is the third closing stage where the parties decide on a resolution, agree to it and a resolution for the same is drafted mentioning the outcomes of the mediation. 

A mediator in the mediation process follows certain strategies. The first and foremost is the Communication- Facilitation Strategy where the parties together start the communication. The mediator tries to gain trust and confidence and understand the facts and identify the issues to create a suitable environment and interests for the parties and provide them with information. Proper communication can be a key to conflict resolution. This was seen in the Oslo agreement between Israel and the PLO where Norway played a major role.  The second strategy is the Procedural Formulation Strategy which deals in deciding key decisions like agenda structure, venue of the discussion, and further enhancing the communication process. It also involves establishing protocols, suggesting procedures, highlighting common interests, interactions with the media, and keeping the process focused on issues. It was seen in the New Zealand mediations of the Bougainville conflict in 1995. The third is the Directive Strategies. It is the most important phase where the mediator tries changing the parties’ expectations, making suggestions and proposals, supplying information, making them aware of costs involved, helping devise a framework for acceptable outcomes, pressing the parties to show variability, changing perceptions, etc. It provides for a systematic application of the possible resolution and empirical analysis of mediation in solving international conflicts. The application of this strategy was seen in the Camp David Peace Accords where President Carter provided a billion-dollar aid guarantee to Israel and Egypt as part of the agreement that lasted over 30 years.  

The mediator also uses a preventive diplomacy strategy. It helps the mediator to avoid any sort of conflict arising between disputants and also to prevent the occurrence of fights. This strategy was very handy during the China trade war, the Russia-United States disputes and the North Korea- United States conflict. As per a study by Bercovitch (who introduced this strategy) and Houston in the early 20th century, they found out that it is the directive strategies that are highly effective in settling international disputes. It can persuade the disputants to agree to an outcome. In the apolitical strategy, non-profit and private organizations like the International Crisis Group participate in the resolution of international conflicts through analyzing, researching, and advocating for conflict resolution. National ownership can be adopted after closely consulting with the parties where local cultures and norms are adapted along with international law and normative frameworks. Parties must be sensitized on the need to balance national ownership with the importance of marshalling international support for the implementation of an agreement in the resolving process. 

Conduct of the parties 

The parties that have opted for mediation are known as disputants. Minimum two parties are involved. It can be either two states or one state and another organization and such. The disputants are from Central and South America; Africa; South West and East Asia; and the Pacific, Middle East and Europe. International disputes can be on various matters. Over 47% of the interstate disputes mediated are in the highest category of fatalities. The composition of the disputes is: territory (27.5%), ideology (5.8%), security (32.5%), colonial (7.9%), resources (5.5%) and ethnicity (20.8%). 

First and most importantly, the parties in the conflict must be willing and trying to meditate. It is up to the parties to decide when to choose mediation. Mediation processes turn complex when it engages actors at different levels. The mediation process faces hurdles when in the case of interest groups like social movements and youth groups, they lack clear leadership and are not easily defined. The parties must be transparent with the laws and norms that guide their involvement. Sometimes the parties may reject mediation initiatives because they do not understand mediation and perceive it as a threat to sovereignty or outside interference. Also sometimes in a multi-actor conflict, the parties may agree to the mediation, leaving a mediator with the difficult situation of partial consent to commence a mediation process. 

The final stage is the outcome. If it appears that any settlement is unattainable, then the mediator should consult with the parties what is as to the minimum that needs to be achieved in order to commence a peaceful approach. It should also help the parties build into the agreement options to address the issue later. Sometimes mediation can be a long-lasting process bearing fruitful outcomes. One such instance was the nuclear crisis in Iran where the mediation process started in 2002 and was solved after 14 years.

Global outlook: laws in international arena

Today, war is becoming increasingly complex and so is mediating peace. International c

onflict takes regional and cultural dimensions and that leads to political unrest and drags on for more than decades. It is within the power of the United Nations to tackle this system. The UN has various mediation resources. The United Nations Convention on International Settlement Agreements Resulting from Mediation enhances the global framework for mediation and harbingers its continued growth in a new international treaty. Article 2 and Article 33 of the United Nations Charter states that countries should solve their disputes through peaceful means. International Arbitral Institutions such as the ICC, ICDR, and LCIA also provide mediation services as a first step to solve any dispute. 

