Mediation of International Conflicts Prof. John Barkai William S. Richardson School of Law University of Hawaii

1. Mediationof International ConflictsProf. John BarkaiWilliam S. Richardson School of LawUniversity of Hawaii

2. Conflict is inevitable but combat is not

3. GETTING TO YES People ▐ Problem Interests not Positions Invent Options Objective Criteria BATNA

5. Shark What you can’t see

6. Shark

7. International Crisis Mediation Case Studies Africa Asia Caribbean Europe Latin America South America

8. Small, medium, and large States/Counties - United States, Zambia, Argentina, Brazil, Chile, Australia, Soviet Union, Zaire, Saudi Arabia, Congo, Libya, Nigeria, United Kingdom, Algeria, Sudan, Somalia, Ethiopia, Mali, Iran, Iraq, Turkey, Germany, Turkey’s, Venezuela International and regional organizations - United Nations, League of Nations, Arab League, Organization of American States, African Union, Organization of African Unity, Economic Community of West African States, NGOs Unofficial individuals – Global diplomats - The Pope, former US President Jimmy Carter

9. Study 1 (commercial and labor mediation)"How do you account for your success as a mediator? “ 75% said: Ability to develop rapport with the disputing parties Develop a relationship of understanding, empathy, and trust

10. Mediation Styles in International Crises Facilitation – does not offer suggestions Formulation – offers opinions Evaluation proposes solutions Clout (manipulation)– solutions, (carrots & sticks) external rewards & punishment

11. Facilitative Style May contact with parties Gain the trust and confidence of the parties Arrange for interactions between the parties Identify underlying issues and interests Clarify the situation Supply missing information Transmit messages between parties Fact findingOffer positive evaluations Allow the interests of all parties to be discussed Control the pace informality of the meetings Ensure the privacy of mediation Highlight common interests Control timing Help parties save face

12. Evaluative Style Offer positive evaluations Help devise a framework for typical outcome Make substantive suggestions and proposals Suggest concessions parties could make

13. Clout Style Offer positive evaluations Help devise a framework for typical outcome Make substantive suggestions and proposals Suggest concessions parties could make Keep parties at the table Make parties aware of the costs of non- agreement Supply and filter information Press the parties to show flexibility Change parties' expectations Take responsibility for concessions Help negotiators to undo a commitment Reward concessions made by parties Promise resources Threaten withdrawal of resources Offer to verify compliance with the agreement Add incentives Threatened punishments Threatened to withdraw mediation

14. Asian Model of mediation Joel Lee and Teh Hwee Hwee,

16. Asian Model of mediation Directive (Evaluative) High context communication Collectivist Orientation Concern for Face Power Distance / status / hierarchy Confucianism

17. Thai and U.S Community Mediation Ronda Callister & James Wall, Journal of Conflict Resolution, 48 (4): 573-598 (2004) Compared 111 Thai and 111 U.S. community mediators Thai mediators are more likely to be assertive they put disputants together (joint session) demand concessions criticize disputants and threaten them more frequently than do U.S. mediators. Thai mediators more frequently seek harmony by asking disputants to forgive each other and to apologize.

18. Thai and U.S Community Mediation

19. Thai Mediators’ Techniques More frequently - uses joint sessions - calls for apologies to the opponent - talks about interdependencies - emphasizes the cost of the dispute to 3rd parties (children, family, community) rather than effect on relationship with each other Less likely - to call for empathy for other

20. Saturn

21. Saturn

22. PRACTICE MEDIATOR LINES FORUM PHASE - DEALING WITH THE PAST AND THE PRESENT Can we agree that as a ground rule, we will ... Remember, you both agreed not interrupt.. Tell me more about that. When did this happen? So what you are saying is ... Wait. Let me be sure I understand correctly. You're saying ... So, as far as you are concerned ... What else is important? Could you say more about that? How do you feel about what happened? What do you mean by that? Is there anything else you want to add? Let's move to the issue of ... Can you tell me more about ...? What additional information do you have on that? Of all that you have talked about, what is most important to you now?

23. NEGOTIATION PHASE - DEALING WITH THE FUTURE What could X do to help you solve this problem?" What can you do to help solve this problem? Do you have any other ideas for solving this problem? What do you think will happen if you can't negotiate a solution? How do you want things to be between the two of you? Is what you are talking about now helpful in reaching a solution? Put yourself in Mr./Ms. X's shoes. How do you think they feel right now. What do you have in mind on that topic? If X were to do A, what would you be willing to do? What I hear you saying is that you might be willing to ... You both seem to agree that ... Do you agree with the solution that we are talking about? What you are talking about sounds like it might work. What will happen if ... MUCH LATER - MEDIATOR SUGGESTIONS: How would you feel about ... What would happen if you tried ...

24. MEDIATORS FIND SOLUTIONS by HELPING PARTIES NEGOTIATE Uncover Interests Prioritize Interests Brainstorm Options "What could they do...?" "What could you do...?"

25. Establish criteria Create Doubts Review the Relationship Engage in contingent Bargaining "If they were to , what could you do?" "For you to , what would you expect them to do?" Narrow the differences Save Face Emphasize Progress

26. Engage in Reality Testing: BATNA Stress the Consequences of No Agreement Find External Standards & Sources Cheerleader for settlement And, as a last resort: Mediator suggests MULTIPLE options

27. Cultural Factors & Negotiation