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Mediation Perspectives: Where Do Norms Come In?

After months of seemingly endless negotiations in a country that has seen years of conflict, the moment has finally come to sign a peace agreement. Exhausted, the mediator is preparing herself for the ceremony, which will take place in a few hours. But before she gets ready to leave, a representative of an international organization enters the mediation office, with a glum expression on his face. “Your text is not nearly as gender-sensitive as we would have liked; you omitted several of our clauses. We counted on you and you failed to put them into the agreement. You have to change it, or we will not endorse the agreement!”

Although fictional, the above example reflects how common it has become in mediation to push aggressively for the inclusion of norms. Mediators are faced with ever-higher expectations when it comes to including normative demands into peace agreements – not just from advocacy groups lobbying for their interests but increasingly from mandating authorities like the United Nations, the European Union or state governments. This raises many questions about how to treat these demands.  If they represent diverging interests, some of them may have to be tempered or sequenced. But it also raises another, perhaps more fundamental, question: to what extent is it a mediator’s role to promote norms in a mediation process?

These are some of the challenges explored in our recently published article ‘The Role of Norms in International Peace Mediation’. One of the key findings is that a mediator’s basic understanding of mediation has a decisive influence on his or her approach to dealing with norms. A useful exercise for reflecting on how to deal with norms is to distinguish between different types of norms through a case-specific hierarchy. As a first step towards doing so, norms can be clustered into those that affect the mediation process (e.g. inclusivity, impartiality) and those that affect its content (e.g. amnesties).

Process-related norms

The first cluster of norms relates to a wider debate about the appropriate style and role of a mediator during a mediation process. Opinions vary about whether she should merely be concerned with managing communication between conflict parties and structuring the process, or should actively push for certain norms, such as the inclusion of additional stakeholders. An example of the former was the Sri Lankan process, where Norway acted as a mediator but kept a very low profile and refrained from putting pressure on the conflict parties. At the other extreme was the Bosnian conflict, where the United States even used its military power – in bombing Serbia – to bring conflict parties to the negotiating table and played a very active role in all decisions taken.

Depending on our definition of mediation, we might even conclude that certain actions violate core principles of mediation. Our understanding of mediation therefore has a direct bearing on which norms we uphold and how we pursue them.

Content-related norms

Content-related norms pertain to the substance of a peace agreement.  For some of these norms, such as the prohibition of blanket amnesties, there are clear guidelines for mediators to follow. If parties want to put blanket amnesties into an agreement, mediators need to explain that the agreement will not be endorsed internationally. If the parties still pursue this path, the mediator will have to withdraw from the process, or she can be held legally accountable and may be prosecuted.

However, there are many other norms that are – legally speaking – less well defined and enforced. The establishment of structures for transitional justice, of the basis for popular elections, or of institutions to counter corruption is often crucial to sustainable peace. But who should introduce these norms into a peace agreement? Some argue that these norms must be included, and, if need be, forced into the final agreement by the mediators. Proponents of this view tend to stress the importance of the agreement to sustainable peace at a critical moment in a society’s future. The Dayton Agreement that was signed in Bosnia in 1995 is a case in point: it still largely determines how the state functions today and revising any of its provisions has proved virtually impossible. Most mediators argue, however, that if a third party imposes content on the final agreement, that party is no longer performing mediation but, instead, a (heavy-handed) form of diplomacy. Again, our understanding of mediation will affect which norms we uphold and how we pursue them.

Protecting the mediation space

In light of the growing debate around norms in mediation, many mediators are beginning to insist on ‘protecting the mediation space’. Proponents of this view do not deny the importance of norms, whether process- or content-related, for the eventual functionality of a state or society. They typically welcome the continued refinement of normative frameworks, which may clarify contentious issues and could be an indicator for the increasing professionalization of the field. However, they caution against overloading mediators with normative imperatives and press for the clarification of the mediator’s role. Mediation, they argue, is a voluntary process, as the UN definition makes clear. This suggests that a mediator cannot impose her ideas without losing the trust and hence the consent of the parties involved. Because these parties ultimately have to live with the outcome of a process, imposing anything from the outside only reduces the legitimacy of an agreement. As a consequence, process-related norms such as inclusivity may be pursued by mediators – but not without the consent of the primary conflict parties. A corollary of this is that those pushing for the inclusion of norms should lobby the conflict parties, rather than the mediator.

Mediation is also only one component of a larger peace process. This means that there are many channels outside a mediation process, such as parallel consultations or the creation of judicial or security mechanisms, where normative standards can be established. We cannot always expect mediation processes to result in comprehensive documents that, on their own, bring about peace and prosperity in a country. Rather, there are typically a number of different types of agreements, including framework agreements and ceasefire agreements, that all come with their respective particularities and limitations. For instance, although the European Union celebrated the Brussels Agreement between Kosovo and Serbia in 2013 as a landmark agreement, it is far from putting an end to the overall conflict. Instead, its success consists in anchoring what has been agreed upon so far and facilitating further negotiations. In many cases, insisting on a more comprehensive agreement can undermine the progress that has already been made and risks prolonging the conflict.

Conclusion

The debate about including norms in mediation needs to go beyond assessments of the usefulness of specific norms themselves in resolving particular conflicts. The inclusion of norms is inherently linked to how people understand mediation and what they expect from it, and there is no consensus about whether it is appropriate for mediators to push for certain norms against the will of conflict parties. As a first step, mediators and their mandating authorities, but also advocacy groups and other international actors, should openly address this issue to make sure they at least understand each other’s points of view.

This will allow for a constructive exchange about which norms should be directly included in a process and in what form, inevitably in close consultation with parties to a conflict. The sensitivities of conflict parties may show external actors where they have to manage their expectations and instead aim for intermediate steps that entail more limited norms, rather than blindly pursuing a maximalist approach.

Undoubtedly, being explicit about what one expects from a mediator and how one thinks different types of agreements should be handled is critical for actors mandating and supporting mediation processes. It will help them clarify the reasons why they demand the inclusion of some norms at a given moment of a process. More importantly, doing so can help mediators manage –and understand – the increasingly complex terrain of norms in mediation and find their role in it.

By Mathias Zeller, ethz.ch
July, 2015

TESTIMONIALS

Connie Theron, Practising Attorney - UCT Law Clinic
“While working at the University of Stellenbosch Legal Aid Clinic and later at the UCT Law Clinic, I found the pro bono mediation services of Gerrie van der Watt of the Mediation Centre to be highly professional and extremely effective in our divorce matters. It is fantastic that our clients, with little or no financial means, can benefit from such an excellent programme.

The mediators are able to provide a non-threatening environment in which the clients are able to talk openly about issues that matter most to them, but which the Court in a divorce matter may choose not to entertain. Through the mediation sessions, the clients are able to reach an agreement together which ultimately they are both happy with. In cases where mediation did not yield the result of a settlement, the process was still extremely valuable, giving the parties better perspective and highlighting the key issues in dispute.”