In 2002 “Model Law on International Commercial Conciliation” was adopted to make more effective laws and rules for the mediator as well. In some countries like Hawaii, California, Norway, and the United Kingdom, mediation is mandatory before litigation. 45 jurisdictions have adopted legislation on mediation procedure inspired by the Model Law on International Commercial Mediation that was adopted by the United Nations in 2002 and later amended in 2018. In 2006, the “Mediation Support Unit” was established within the Department of Political Affairs for mediation processes. In the year 2008, a five-person Mediation Support Standby Team was developed to allow for the deployment of mediators to conflict areas on short notice. On 24th September 2010, the “Friends of Mediation” was founded with the sole motive to promote the culture of mediation. It consisted of 52 Member States, the United Nations and 8 regional organizations and other international organizations and was chaired by Finland and Turkey. In the 65th session of the General Assembly, emphasis was given to strengthening the role of mediation in the peaceful settlement of disputes, conflict prevention and resolution. According to the UN Guidance on Effective Mediation, a mediation process should take into consideration factors like consent, impartiality, inclusivity and national ownership of each specific conflict. 

In 2011, the European Union established a Mediation Support Team followed by the Organization for Security and Cooperation in Europe (OSCE). Also, the African Union, the Economic Community of West African States (ECOWAS) and the Intergovernmental Authority on Development (IGAD) have established mediation support offices within their secretariat structures. The Southern African Development Community (SADC), the Economic Community of Central African States (ECCAS) and the Organization of American States (OAS) have supported mediation capacities. Resulting from Mediation of the “Convention on Mediation” or “Singapore Convention”, the United Nations Convention on International Settlement Agreements facilitates international dispute resolution by making settlement agreements resulting from the mediation to be directly enforceable at the courts of the member States. In August 2019, it had six countries namely Qatar, Saudi Arabia, Ecuador, Fiji, Belarus and Singapore and 48 signatories. 

Strategies by countries to enhance the role of mediation

Different countries have different procedures for mediating disputes. In India, the legal system to mediation was introduced through the Arbitration and Conciliation Act, 1996. The Indian Supreme Court in the “Salem Advocate Bar Association, Tamil Nadu v. Union of India” held that reference to mediation, conciliation and arbitration are mandatory for court matters. India’s role is remarkable in solving international disputes. This has also paved the way for her to become a neutral party in international disputes, mainly in the Asia-Pacific Regional Mediation Organization and has shown support to Asian-African Legal Consultative Organization (AALCO).  

In the United States, mediation originated in the late 20th century and the government started using it in 1970 onwards. The US federal government, settle or the local government provides various mediators in order to resolve the issues. In Western, Europe mediators are appointed in order to mediate all the Industrial Disputes. In Belgium, Italy, Poland, Germany, Portugal and the Netherlands, only certain cases require mediation. In France, mediation is voluntary, not mandatory. After Israel declared statehood in 1948, there were community mediation centres established to resolve disputes with Palestine. China has been playing a remarkable role in mediation. In the late 2000s, China attempted to mediate political conflicts in Nepal and Zimbabwe and also the Israel-Palestine conflict. In the year 2017, Beijing mediated in nine conflicts. China relies on its traditional approach and the policy of non-intervention, friendly manner, Confucianism, humanistic/moralistic value system and neutral onlooker to mediate. Economic interests, political influence, garnering prestige and visibility are its driving force.  Russia has been particularly active in promoting mediation since 2010. The European Bank for Reconstruction and Development (EBRD) is actively promoting mediation in the Kyrgyz Republic, Moldova and Tajikistan. Despite the fact that the Mediation Directive has caused most European countries to open up more in the direction of ADR, they are nevertheless wary of compelled mediation, as seen by the Frankfurt Higher Regional Court’s decision. 

Landmark case where mediation solved international disputes 

Some of the landmark international disputes where mediation, by different international organizations, states and individuals, have played a crucial role are:

Mediation by countries

  1. Tashkent Declaration: The Tashkent declaration of 1966 was mediated by the USSR. It was a conflict between India and Pakistan over the Kashmir issue. The declaration led to the restoration of friendly relations between India and Pakistan.
  2. Algiers Agreement: This agreement took place in the year 1975, where Algeria facilitated as a mediator to solve the border disputes between Iran and Iraq. There was also an Algiers Accords facilitated by Algeria between the United States and Iran to resolve the Iran hostage crisis.
  3. Acta De Brasilia Agreement: In the year 1998, the Acta De Brasilia agreement was signed between Ecuador and Peru where Brazil, Chile, Argentina and the United States played the role of mediator there to create peace and ecological protection.
  4. Arab-Israeli Conflict: A recent mediation case has been in the year 2020 where the United States acted as a mediator in solving the Arab-Israeli conflict.

