Mukti Rijal

This writer has received quite a few exposures on the thematic contents and process of negotiation and facilitative mediation which have been appreciated and used largely worldwide as mechanism for conflict resolution. This writer has undertaken and overseen a host of assignments as a trainer, contributor in training resource material preparation and workshop facilitator in the area of negotiation and facilitative mediation. However, this author’s involvement in the promotion and use of negotiation and facilitative mediation has been theoretically limited to local level community dispute resolution though the fundamentals of this dispute resolution mechanism have been the same irrespective of the scale and issues underneath the conflicts and discords.

Facilitative mediation
Today, facilitative mediation has become widely accepted formally and officially as the means of the dispute resolution in the rural communities of Nepal, especially following the implementation of the relevant provision in the Local Government Operation Act, 2017. Through melmilap (an amicable settlement of disputes) has been an integral part of the cohesive and collectivist social-cultural milieu of Nepal which had been practised informally for centuries, its legal-rational construction during the contemporary times has helped it to gain broader legitimacy and expansion in positivist framework of judiciary as well.

Needless to say, dialogue-based negotiation and mediation have successfully proved to be the safest and constructive tool to resolve complex disputes for centuries from all levels from local to the global. Many critical global, regional inter-state conflicts are negotiated and resolved though recourse to peaceful negotiation and dialogue based mediation. As reported, the Ukrainian crisis is being attempted to settle through recourse to dialogue and mediation efforts. The French president and German Chancellor, among others, have been using their levers to bring about mediated settlement of the crisis.

In fact, the term pacific settlement of conflicts has been widely applied and tossed out for long to refer to resolving strains and issues that vitiate the inter-state and multilateral relations. The phraseology "giving diplomacy a chance to settle disputes" between or among the states without resort of coercive and intimidating tactics and measures clearly indicates that negotiation and dialogues based mediation have been emphasised with utmost priority and preference in the resolution of disputes. This article attempts to highlight some provisions of the UN Guidance on mediation adopted more than a decade back which have become increasingly relevant today since the mediated settlement of disputes both in the domestic and international arenas has been a tested matter of priority.

The Charter of the United Nations adopted in 1945 following the end of World War II aims at preventing future generations to suffer from the scourge of wars and conflicts. Accordingly, it identifies and accords significance to negotiation and mediation, among others, as the important mechanism for the peaceful settlement of disputes and conflicts. In fact, devastation of World War II was halted when the major powers holding mutually antagonistic values and ideologies had finally forged the commonality of interests for a constructive and futuristic settlement.

Experiences from the past as well as contemporary practices do substantiate that the conciliatory efforts and mediation have proven to be an effective instrument and mechanism to address both inter-state and intra-state issues and conflicts. In fact, taking cognizance of the need for a foundational resource material to outline and enunciate the values of mediation, the UN did produce a document titled the United Nations Handbook on the peaceful settlement of disputes between States in 2008 when Ban Ki Moon was the Secretary-General of the world body. The document lays out basic principles and discusses the importance and relevance of mediation in the resolution of disputes.

It offers a clearly articulated, easy to follow and useful resource to further the understanding and application of mediation as a very practical and meaningful tool for resolution of intra-state and inter-state disputes of various stripes and magnitude. As highlighted by Moon, the document is intended as a resource for mediators, states and other actors supporting efforts for mediated settlement of disputes but is also relevant for conflict parties, civil society, other stakeholders and actors.

It emphasises the need for a constructive understanding of mediation and an appreciation of both its potential and limits as a means for conflict prevention, management and resolution. The UN Guidance on mediation distills and draws on the experiences of the international community, inputs from member states, the UN system, regional, sub-regional and other international organisations, non-governmental organisations (NGOs), women’s groups, religious leaders, academic community, as well as mediators and mediation specialists.

As it is acknowledged, the Guidance is not an exhaustive reflection on mediation, nor does it seek to address each of the specific needs or approaches of different mediators, including the states, multilateral, regional or sub-regional organisations, non-state organisations or national mediators. Rather, the Guidance aims to address several major issues, in particular the need for a more professional approach to mediation which includes the requirement for coordination, coherence, complementarities and inclusiveness.

To address these issues, the UN Guidance identifies a number of key fundamentals that should be considered in any mediation efforts which comprise preparedness; consent; impartiality; inclusivity; national ownership; law and normative frameworks; coherence, coordination and complementarities of the efforts and quality peace agreements. The Guidance outlines some potential challenges and dilemmas facing mediators and offers some practical tips. The Guidance also recognises the complexity of the environment within which mediators work. Each situation must, therefore, be approached differently, and ultimately the willingness and readiness of the conflict parties is the determining factor for success of the mediation efforts.

Careful attention
Nevertheless, careful attention to such fundamentals of mediation as impartiality, confidentiality, inclusivity and mutualising concerns and interests increase the prospects for a successful settlement process, minimise the potential for mediator error and help generate an environment more conducive to mediated resolution of the disputes. The fundamental elements of mediation discussed and incorporated in the UN Guidance offer the ready to subscribe provisions for domestic legislation and practices within the jurisdiction of the UN member states. Nepal’s initiatives to promote mediation should also take account of the basic guiding principles enshrined in the UN Guidance and the Prevailing Mediation Act can be examined from the perspectives of globally standardised and accepted practices.

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.  rijalmukti@gmail.com)