Review by Kevin Baldeosingh
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‘Use mediation to resolve emotionally charged conflicts’
In the tiny village of Trinogo, all lived peacefully harvesting their special mangoes and sorrel from their fields and fishing from the Peace River. Everyone used the Peace River until one day, a new group from the village of Liti-Gate came into the village and began living near the Peace River.
Realising its value, they created a dam so the waters of the Peace River could be spread much farther inland over the lands in Trinogo. It spawned a new tourist industry for visitors to this new dam. Almost everyone in Trinogo was happy about this dam except a group of villagers downstream who were upset that their fish stock was being depleted. The Liti-Gators told them they were going to Adjudgor to tell them what to do.
Adjudgor convened court and looked at their laws and told the parties that the dam was for the benefit of Trinogo. Unsatisfied, many other villagers lower down the Peace River made their protestations to Adjudgor. For years, their complaints lingered before Adjudgor.
In the meantime, the entire village in Trinogo became hostile over the use of the Peace River. Some began to tear it down, and others began raiding the villagers downstream to get them out of Trinogo. Adjudgor became overwhelmed by the volume of complaints and tasked an elder in the village, Papa Mediate, to intervene. Papa Mediate convened a meeting with everyone affected.
He reminded them of the peace Trinogo enjoyed using the Peace River. He asked them to come up with some solutions for everyone to benefit from the Peace River. It was not easy but peace was restored, and they signed a Peace River agreement. The parties came out of the meeting, shook hands and wondered why they were fighting in the first place. Adjudgor breathed a sigh of relief.
This story of Trinogo repeats itself in many of the disputes before our courts. When disputes arise, often the adversarial adjudicative process in the civil justice system serves to drive the wedge between parties even deeper. Disputants become increasingly polarised and entrenched in their positions as the system is designed on a winner-takes-all approach. There could be only one winner in civil litigation.
However, what is victory for Liti-Gate when their fellow villagers lose their livelihood? What is a victory for the villagers downstream if Liti-Gate cannot modernise Trinogo fields? Who really wins when a result is imposed on the villagers of Trinogo that does not bring lasting peace? Parties in such a system consume their time and energy in taking the risk of a result hopefully favourable to them but guaranteed to destroy the Peace that once existed.
What if their costs and time can be focused on arriving at a joint solution, a road map for the development of the entire village where the parties can transform their negative conflict into positive change?
Providing a solution
Mediation provides a solution. Very often the use of mediation has proven successful in resolving not only these types of community disputes but a diverse field of human disputes in commerce, family life, community, employment, public disputes, religion and politics.
It is because of the recognition globally of mediation as a suitable process for the resolution of most disputes that we at the Mediation Board of T&T have been advocating to the public the more frequent use of mediation for the resolution of our conflicts at all levels in society.
Mediation is a process of facilitated negotiation where a neutral, a certified mediator, assists the parties to negotiate and resolve their conflict. The process has an impressive track record of resolving emotionally charged conflict.
In our experience in T&T, the statistics reveal as at 2013 that in family disputes at the Family Court there is a 70 per cent success rate in achieving agreement in mediation. For commercial cases in the Court Annexed ADR pilot project together with the Dispute Resolution Centre, the success rate is 75 per cent.
In disputes handled by the Community Mediation Centres, high rates of settlement are also recorded of 69 per cent. Mediation at the Environmental Commission enjoys an impressive track record of 80 per cent settlement rate.
The success of mediation is rather more revealing in the disputant’s response to the process. Almost 90-95 per cent of disputants in mediation share the view that it was a worthwhile experience. It means even if mediation does not result in an agreement, the disputant still values the process.
This is a very important lesson about mediation as it is a process which is not just about settling a dispute. What these statistics reveal and what we have learnt in our interaction with various stakeholders in this country is firstly that the majority of people view litigation itself as a last resort, there is no relish for the increased acrimony of court battles.
Second, those parties instead place a higher value on their opportunity to “talk out” their dispute. Mediation provides that safe, controlled and confidential opportunity to discuss their dispute fully. It is in that opportunity that parties with the assistance of the mediator focusing their discussion can begin to understand alternative perspectives, appreciate common interests, and acknowledge the need to work on a more positive future.
The mediator who facilitates dispute settlement does not authoritatively direct the course of agreement or offer opinions on the merits of the dispute, unless it is an evaluative mediation. Instead, the mediator encourages communication by helping each party understand the other’s goals.