Mediation by international organizations

  1. In the Thailand-Philippines dispute over tuna exports, the parties preferred consultations facilitated by the European Union Trade Commissioner and mediation to the World Trade Organization Dispute Settlement Body’s adjudicative approach. 
  2. The International Institute for Sustainable Development (IISD) took a premediating step where it conducted neutral third-party research to avert the chance of any dispute that might arise out of climate change due to scarcity of water in Syria, Lebanon, Israel, Jordan and Palestine. 
  3. In 2019, the International Environment was facing several conflicts and to solve this the United Nations-led international communities ensure peaceful interaction and coexistence through mediation. 
  4. In the Gambia, there was a union by the United Nations, the AFRICAN union, and neighbours’ countries to prevent a major political crisis through mediation. This was also prevalent in countries like Sudan, Iran, to name a few.

Mediation by individual leaders

  1. In the Nigerian Civil War of 1967-1970, Adam Curle (British Academic), John Volkmar and Walter Martin acted as mediators to find solutions to end the war. Popularly known as the Three Quakers, they also mediated during the Zimbabwe war of independence during 1965-1979. 
  2. Due to the mediation of Ex-American President Carter, the Camp David accords were signed in 1978 following the thirty years of peace between Egypt and Israel.
  3. Beginning in the year 2002 and continuing till 2004, a Mediation Dialogue was opened between Venezuelan President Hugo Chavez Fraiz, the Government and the opposition by the Organization of American States, the United Nations Development Program and Jimmy Carter (Ex-US President) to solve the issue of a divided society and preserve the democracy.

Has the role of mediation always resulted in success?

As mediating international conflicts involves different aspects, mediation has not always resulted in any settleable outcome. Mediation may lead to spectacular successes as well as failure. For instance, in the year 1948, the UN Commission for India and Pakistan failed in facilitating peace between the countries and hence the conflict persisted. 

Recently the Foreign Office spokesperson of Pakistan, Zahid Hafeez Chaudhri, said that the Indo-Pak disputes must be resolved through talks and dialogue to maintain good relations with India. Here the Kashmir issue was mainly emphasized and Pakistan is of the opinion to resolve it through the international community in accordance with the relevant UN Security Council resolutions.

There has also been a situation where mediators have denied mediating issues and also where the parties have rejected mediation. The US government during the Presidential regime of Donald Trump has denied mediating between India and China to resolve the standoff between border troops. But here the Chinese foreign ministry spokesperson, Zhao Lijian rejected the third-party intervention citing that the countries are capable of solving the issues through dialogue. In the same way in 2019, India had turned down Trump’s offer to mediate the Kashmir issue as India was aware of the US’ bad history of mediation. In the Indus River Treaty case between India and Pakistan, both countries opted for facilitation by the Permanent Indus Commission instead of mediation and arbitration. In the Mekong River Dispute between Thailand and Laos, the parties rejected adjudication as a dispute resolution option in the Mekong Agreement stating that disputes that are not first resolved by the Mekong River Committee are to be referred to the governments for negotiation, possible mediation or eventual settlement according to principles of international law. In the Amur River Dispute between China and Russia, the parties decided against adjudication and chose to resolve the problem through a joint field-mapping exercise of the disputed area in which they agreed to divide the islands in half.

Another aspect is that countries have agreed to ADR but have contrasting opinions on which ADR mechanism to follow. Mediation has also worked as a dispute resolution mechanism in case of maritime disputes. One such conflict was between Greece, Turkey and Cyprus. Here although dispute resolution was preferred still Greece favours international arbitration whereas Turkey prefers bilateral negotiations. Turkey’s capital Ankara agrees to international ADR techniques but Greece’s capital Athens wants international adjudication on a more specific and limited set of topics, whereas Ankara wants to put a broader range of topics on the table.

Challenges that mediation faces to settle disputes

Although the nations have opted for mediation as a means to solve disputes still there are certain obstacles and lacunas apart from their various advantages and importance. 

