MEDIATIONINTERNATIONAL SETTING

MEDIATION

•MEDIATION: it is a means of peaceful settlement of disputes and conflicts with the Security Council or the General Assembly, recommending any member or agency as mediator.(UN Charter, Arts. 10, 14, 36)

PURPOSES OF UN CHARTER• To maintain international peace and security, and to that end: to take effective

collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

• To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

• To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;

ARTICLE 11, PARS. 2 AND 32.) The General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member of the United Nations in accordance with Article 35, paragraph 2, and, except as provided in Article 12, may make recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion

3.) The General Assembly may call the attention of the Security Council to situations which are likely to endanger international peace and security.

ARTICLE 12

• While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.

ARTICLE 14• Subject to the provisions of Article 12, the General Assembly may recommend measures for the

peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations.

ARTICLE 15• The General Assembly shall receive and consider annual and special reports from the Security

Council; these reports shall include an account of the measures that the Security Council has decided upon or taken to maintain international peace and security.

• The General Assembly shall receive and consider reports from the other organs of the United Nations.

SETTLEMENT OF DISPUTES (UN CHARTER)• Article 33• The parties to any dispute, the continuance of which is likely to endanger the

maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

• The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

• Article 34• The Security Council may investigate any dispute, or any situation which might

lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.

WHO MAY BRING THE ACTION?Article 35• Any Member of the United Nations may bring any dispute, or any situation of

the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly.

• A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter.

• The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12.

SECURITY COUNCIL

• Article 36• The Security Council may, at any stage of a dispute of the nature referred to in

Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment.

• The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties.

• In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.

MEDIATION• The Department of Political Affairs plays a central role in United

Nations efforts to prevent and resolve deadly conflict around the world.

• DPA is the lead U.N. department for peacemaking and preventive diplomacy.

• DPA monitors and assesses global political developments with an eye to detecting potential crises before they escalate, and devising effective responses.

• The Standby Mediation Team is located in the Mediation Support Unit of DPA’s Policy and Mediation Division and functions as a resource for the UN system broadly

UNITED NATIONS RESOLUTION NO. 65/283

• “Strengthening the Role of Mediation in the Peaceful Settlement of Disputes, Conflict Prevention and Resolution”

• It is designed to support professional and credible mediation efforts around the world.

• It aims to help parties to strengthen their understanding of effective mediation, and

• to assist mediators in maximizing the chances for success in mediation.

The said Resolution was adopted by consensus, it recognized the increased use of mediation, reflected on current challenges facing the international community in such mediation efforts, and called on key actors to develop their mediation capacities.

Then the General Assembly requested the Secretary-General, in consultation with Member States and other relevant actors, to develop guidance for more effective mediation, taking into account, inter alia, lessons learned from past and ongoing mediation processes.

In response to such request of the General Assembly and in conformity with the Charter of the United Nations:

The Secretary- General prepared the UNITED NATIONS GUIDANCE FOR EFFECTIVE MEDIATION.

UN GUIDANCE FOR EFFECTIVE MEDIATION

• It is designed to support professional and credible mediation efforts around the world.

• It aims to help parties to strengthen their understanding of effective mediation, and to assist mediators in maximizing the chances for success.

• It aims to inform the design and management of mediation processes. • It is intended as a resource for mediators, States and other actors supporting

mediation efforts but is also relevant for conflict parties, civil society and other stakeholders.

• It emphasizes the need for a good understanding of mediation and an appreciation of both its potential and limits as a means for conflict prevention, management and resolution.

KEY FUNDAMENTALS TO CONSIDER IN MEDIATION EFFORT:

• Preparedness• Consent• Impartiality• Inclusivity• National ownership• International law and normative frameworks, coherence, coordination and

complementarity of the mediation effort• Quality peace agreement.

MEDIATION LOGIC• It is a process whereby a third party assists two or more parties, with their

consent, to prevent, manage or resolve a conflict by helping them to develop mutually acceptable agreements.

• It is a voluntary endeavor in which the consent of the parties is critical for a viable process and a durable outcome.

• Mediation starts from the moment the mediator engages with the conflict parties and other stakeholders to prepare for a process- and can include informal “talks-about-talks”- and may extend beyond the signing of agreements.

• A good mediator promotes exchange through listening and dialogue, engenders a spirit of collaboration through problem solving, ensures that negotiating parties have sufficient knowledge, information and skills to negotiate with confidence and broadens the process to include relevant stakeholders from different segments of a society.

MEDIATION LOGIC

• Effective mediation requires a supportive external environment.• A mediator needs to withstand external pressures and avoid unrealistic

deadlines while also developing the support of partners for the mediation effort.

• Not all conflicts are amenable to mediation.

POTENTIAL FOR EFFECTIVE MEDIATION

• 1.) Main conflict parties must be open to trying to negotiate a settlement;• 2.) A mediator must be accepted, credible and well

supported; and• 3.) There must be general consensus at the regional and

international levels to support the process.

MEDIATION FUNDAMENTALS

• PREPAREDNESS• Preparedness combines individual knowledge and skills of a mediator with a

cohesive team of specialists as well as the necessary political, financial, and administrative support from mediating entity.

• A well prepared and supported mediator is able to manage expectations, maintain a sense of urgency while avoiding quick-fix solutions, and effectively respond to opportunities and challenges in the overall process.

