Introduction:  Mediation in General
Mediation is a form of alternative dispute resolution whereby a third party acts as a facilitator in order to help the parties reach an agreement on their own.  The mediator’s function is simply to keep the conversation on the right track.  In other words, the mediator is there to help the parties understand each other’s viewpoint, let people vent, get the parties to analyze their positions, and act as a conduit for discussion.  Mediation as a mechanism for dispute resolution can be employed both domestically and internationally, and the third party can be an individual, another state, an international organization, or a superpower.  There may be a host of reasons that a third party would intervene in a conflict between two countries.  They may desire to help an ally, procure world peace, gain influence or high standing in the international community, or protect its own political or economic interests which may be affected by the conflict’s outcome.

Mediators should generally not talk too much, discuss whose side the law is on, nor provide their opinion on any of the issues being negotiated by the parties.  Sometimes, however, especially in the international context, mediators are interested or have a stake in the outcome of the dispute.  In these instances, the mediator will take a more active role and tend to shape the discussions in a manner that would eventually procure the settlement he/she desires. Although many theorists have put forth numerous advantages and disadvantages of the effect of mediator partiality upon the outcome of a dispute, the debate still reigns as to whether mediator partiality leads to beneficial outcomes and/or settlements that become lasting resolutions. 

Advantages & Disadvantages of Mediation
There are many advantages to mediation, aside from it being a faster and cheaper way of resolving a dispute.  Most notably, because the parties must both agree on the solution and the mediator has no decision-making power, there is more autonomy.[1] The mediator is there solely to act as a neutral to help the parties resolve the conflict impartially and find a mutually acceptable agreement.[2]  Therefore, the compliance rate is higher than litigation because the parties feel good about the outcome and want to comply. Also, mediation is better for some disputes because it establishes an atmosphere where the parties work to settle the situation themselves by focusing on interest-based rather than rights-based resolutions.[3]  By designing a solution that accommodates their underlying interests, the parties feel more competent, have higher self-esteem, and feel more in control of their decisions.  The parties also enjoy a higher satisfaction level because of the participatory value they have received from the mediation process.  Mediation helps to preserve the relationship between the parties which may have been destroyed or severely damaged in the litigation arena.[4]  Because the parties are encouraged to problem-solve in a cooperative manner, mediation minimizes the harsh emotions that may be present in litigation.

Although mediation humanizes the conflict resolution process by emphasizing compromise and improving psychological states, the process also has some disadvantages.  Many feel that mediation has a negative impact on women because they tend to be more altruistic, more risk adverse, and less in control.[5]  Men tend to prefer mediation because it provides an opportunity for them to create a more favorable agreement through intimidation and coercion.  During mediation, many people bargain in the shadow of the law (i.e. what they perceive will happen if a court determines the provisions of the settlement), and because women may be stereotyped in court, they have a tendency to relinquish more in negotiations.  While mediators are good at discovering the real issues (not the ones listed), they also tend to encourage these power imbalances. 

The mediator may make sure that both parties understand the deal, but if one party knowingly makes a bad deal, he may not intercede.[6]  Therefore, parties without the benefit of counsel may enter into a legally defective agreement.  Mediators can not escape their own experiences and beliefs, and since most mediators are older white men, they are predisposed to favor the party most like themselves.  In mediation, which strives to avoid discussion of blame and principles in order to maximize compromise, the party’s voice has the potential to be suppressed. 

Because unequal bargaining power due to fear or intimidation may cause one party to have a greater emotional need to hastily agree to an unfavorable settlement, mediation may not be the best route for some types of disputes.  Respected Collaborative Law expert, Pauline Tesler, eloquently distinguishes mediation from its collaborative law counterpart: “Mediation by a single neutral works well only for a small group of clients who are high-functioning, as well as similarly situated with respect to information base, negotiating skills, and emotional stance towards one another.”[7] Mediation has the effect of incidental psychological catharsis, but it is not the point of the interaction.  If two people could not come to an agreement but realized personal growth, then counseling was a success but mediation a failure.