  1. Obstacles: Mediating any international conflict involves different things. Primarily it depends on the type of issues as its nature poses a challenge in the mediation process. In some cases, the issues are state fragility, political and criminal and ideological interests, etc. the mediator, as well as the parties, faces certain hurdles in the process. Thus, strengthening the capacities of mediators and conflict parties, enhancing the chances of success, maximization of opportunities for effective mediation is still not adopted properly. 
  2. Lacunas: Mediation as a dispute resolution system at the international level lacks the institutional power and support that is associated with adjudicatory forums. Also, there are no proper unitary or procedural rules for governing the practice and implementation of the mediation process. As seen, mediation involves many aspects. It is not just a country coming forward to mediate the dispute between two conflicting countries. It involves other aspects like time, venue, rules, procedures and so on as seen. There is a lack of proper standards for determining international mediators or such other factors to maintain uniformity. This uniformity is required because the involved countries have their own contrasting rules and process. Thus, uniformity is required to comply with international law. It is just in recent time that the American Arbitration Association (Private Mediation Providers), Judicial Arbitration and Mediation Services (‘JAMS’) Inc and the International Mediation Institute have developed processes for certifying mediators in the practice of international mediation.

How can we promote mediation for effective role and implementation?

It is the burden and the responsibility on the mediator’s shoulder to create an effective environment. Since the governing laws of the countries and the laws of the imposed legislation or organization may clash leading to a chaotic ending, thus in order to have a balanced approach the mediator and the parties must be sensitized to the positive and negative impacts of a mediation process, function of the process, implementing rules and procedures and all related things. Mediation would be a success if the parties are well informed, patient and balanced in their approach. The UN has worked on the technical aspects of mediation through United Nations Ceasefire Mediation and Management Course, De-escalation and Coordination Committee, Special Envoy, Mediation Support Unit.

To foster growth, development and effective implementation of any particular thing, it is important that the steps are initiated for the same at the grassroots level. Applying the same to the mediation process, mediation should be introduced in courts too at the national level of the states via rules of court, judicial training, cost sanctions, legal aid provisions, professional obligations and education of professionals. If this is done, then countries would be far more motivated to approach mediation as a dispute resolution mechanism. Government and Public Sector Bodies can take steps for greater utilization of mediation through initiatives with stakeholders to include mediation in the health sector, major construction projects, land community activity, reform, education, planning proposals and provision of local services. 

It is necessary that mediation is promoted by the local authorities, civil societies. In the Southern African Republic, the UN has been engaging at a local level with religious authorities and participating in women leadership so that women have a seat at the table and that their voices are heard. The Nordic Women Mediators’ Network and African Women Networks of Women Mediators are notable in this regard. There should be inclusive mediation focusing on the gender dimensions of mediation. International actors should establish international contact groups to provide resources to support mediation efforts and processes and guide the whole system of resolution for a greater success rate.

Conclusion

Today the world has been advancing at a very fast rate. These advancements have impacted countries in many ways as various disputes have started arising at the international level on various matters. Due to differences in ideology, diplomacy, policies and other facts each they have been facing conflicts. Earlier any conflict would lead to gory war but now to solve disputes, peaceful manners have been opted for and mediation have proved to be a very approachable way. Countries have preferred discussions over any arguments and debates. The use of mediation is rapidly increasing today as the countries are coming forward to handle international diplomacy. In the coming time, more and more countries would be willing to opt for mediation instead of any other lengthy process. Mediation can help settle controversies and decrease aggression and animosity between the involved parties. Mediators can play an invaluable role if the parties are willing to explore a negotiated solution.

Mediation is a faster, cheaper, nonbinding, voluntary, consensual and non-adversarial process to reach a mutually acceptable agreement. Moreover, it also enhances good rapport between the parties. Mediation should not be seen as an option but as a necessity. It should be used as a more effective tool. Mediation is still an ignorance today to some extent. New and more approachable ways to successful mediation practise should be initiated by countries. Countries should invest in dispute resolution mechanisms and enhance their scope and reach. The countries must ensure that the regions that have expertise in mediation should take steps. Here the most effective role can be played by the United Nations. If the UN finds unity, then meditation efforts would expand. 

Mediation has played a very fruitful role in mediating international conflicts, its impactful implementation strategy and the role played by the mediators. But we have also seen instances where mediation has utterly failed. This was due to the inherent lacunas that the process has. As seen, more countries, as well as national and international organizations should come up with more tactical strategies while dealing in such disputes so that the role that mediation has played and has been playing results in a cent percent success rate. The UN should enforce mediating terms be it military or maritime or border or refugee disputes. 


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here