Mediators emphasise common ground in order to build a consensus that allows parties to examine their concerns and design their own settlement plans. It is in this process that parties learn the value of collaboration, co-operation and consensus. The ultimate goal of mediation is to replace traditional power contests and ego trips with principled negotiation for the benefit of all parties.
Simply put, one of the attractive features of mediation is the ability to transform disputants by dealing with a human problem humanely.
Ensuring an enduring and lasting end to conflicts
Mediation is regulated under the Mediation Act 2004 and the Mediation Board certifies mediators, mediation trainers, training programmes and mediation agencies. Important in the practice of mediation is the mediator’s Code of Ethics which guarantees the ethical practice of mediation on the main principles of self determination, informed consent and most importantly, confidentiality.
We have seen from the several mediated cases how empowering it was for disputants to resolve their conflict on their own terms, being creative with solutions, and ensuring there is an enduring and lasting end to hostilities. When we analyse mediation as a process we appreciate its value as a peace making tool. In this way, we see mediation as a pathway to peace.
Indeed the Mediation Board was encouraged by the 180 delegates who attended our First Peace Summit held in Tobago on October 2 and 3, and who all demonstrated not only their keen understanding of mediation and other conflict resolution techniques but thoughtfully presented ways in which these techniques can lead to our development as a nation by transforming negative conflict into positive change.
At that summit the delegates formulated a Draft Peace Declaration which made the call “for the energies of our nation to be focused on the development of a holistic peace plan for the proper management of human conflict.”
The Mon Desir to Debe portion of the highway engages attention
The delegates devised several initiatives including mediation to promote the cause of peace, committed themselves to forming a Peace Steering Committee among its objectives to develop a peace advocacy agenda, and develop legitimacy and the political will for the implementation of a peace plan and National Peace Policy for T&T.
One of the disputes which had engaged the attention of the delegates at the Peace Summit was the ongoing dispute concerning the construction of the Mon Desir to Debe portion of the highway, and the utility of mediation to bringing parties closer to resolving their differences.
There is nothing novel about this dispute which makes it beyond the capacity of the disputants to arrive at a mutually workable solution. Some experts view public litigation as unsuitable for mediation. But the correct approach to determine the suitability for mediation is not the class/type of case but the underlying interests, motivation or relationships, and communal impact of that case.
Many mediators have remarked at what would at first seem to be intractable disputes in public law disputes that are resolved by a focus on the parties underlying interests.
Conflicts, public disputes, antagonism
Mr Sriram Panchu, a senior advocate and mediator in Chennai, India, and a feature speaker at one of our annual mediation symposiums observed that public disputes over sharing resources or land acquisition have a history of antagonism. “They lead to outbreaks and clashes. The psyche of communities does not permit impositions even when those come from judicial authority. Such disputes also damage relationships.” It is not without precedent.
In Canada controversy swirled around the Maine Woods with the Allagash Wilderness Waterway (AWW). AWW, a 92-mile ribbon of lakes, ponds, rivers and streams in the northern Maine woods; in trying to develop the waterways from 1970 for 33 years, the Allagash was the subject of ongoing litigation and controversial management plans. In 2002 it was cited as the 11th most endangered river, and action groups cited “mismanagement, too many access points, and overuse of the sensitive river.”
When yet another bridge was proposed the battle lines were drawn between environmentalists, native sportsmen and out-of-state canoeists. It was Northern Maine versus Southern Maine. Another round of lengthy litigation seemed inevitable. But within four months, the hostilities came to an end with a peace accord.
As the mediator Jonathan Reitman recounted: “In early April, a group of 23 stakeholders and advisors gathered for a two-day facilitated retreat at the River Drivers Restaurant in Millinocket, Maine with an ambitious goal: to forge consensus on a series of agreements covering access to the river and a variety of other management issues. Thirty hours later, exhausted but triumphant negotiators emerged from the session with ‘The River Drivers Agreement,’ which the governor hailed as a “comprehensive and visionary” approach to management of this precious resource. Signed and agreed to by all 23 participants, the agreement has won broad praise as a road map for preserving both the wilderness character of the waterway and recreational access to it.”
Closer to home, in Belize in 2004 mediators successfully resolved a dispute between the villages of the Crooked Tree Village and the Belize Audubon Society (BAS).