Mediation in the International Context
Article 33(1) of the UN charter provides the manners in which international disputes between countries can be resolved.  The article reads as follows:  “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”[8] 

Mediation, also known as “good offices,” is a technique which consists primarily of the efforts of a third-party to assist those involved in a dispute to resolve their disagreement through negotiation.  A mediator serves as an intermediary between the two parties by proposing solutions and exploring opportunities for settlement.[9]  Each mediator possesses critical skills for diagnosing impasses and managing the process.[10]  Mediators usually begin the negotiation by discussing the process, shaping the expectations of the parties, encouraging the disputants to collaborate in reaching a settlement, and requesting that each party prepare a position paper.[11]  Mediators have an active role in the discussions and should attempt to facilitate communication, clarify and identify interests, generate alternatives, and move the parties toward settlement.  Mediators help to guide the negotiation toward settlement by posing focused yet open-ended questions, re-framing issues, and implementing numerous strategies to defuse tensions and get beyond deadlocks.[12]  A mediator may implement any number of his/her skills during the process as long as they are designed and used in order to orient the disputants toward settlement.  Mediators impose procedural rules on the disputants at the start of a negotiation and may insist that the parties sign a confidentiality agreement.[13]  In some instances, mediation is combined with negotiation and conciliation in order to reach a quicker and more amicable settlement. A successful international mediation is one in which not only de-escalation of the conflict is achieved, but also one where the settlement leads to an enduring resolution between the countries.[14]

International mediators can be superpowers (i.e. U.S. during Camp David Dispute), international or regional organizations (i.e. UN/OAS), an international court (i.e. ICJ), humanitarian organizations (i.e. Red Cross), and/or respected political figures (i.e. Carter or Kissenger).  Disputes can be between states that have international personality or between a state and an international organization.  The issues of the conflict can range from national security and human rights to religion, ideology, competing ambitions, historical antagonisms, or economic standing within the international community.  Mediation is likely to occur when an impasse has been reached by the parties and neither side is willing to incur the costs (both economically and in casualties) of the dispute escalating. 

Because an international mediation is usually between two disputing countries with varying cultures, the potential for misunderstandings and miscommunications is prevalent.  Each country has its own language, meaning for gestures, appropriate behavior or etiquette, attitudes towards interpersonal space and punctuality, core beliefs, and stereotypes, as well as a host of other possible influencers on the outcome of a mediation.[15] Different meanings can be attached to words and gestures depending upon the culture interpreting them.  For example, in one culture it may be considered generous and a sign of strength to concede on a point, and in the opponent’s culture, it may be seen as a retreat or abandonment of a right.[16]  A mediator must be knowledgeable in different languages and customs so that he/she can employ strategies such as clarification and summarization if he/she is to be effective. 

Further, it is precisely because of the different and sometimes conflicting cultures that mediation is the better mechanism for dispute settlement. Mediation allows the participants to discuss concerns and explore interests, so disputants are more apt to feel heard and dealt with fairly regardless of the outcome.[17]  The adjudicative process, in contrast, does not focus on the underlying issues which are usually the real reason for the suit.  For example, sometimes an apology, recognition of hurt feelings, saving face, integrity, honor, or acceptance of a particular ideology become the main issue in a conflict and may be more important to the disputants than territorial boundaries.[18] Thus, since a mediator takes those issues into account, the mediation process will be more apt to result in a successful settlement or lasting resolution. 

Mediation vs. Other Forms of ADR
Another form of alternative dispute resolution is “good offices.”  In a good offices dispute, as opposed to mediation where the mediator is an active participant, the third party facilitates the negotiations but does not play an active role in the process.[19] Both mediation and good offices have the potential to become binding, but only if both parties agree to that beforehand in a written contract.  Conciliation is a process similar to mediation and good offices; however, the parties are expected to refer the controversy to a conciliator who will make findings of fact and recommendations.  Both mediation and conciliation are not binding, and the recommendations of the third party can not be imposed upon the parties (unless agreed to beforehand). The difference between the two is that a mediator is more active in the process and may make affirmative suggestions for settlement during the discussions.[20] 

Arbitration, on the other hand, is a process whereby a neutral third party listens to all the evidence presented and then imposes a decision on the matter.  While arbitration models mediation in certain respects (i.e.: less costly, fewer formalities, relaxed rules, less combative, etc),[21] there are other advantages as well.  Parties may participate in choosing the decision-maker and establishing the rules that will govern the procedure, which they are unable to do when utilizing litigation.  Arbitrators are usually experts on the subject being disputed, unlike many judges in litigation.  In contrast to mediation (where private settlements are usually not automatically binding), the arbitrator’s decision is binding and may not be appealed.  Since arbitration is not subsidized by taxes (as opposed to a judge in a court of law) and is less time consuming, the cost to society is less because society favors lower taxes and expedition.  Finally, the decision of the arbitrator is not a matter of  public record, so the party’s private information is kept confidential. The public, however, does not like secrecy. Moreover, the decisions of the arbitrator do not establish precedent.[22] Because the processes of arbitration and mediation are shorter, less expensive, and private/confidential, it causes less trauma to all the parties involved.

