Monday, February 2, 2015

The Mediator as Advocate

Brian GansonThe view of the mediator as a process facilitator who “must be neutral with respect to negotiated outcomes” appears to underpin much of the tension between dispute resolution and advocacy explored in Professor Bordone’s earlier blog. Professor Joseph Stulberg, among others, thoughtfully and forcefully argues that “a mediator must be neutral because justice demands it.” If not, “then there is no principled basis for distinguishing the mediator’s participation from that of a bully or a philosopher king.”

Yet at a retreat for African mediators of company-community conflicts, questions about the role of a mediator as neutral in the face of grave injustice were front and center. These cases often involve powerful forces threatening the livelihoods and even lives of vulnerable people in weak rule of law states. And the mediator is typically engaged and paid by an international financial institution whose overriding logic is to see a project – be it a mine expansion, a palm oil plantation or a dam – get done. We explored the many frustrations of mediators confronting these dynamics, but also where we felt we were contributing to just and durable solutions.

At least in our context, the conclusion was that effective mediators act as peace builders who put on the table the full range of tensions and stress factors within complex conflict systems, and who shape processes according to principles of conflict sensitive intervention and Do No Harm. They act as advocates of international standards of conduct and of basic fairness vis-à-vis powerful companies, national governments, and even the international institutions that typically employ them. They act as stewards of largely public processes whose outcomes must be, and be perceived as, broadly inclusive and legitimate. They act as systems designers who help parties not only resolve a discrete conflict, but anticipate the rules and norms they will need to address disagreements that will inevitably arise in the future. All actors in fragile environments—the mediator included—must take responsibility for the foundations on which agreements are reached, lest we become complicit in dynamics of very real and destructive conflict.

Are such activist and advocate roles inconsistent with fundamental principles of mediation? Do they turn us into Professor Stulberg’s philosopher king, or even worse, his bully? I would argue rather that mediation and advocacy need not be conflicting paradigms. They cannot be if we are to address our most pressing social challenges.

We can first acknowledge that mediation cannot be separated from the normative context of which it is part. In the training as a family mediator that initiated my interest in conflict and its resolution, we learned to be clear with parties and ourselves: outcomes would need to fall squarely within the four corners of the family code. The same ethic prevailed within the US Department of Education’s Office for Civil Rights, which like other federal “OCRs” has a dual enforcement and technical assistance mandate. For the vast majority of the thousands of complaints filed annually with the Office, finding a solution to which parents and school officials could commit was the order of the day; OCR made no findings of fact or law. Yet we unambiguously communicated that solutions need to comply with civil rights standards. In both the family and civil rights contexts, we worked hard as mediators to maintain flexibility, party autonomy and creativity. All the same these were exercised within normative boundaries acknowledged by the mediator and transparently discussed with the parties.

We might also look at how mediation shapes informal and formal normative systems. A colleague relates a story about a company in Nigeria that agreed to provide scholarships for students from neighboring communities. Conflict arose as some community members argued that boys should be the main beneficiaries of the scholarship scheme, while others claim that the children of certain families should have priority. Many boycotted the exam prepared by the company to select recipients based on test results. The ensuing dialogue amongst company representatives, teachers, community elders and government officials in charge of education enabled people to revisit traditional perspectives. They reached agreement on a process for awarding scholarships that represented a revised cultural norm.

In apartheid South Africa, certain companies through negotiated processes came to accept that labor disputes involving black workers could not be fairly decided by the national courts. They agreed to the creation of the Independent Mediation Service of South Africa for the mediation and arbitration of worker grievances. In doing so they also helped create an important crack in the foundation of an unjust regime. Such examples remind us that cultures and perspectives are not fixed; they are an evolving conversation among different points of view and interest groups in society to which the mediation process will contribute positively or negatively, whether or not we as mediators take note of or are comfortable with this dynamic.

When we acknowledge the role of mediation in shaping parties’ own critical evaluation of normative standards as they exist today and should change tomorrow, we then see – and can celebrate – that all good mediation is advocacy on behalf of core human values. To remain true to the values of mediation we must only admit to the parties and ourselves that we are part of the process of learning and growing, and maintain our own openness to being challenged and shaped as we explore the nature of those core principles.

Seen this way, mediation and dialogue are not anathema to activism; they are at the heart of the most effective advocacy the world has known. The most important acts of peace and justice that I have witnessed involve someone reaching across a conflict line to insist that, in essence, “we must talk about who we are and what we believe in.” In post-war Sierra Leone, violent and abusive relationships often persist between army units and the communities around them, undermining prospects for enduring peace. Despite fear for their own safety and the possibility of reprisals against their families, one group of women approached military officers in their district. Taking at face value the military command’s assertion that it was reforming, the women said, “we are here to symbolize that new relationship.” Whereas before the military had argued that “people trained to kill shouldn’t interact with civilians,” it progressively moved towards social activities with the community and eventually to dialogue about the care of detainees, bringing fighters out of the bush, and even holding officers accountable for their misdeeds. Dialogue created space for a new definition of national security that could also embrace human security.

As mediators working amidst seemingly overwhelming challenges and grave injustices, we can be inspired by such examples to be strong advocates: tirelessly advocating that we as human beings are never so different that we cannot in the end understand each other; courageously advocating that our fundamental interests are not so different or distinct that we cannot find solutions consistent with the security and dignity of all; and vigorously advocating when our inner voices tell us otherwise that it is a failure of imagination and not of possibility that make us feel so. Only in doing so can we be at peace with the parties, with difficult and often heartbreaking situations, with our roles as mediators, and with ourselves.

Brian Ganson ‘89 is Adjunct Associate Professor of Conflict and Negotiation at the Graduate School of Business, University of Cape Town, and Senior Researcher with the Africa Centre for Dispute Settlement.

 

Quotations are taken from Joseph B. Stulberg’s “Must a Mediator Be Neutral? You’d Better Believe It!” 95 Marquette Law Review 829 (2012). The reflections of company-community mediators in the African context are explored in Brian Ganson’s “Challenges and Opportunities for Company-Community Mediators in the African Context. Cape Town: Africa Centre for Dispute Settlement” White Paper Series (2013)

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