Mediation, Conciliation and Arbitration in Conflict Management

MEDIATION, CONCILIATION AND ARBITRATION IN CONFLICT MANAGEMENT Outline a. Introduction b. Definitions of conflict c. Conflict management d. Negotiation, Mediation, Conciliation and Arbitration as in Conflict Management e. Recommendation f. Summary/Conclusion Introduction Conflict is a natural phenomenon in every human societal living. It exits whenever people or groups disagree over which goals or values to pursue and the method and timing to be adopted in that regard. Since conflict is inevitable, it must be properly managed to mitigate its effects on human society

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Conflict From a Latin word ‘pugna’ means ‘to clash or engaged in a fight’. It means a confrontation between one or more parties aspiring towards incompatible or competitive means or ends[1]. Conflict is said to be present when two or more individuals or groups pursue mutually incompatible goals. It is an inevitable aspect of human interaction (Renwick et al, 1982)[2]. Conflict management It is an interventionist effort towards prevention the escalation and negative effects of ongoing violent conflicts.

It also involves the efforts to prevent, limit, contain, or resolve conflicts, while building up the capacities of all parties involved in other to undertake peacebuilding. It is based on the concept that conflicts are a normal part of human interaction and are rarely completely resolved or eliminated, but they can be managed by such measures as negotiation, mediation, conciliation, and arbitration. (de Rivera 2009:220)[3] is of the view that conflict management through negotiation and mediation, can help promote conflict prevention.

NEGOTIATION, MEDIATION, CONCILIATION AND ARBITRATION AS IN CONFLICT MANAGEMENT Negotiation, mediation, conciliation and arbitration are Alternative Dispute Resolutions (ADR) – In general, ADR refers to an approach to the resolution of conflicts that does not involve litigation and seeks an outcome at least minimally satisfactory to all parties concerned. ADR tends to involve greater direct negotiation on the part of disputants than does litigation, takes much less time and money, and seeks consensus.

Many analysts no longer include the word “alternative. ” Others use the term “appropriate dispute resolution[4]. ” Negotiation It is the process of communication and bargaining between parties seeking to arrive at a mutually acceptable outcome on issues which are of shared concern. The process typically involves compromise and concessions and is designed to result in an agreement, although sometimes a party participates in negotiations for other reasons (to score propaganda points or to appease domestic political forces, for example).

Pre-negotiation refers to preliminary talks to agree on such issues as the format, procedures, time frame, who will participate, and sometimes the scope of the formal talks. Endgame refers to the final stages of a negotiation, when substantive progress has been made but important details remain to be ironed out and the agreement hammered into final form[5]. Usually, two parties negotiate because they feel that they can gain something by interacting. Negotiation theorists use the term interdependence to describe this desire or need that parties feel to engage with each other.

Whether the two parties achieve their objectives often depends on how they perceive one another, to what extent they can predict each other’s actions, or how much influence they can exert over one another (Griffoli el et, 2004:23)[6] Case Study on Negotiation-South Africa Negotiation played an important role in the collapse of apartheid as a system of government in South Africa. In 1964, Nelson Mandela the leader of the African Nationalist Congress (ANC) was arrested and imprisoned for life due to his zeal to fight apartheid.

The fight against apartheid did not end with the imprisonment of Mandela. In 1976 a group of students demonstrating against a reform in educational system were shot and killed by the government. By 1980, there was increase pressure (economic sanction) on the government by the international community and this led to negotiation between Mandela and the government (Kivimaki, 2001)[7]. In 1990 Mandela was released from prison and by 1993, an interim constitution was developed by 21 political parties[8] (e. g. Inkatha Freedom Party, The Afrikaner National Party, etc. )

In 1994 the first democratic election was held and Mandela became the president and the subsequent collapse of the apartheid system of government. Mediation It is a facilitative process in which disputing parties engage the assistance of an impartial and neutral third party; the mediator, who helps them to arrive at an agreed resolution of their dispute. The mediator has no binding authority. The mediator serves as a facilitator. A mode of negotiation in which a mutually acceptable third party helps the parties to a conflict find a solution that they cannot find by themselves.