Advantages & Disadvantages of Mediation in the International Context
There are many reasons why mediation should be the primary mechanism employed for settling disputes on the international plane. The goal of an international mediation is to resolve the conflict in a peaceful manner.  A trained or experienced mediator can increase the disputants’ desire to make concessions in order to reach a mutually beneficial agreement.  The mediator can accomplish this by manipulating the discussions so as to encourage trust between the parties, engender respect for each others’  autonomy, promote the expression of feelings and/or the control of those feelings that are irrational, and facilitate the making of concessions by both parties so that neither one loses face.[23] Unless otherwise agreed, the mediation result is not binding on the parties; however, the mediator’s recommendation may exert considerable influence on the outcome of the settlement.[24]  Although intervention by a third party does not always result in a perfect settlement, it will usually tend to keep the conflict from escalating.[25]

A third party intervener may have the effect of reducing the stronger disputant’s bargaining power; nevertheless, the risk of continued conflict (which could ultimately lead to war) may outweigh the risk of losing some bargaining power.[26]  Another risk of employing mediation to solve a dispute is that the mediator may encourage a party to be more aggressive than they would normally be or chill the negotiations by exaggerating a party’s position, thereby prolonging the dispute.[27] Also, third parties tend to seek compromises between the disputants, which results in the parties trying to “win” the negotiation instead of focusing on settling the dispute.[28]  Furthermore, a third party may have its own purposes for promoting or preventing a particular outcome.  This may cause the interested mediators to seek outcomes not in accord with the disputants’ interests.[29] However, in the long run, it is better to mediate an international dispute because continued conflict is not only costly and dangerous but has the potential to destroy the world.

Impartial vs. Partial Mediators
While procuring world peace may be one of the reasons underlying a mediator’s decision to intervene, it is usually not the primary motivation.  Third parties are more apt to intervene in an international dispute if the conflict threatens or has the potential to advance their interests.[30] Mediators in the international context are usually biased intermediaries who are interested in the outcome of the conflict for their own personal reasons.  Rewards for a mediator can range from increasing influence over the parties to ensuring future support and rights to information, and from  protecting a threatened economic market to gaining the status or reputation as a country or person to turn to in times of conflict.[31]

As mentioned previously, mediators can be superpowers, organizations, or individuals, each of whom wish to participate in resolving the conflict for their own personal motives.  Regional organizations, such as the OAS, may become involved to make sure their region is not effected by the dispute’s outcome, whereas a superpower may intervene to make sure one of the disputants do not join forces with an enemy state and gain influence over the superpower.[32]  It has been said that mediators are selected by the adversaries because of their ability to extend the interests of both parties, and not because of any perceived impartiality; however, there have been many debates over the years as to whether impartiality influences outcome.

According to Wehr and Lederach, an outsider-neutral mediator comes from outside the conflict situation, has no connection to either side except through the dispute process itself, expects to gain nothing from the mediation in the form of rewards, and maintains distance from the disputants and the conflict once the negotiation has come to an end.[33]  The insider-partial, however, has formed trusted relationships with the disputing parties, is connected to the adversaries in more ways than simply the conflict or service performed, inspires openness, and stays involved with the disputants after the mediation process has ended.[34]

Some theorists contend that impartiality is crucial in a negotiation in order to gain the confidence of the disputants, with the end result being much more equitable.[35]  Others believe that the opposite is true:  that trust and perceived fairness are based on being an insider to the conflict, and having a stake in the outcome or being friends with one side allows the mediator greater influence over the outcome.[36]  A biased mediator, with access to the adversaries has the potential to influence the parties to make concessions and agreements precisely because of his/her past relationship with the parties. Thus, whether mediator partiality facilitates success of the mediation in the international context is still being debated.

Examples[37]
There have been numerous mediations between conflicting countries in which the mediator is partial and interested in the outcome for his/her own reasons.  Although the examples given will focus on the most recent mediations, the concept is hardly new.  One example is the Central American dispute between the Contras and Sandinistas, which in essence was a secret battle between the United States (who was arming Honduras and El Salvador) and the Soviet Union and Cuba (who were arming the Sandinistas).  The United Nations, Contador, Central American Conciliation Commission, Oscar Arias, and Jimmy Cater each took a turn at attempting to mediate the conflict and reach a settlement.

In the end, the Esquipulas agreement was signed and implemented.  While it has worked well in Nicaragua, the UN is still monitoring the rest of the opponents.

