I recently had the privilege of meeting Nomi Bar-Yaacov, a prominent human rights lawyer and associate fellow on international security at Chatham House, who specialises in negotiation, mediation and preventive diplomacy. She has worked on peace negotiations between both private parties and states and seeks to encourage cooperation between the public and private sectors.
Bar-Yaacov pointed out the numerous parallels that can be drawn from peace negotiation/mediation and the private sector:
“It is my core belief that the dispute resolution profession is vital to achieve a healthier, saner, more equal and more prosperous society. Both international conflicts and private ones can stem from cultural misunderstandings, competing interests, personal frustrations, and a sense that injustice prevails.”
Conflict hampers progress and leads to instability and uncertainty, characteristics which are undesirable within a society and in business. In preventing conflict, the core principles in peace negotiation or mediation are largely the same as in commercial dispute resolution, according to Bar-Yaacov; adding that psychological factors are often very important - both for companies or states, with the roots of a conflict often stemming from different perceptions. When these different points of view are not conveyed to the other party, a resolution is highly unlikely.
Primarily, she stresses the importance of communication, noting that only talking to one another can lead to a mutual agreement and failing to do so will always result in a loss for all parties involved. This is also true for commercial dispute resolution, where opening up a dialogue is the best chance for parties to resolve the conflict more quickly and cost-effectively while also providing a chance to maintain a future business relationship. Communication is a means for every side to improve and directly influence the outcome. While there are very clear differences in political and commercial negotiation/mediation, cultural factors play an important role in all negotiations - whether it is the culture of a region or country, an ethnic group, a sector or simply within a company; cultural sensitivity is crucial for a mediator or negotiator.
In addition to cultural sensitivity, Bar-Yaacov lists a number of complementary skills and aptitudes which count as important qualities in an effective negotiator/mediator including expertise on the nature and the scope of the dispute in question, languages - particularly when working at the international level, profiling, choice of mediator or mediators, choice of venue, and a lot of patience. Looking at different tools in resolving conflict is also helpful in disputes where perhaps a non-adjudicative process such as mediation would not be effective. It is important for parties to know there are a range of mechanisms available to them and to help them to assess the situation and choose the most effective option.
Perception and preparation
For Bar-Yaacov preparation is key. Sometimes it makes sense for the parties to meet face-to-face at the initial stage, sometimes not. Putting yourself in the other party’s shoes and trying to understand their perception of the conflict is very important. It is also important to make sure that the parties reach a consensus amongst themselves in the preparation phase, she says, otherwise, the mediation is unlikely to reach a positive conclusion. “Even within one party you can often find numerous conflicting points of view, which is why this is so important.”
Once the parties meet face-to-face, the question often arises on how to build trust. “This is often done when participants from different parties venture off and have one-on-one face-to-face discussions outside the mediation room, en route to buying a sandwich, or during a break when they take a walk in the country etc. It’s hard to build trust in a group.”
She adds that the individual within the group to lead to the breakthrough is often not who you might expect; it is “rarely the head of the team. It is more likely that those more daring, and more open to compromise, are lower in the chain of command, not bound by the constraints of the more senior participants and their free thinking can lead to a serious breakthrough”.
Furthermore, Bar-Yaacov notes that it is important to have contingency plans, to develop strong alternatives and to examine options that would meet the parties’ expectations. It is vital to clarify what the goals and priorities are for each party, as well as identifying the red lines. This allows the mediator to establish the bargaining zone and to examine its nature and scope in detail. If there is no defined bargaining zone, she states, it is unlikely that an agreement will be reached. In short, the mediators need to do their homework properly!
Bar-Yaacov points out that it is important to recognise that in every political conflict there is also a commercial element. ADR is no longer simply an ‘alternative’, its role is absolutely vital in preventing the escalation or resolving a conflict already underway. If private and public sector mediators could join forces, representing and reconciling their interests, this could be an invaluable tool in building a brighter and more peaceful future for us all.