Unlike judges or arbitrators, mediators have no authority to decide the dispute between the parties. Mediators may focus on facilitating communication and negotiation but they also may offer solutions and use leverage, including positive and negative incentives, to persuade the parties to achieve an agreement[9] According to (University for Peace, 2005)[10] mediation is ‘a voluntary, informal, non-binding process undertaken with an external party that fosters the settlement of differences or demands between directly invested parties’.

Mediators often spend time with each party to the conflict through what has come to be known as ‘shuttle diplomacy’ or ‘caucusing’ especially when the parties are unwillingly to meet each other or joint meetings are not leading to progress. Conciliation A process of settling dispute where the disputants agree to utilize the services of an independent and impartial person; conciliator. The Conciliator’s role here is much of an interventionist. He may ask the parties involved in the dispute to submit a brief written statement describing the general nature of the dispute.

He may make proposal for a settlement of the dispute and also entitled to formulation and reformulation terms to settle dispute. The conciliation process has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award[11]. Arbitration It involves the referral of a dispute or disputes to an ad hoc tribunal (a third party)—rather than to a permanently established court—for binding decision.

By agreement, the parties define the issues to be arbitrated, the method for selecting arbitrators, and the procedures for the tribunal[12]. The third party is usually presented with arguments and evidence from both sides (University for Peace, 2005)[13]. The outcome of the tribunal is binding on the parties. According to (Crewley el et. 2002:4)[14], arbitration is a process where arbitrator is who is relatively informal, independent and impartial precedes over a conflict.

The parties to the conflict input issues, ideas and background material, then the arbitrator decides based on a compromise between what parties want, evidence and technical assessment. RECOMMENDATION We recommend that states should resort to negotiation, mediation, conciliation and arbitration as Alternative Dispute Resolution for the following reasons: i. They are fast and effective means of settling disputes. ii. They are less expensive. iii. It promotes a win-win means to dispute settlement. iv. Parties are easily reconciled after the settlement of the dispute.

SUMMARY/CONCLUSION 1. The occurrence of conflict in societal living is inevitable. It occurs when individuals or groups pursue incompatible goals. 2. Negotiation, mediation, conciliation and arbitration are forms of Alternative Dispute Resolution (ADR) – other forms of settling dispute other than litigation- the use of the courts. These means are less expensive and parties involved are easily reconciled after settlement of the dispute. ———————– [1] University for Peace (2005), A Glossary of Terms and Concepts in Peace and Conflict Studies 2] Renwick, A. & Swinburn, I. (1982), Basic Political Concepts. London : Hutchinson Education [3] de Rivera, J. (2009) Handbook on Building Cultures of Peace, New York : Springer Science [4] http://glossary. usip. org 30. 03. 2011 [5] http://glossary. usip. org 30. 03. 2011 [6] Griffoli, D. M. & Picot, A. (2004) Humanitarian Negotiation: A Handbook For securing access, assistance and protection for Civilians in Armed Conflict, Switzerland: Centre for Humanitarian Dialogue [7] Kivimaki, T. (2001) Encouraging Negotiation in South Africa. Copenhagen 8] http://www. exploresouthafrica. net/history/ accessed on 30. 04. 2011 [9] http://glossary. usip. org 30. 03. 2011 [10] University for Peace (2005), A Glossary of Terms and Concepts in Peace and Conflict Studies [11] http://glossary. usip. org 30. 03. 2011 [12] http://glossary. usip. org 30. 03. 2011 [13] University for Peace (2005), A Glossary of Terms and Concepts in Peace and Conflict Studies [14] Crawley, J. & Graham, K. (2002) Mediation for Managers: Resolving Conflicts and Rebuilding Relatonships at Work, London: Nichoas Brealey Publishing

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