• Mediators must: commit resources to respond rapidly and support mediation process; select a competent mediator with the experience, skills, knowledge and cultural sensitivity for the specific conflict situation; reinforce the mediator with a team specialist; provide proper preparation, induction and training for mediators and their teams; include a balance of men and women on mediation teams.

CONSENT• Mediation is a voluntary process that requires the consent of the conflict parties to be

effective.

• Mediators need to create a common understanding with the conflict parties on the mediator’s role and ground rules of the mediation.

IMPARTIALITY• It is the cornerstone of mediation- biased mediation process undermines meaningful

progress to resolve conflict.

• Mediator should be able to talk with all actors relevant to resolving the conflict.

• Mediator should: ensure and seek to demonstrate that the process and the treatment of the parties is fair and balanced; be transparent with the laws and norms that guide their involvement; not accept external supports which will affect impartiality; handover to another mediator if they feel they cannot maintain impartiality.

INCLUSIVITY• Inclusivity refers to the extent and manner in which the views and

needs of conflict parties and other stakeholders are represented and integrated into the process and outcome of a mediation effort.

• Mediators should: Identify the level of inclusivity needed for the mediation to start and required for a durable peace that addresses the needs of all affected by the conflict; Communicate with any party or actor necessary to address the conflict, with the knowledge of the other negotiating parties; Limit contacts with actors that have been indicted by the International Criminal Court to what is necessary for the mediation process; use different forms of media including social media and opinion polls.

NATIONAL OWNERSHIP• implies that conflict parties and the broader society commit to the mediation

process, agreements and their implementation. • National ownership requires adapting mediation processes to local cultures

and norms while also taking into account international law and normative frameworks.

• In promoting national ownership, mediators should: Consult closely with the conflict parties on the design of the mediation process; Encourage and enable conflict parties to inform and consult with their constituencies, including the rank and file, during the mediation process; Be aware of the specific cultural approaches to negotiation and communication and leverage those approaches to the greatest advantage of the process; liaise with and ensure support for local peacemakers and, wherever appropriate, draw on indigenous forms of conflict management and dispute resolution; Protect the mediation process from the undue influence of other external actors, especially with regard to unrealistic external deadlines or incompatible agendas.

INTERNATIONAL LAW AND NORMATIVE FRAMEWORKS • Mediation takes place within normative and legal frameworks, which may have

different implications for different mediators. Mediators conduct their work on the basis of the mandates they receive from their appointing entity and within the parameters set by the entity’s rules and regulations. Thus, United Nations mediators work within the framework of the Charter of the United Nations, relevant Security Council and General Assembly resolutions and the Organization’s rules and regulations.

• Consistency with international law and norms contributes to reinforcing the legitimacy of a process and the durability of a peace agreement. It also helps to marshal international support for implementation.

Mediators must be briefed and familiar with the applicable international law and normative frameworks and should: Be clear and convey their mandates and the legal parameters applicable to their work; Ensure that the parties understand the demands and limits of applicable conventions and international laws; Ensure that communications with the conflict parties and other stakeholders on legal matters and normative expectations are consistent; Be clear that they cannot endorse peace agreements that provide for amnesties for genocide, crimes against humanity, war crimes or gross violations of human rights, including sexual and gender-based violence; amnesties for other crimes and for political offences, such as treason or rebel-lion, may be considered – and are often encouraged – in situations of non-international armed conflict.

COHERENCE, COORDINATION AND COMPLEMENTARITY OF THE MEDIATION EFFORT• Coherence encompasses agreed and/or coordinated approaches, while complementarity refers to

the need for a clear division of labor based on comparative advantage among mediation actors operating at the different levels.

• Mediating organizations must: Mediation processes should have a lead mediator, preferably from a single entity. Mediation initiatives with two or more entities should be based on a coherent mandate from the relevant entities with a single lead mediator. This provides clarity, minimizes forum shopping by the conflict parties and facilitates coordination and the development of a coherent mediation process; The decision regarding leadership should be reached through consultations between the relevant entities, taking into account the conflict context and based on comparative advantage. Proximity to the parties should be neither dismissed nor taken for granted as an automatic advantage.

QUALITY PEACE AGREEMENTS

• Peace agreements should end violence and provide a platform to achieve sustainable peace, justice, security and reconciliation. To the extent possible in each situation, they should both address past wrongs and create a common vision for the future of the country, taking into account the differing implications for all segments of society. They should also respect international humanitarian, human rights and refugee laws.

• To achieve a quality peace agreement, attention must be paid during negotiations and implementation to the process, substance and institutionalization of mechanisms that provide for the non-violent resolution of the conflict and prevent re-emergence of violent conflict. Mediators, conflict parties, other stakeholders and support actors should consider the following criteria: The agreement should aim to resolve the major issues and grievances that led to the conflict, either by addressing the root causes directly in the agreement or by establishing new mechanisms and/or institutions to address them over time through democratic processes.

JULY 31, 2014

• The General Assembly adopted Resolution 68/303

“Strengthening the role of mediation in the peaceful settlement of disputes, conflict prevention and resolution “

• Recalling Chapter VI, including Article 33, of the Charter, and other Articles relevant to mediation, as well as Chapter VIII of the Charter and other Articles relevant to, inter alia, the role of regional and subregional organizations in mediation,

• Encourages the use, as appropriate, of the United Nations Guidance for Effective Mediation1 in mediation efforts, in accordance with the purposes and principles enshrined in the Charter