Another example is the dispute between Israel and Syria in which the United States was the interested mediator.  By accepting the position of mediator, the United States (who had been supporting Israel financially) were able to get the Israelis to make certain concessions.  The United States forestalled the escalation of the conflict, gained status and influence over the opponents, and achieved respect and open lines of communication from the Arab Nations. However, the United States influence over Syria was not enough as the Arabs would not reciprocate by making concessions of their own, and the process came to another impasse.

A third example of mediation used in the international context is the internal dispute between the government and citizens in Sri Lanka.  India, who was the mediator, was interested in the outcome because the conflict had serious potential spillover implications for India itself.  India, however, was arming Tamil militant groups and betraying the Liberation Tigers of Tamil Eelam (LTTE) at the same time as they were acting as the mediator in the dispute.  They retaliated by killing Gandhi.  Needless to say, the mediation failed and the countries resorted to military solutions and internal war.

Yet another example stems from the Yugoslovia Conflict between Croatia and Serbia.  This Civil War eventually spread to include Bosnia, Herzegovina, Kosovo, and the Muslims as well.  The first to attempt mediation between the warring factions was the European Commission (EC) which failed because each side blamed a different side for the war, and their views interfered with the resolution process.  The United Nations Secretary-General (Boutros-Ghali) met with the EC to coordinate mediation efforts, but those plans were ultimately rejected by the Bosnia Serbs.  Gorbachev, who had ties with Serbia because they shared the same religion and culture, was the next to attempt mediation; however, he too was arming and vocally supporting the Serbs.  Turkey and the Arab Nations sent arms to the Bosnia Muslims, while Germany recognized both Croatia and Serbia as independent nations immediately because they saw the chance to extend influence in the Eastern European Region.  Lastly, Greece favored Serbia; however, their own motives predominated in that they needed to conduct trade via Macedonia and, thus, had an interest in the outcome. Therefore, Greece used their influence in order to get Serbia to make concessions.

The internal war between the Irish Republican Army (IRA) and England stems from a long history of  competing religious beliefs (Catholics v. Protestants), violence, and military operations.  Northern Ireland decided to use force and violence in order to remove British control and create an independent state on the island of Ireland.  The U.K. government refused to negotiate until the IRA was unarmed, but the IRA considered this demand to be equal to a military surrender. To break the impasse, an international commission under the chairmanship of former American senator George Mitchell attempted to facilitate further political dialogue.  The  commission recommended that the British government drop its demand that the IRA disarm before Sinn Fein, its political arm, be allowed to take part in full peace talks.  Eventually, the Good Friday Accord was signed by both parties in April of 1998.  However, the fighting between the countries only increased dramatically. In late 1999, Senator Mitchell once again traveled to Europe in an effort to salvage his peace agreement.  While the IRA agreed to disarm, they have not done so to date. The fighting continues in spite of Mitchell’s mediation and/or the signed peace agreement.

Other examples of partial or biased mediations that have taken place within the last decade are the following:

(1)   Carter’s role in the Haitian Dictatorship;

(2)   Brazil’s role as the guarantor of the Peruvian-Ecuadorian order;

(3)   the U.S. role in the recent Bosnia conflict;

(4)   the French role in the dispute between Serbia and Kosovo;

(5)   the Russian role in the Kosovo/NATO conflict;

(6)   the role of the United Nations in the dispute involving Cypress;

(7)   the role of Sweden in the internal war between Columbia and its citizens; and

(8)   the multiple roles of the Norwegians, Egypt, and the United States, in the dispute between Israel and Palestine which ultimately lead to the Oslo Agreement. 

Conclusion
Mediation is a form of alternative dispute resolution whereby a third party acts as a facilitator in order to help the parties reach a settlement and de-escalate the conflict.  Mediation as a mechanism for dispute resolution can be employed both domestically and internationally, and the third party can be an individual, another state, an international organization, or a superpower.  There may be a host of reasons that a third party would intervene in a conflict between two countries.  Sometimes in the international context, mediators are interested or have a stake in the outcome of the dispute. Mediators may desire peace; however, that would just be one aspect to their acceptance of the role.  Usually, a mediator has an underlying motive for intervening in the dispute, such as prestige, respect, national security, future support from the adversaries, protection of their own territory or economic markets, and/or enhanced influence over the parties. In these instances, the mediator will take a more active role and tend to shape the discussions in a manner that would eventually procure the settlement he/she desires. Although many theorists have put forth numerous advantages and disadvantages of the effect of mediator partiality upon the outcome of a dispute, the debate still reigns as to whether mediator partiality leads to beneficial outcomes and/or settlements that become lasting resolutions.        

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