The BAS was tasked with managing the Crooked Tree Wildlife Sanctuary. When the BAS tried to implement a management plan that would regulate traditional hunting and fishing practices, the villagers who lived almost in isolation for 230 years objected.
It mushroomed into a five-year-old conflict. The Dispute Resolution Foundation of Jamaica intervened, spearheaded then by Mr Donna Parchment. They conducted a community dialogue which led to better education of their community, the resources, support for conservation, respect for traditions and improved communication between the parties. Thirty-five parties were invited to that mediation comprising four interest groups.
Approach mediation carefully, thoughtfully
Mediation in these types of disputes must be approached carefully and thoughtfully to achieve the desired outcome of a joint peace plan. Some of the considerations that the parties must take into account are:
(a) Ensuring the issue is “ripe” for resolution. For parties engaged in ongoing battles which have spilled way beyond the papers in litigation and have affected the wider civil society, there is a great motivation to have a dialogue. In cases a court ruling may in reality be “victory” for no one and for battle weary litigants, the timing of mediation could never be too late.
(b) Selecting the right mediator who is certified under the Mediation Act is an important task for the parties. It is joint exercises where the parties will shortlist their mediators, examine their profile or call for references. In large disputes it is not uncommon to have a co-mediation with two or even three mediators. The mediators will then work as a team and determine their own roles to facilitate the dialogue.
(c) Getting the parties to the peace table is a negotiation in itself. In some cases mediators conduct pre-mediation sessions. This is valuable so that parties can understand the purpose of the mediation meetings, their roles, to discuss their expectations and areas of “deal breakers”.
It gives the mediator a sense of how the discussions should be managed when all the parties meet. In these preparatory meetings the mediators may begin to get a glimpse of the areas of their commonality.
(d) All of the various interests must be represented at mediation. This is an important exercise as demonstrated in Allagash and Crooked Tree disputes. The parties attending the mediation must have the authority to settle or to make a decision. At the very least they should have a negotiating bracket with a facility to get further instructions.
(e) Disputants should be flexible in their approach. The traditional mediation is conducted by a mediator in the privacy of an office with at least one separate room to be utilised as a “break-out” room in the event that parties wish to hold a private caucus with the mediator. However, nothing prevents multi parties in large disputes to utilise a concept of a “retreat” where all the stakeholders who have an interest in the dispute are invited such as in the Allagash dispute. In such an environment the mediators can devise working groups for different groups to work on different areas and issues. Further in being creative with the model to be used nothing prevents the mediators from inviting a group of advisers and elders whose wisdom and experience may add realism to the discussion. Small drafting groups and offline discussions can prove invaluable. We at the Mediation Board have in fact begun the exercise of developing Tobago as that neutral, serene gateway to hold such peace talks for large disputes.
(f) There must be a commitment to the process. Parties may adopt an “agree to disagree” approach; however there must be buy-in to the process of mediation, and the importance of listening to different perspectives and trying to understand them. It is not a court hearing. There should be no meaningless posturing. Parties should help the process by focusing their energies on the common issues. It is a process of consensus building, and so the parties should be alive to the possibilities of hot topic issues derailing the process and can agree to put those issues lower down the agenda and deal with other issues. It is important to build momentum and to make positive use of the disputants’ time and energy.
(g) Being committed to the process means being committed to the confidentiality of all the discussions. The confidentiality of mediations is guaranteed under the Mediation Act.
(h) It is not over until everyone is comfortable with their agreement. Indeed mediators are quite happy to re-open the discussions even after the agreement is drafted if a party raises another concern over one of the clauses. It is important for the ritual of closing that there is buy-in and satisfaction.
(i) No one can claim victory in mediation. There is no one winner. In my view there is no settlement either. Settlement suggests there is something inferior that was worked out. I rather like to look at a “settlement” as a joint plan for peace. The agreement can be made in private or it can be made public it is entirely a matter for the parties.
As mediators our greatest hope is to see parties shake hands at the end of the day and come to a realisation that many of their fears may have been due to, in a large part, their miscommunication and misinterpretation of different perspectives. egardless of whether parties settle, our greatest satisfaction is to see parties leaving the mediation with a deeper understanding of one another, a respect for each other’s humanity, and a commitment to our joint existence.
We at the Mediation Board urge all to rethink their approach to conflict and to use mediation as an opportunity to find peace. We shall be exploring these concepts at our Mediation Week from November 23 to 29.