ALSD 305 MEDIATION THEORY
Course Outline
I.
Introduction to mediation
II.
Characteristics of mediation
III.
The Idea of Third-Party Intervention
IV.
Characteristics of mediators
V.
Actors in International Mediation
VI.
The Structure of International Mediation
•
The Mediation Environment
•
Phases in Mediation
•
Types/ Strategies of Mediation
VII.
Issues and interests in International Mediation
VIII.
Classification of Mediation and Mediators
IX.
Nexus between mediation, negotiation, arbitration and litigation.
X.
Mediation by regional and sub-regional organizations
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The idea of Third-Party Intervention.
Categories of third parties in a conflict;
•
Constituents
•
Audience
•
Allies and Patrons
•
Third Party Conflict Managers.
Third Party Conflict Managers.
The term third party is used to refer to a person or a team of people who become involved in a conflict
to help the disputing parties manage or resolve it. Third parties might act as consultants, helping one
side or both sides analyse the conflict and plan an effective response. They also act as facilitators in
arranging meetings, setting agendas, and guiding productive discussions. Third party conflict
management includes litigation, arbitration, problem-solving workshops and mediation.
Mediators, not only facilitate discussions, but also put forward a structure and process for the
discussions that is designed to move the parties towards mutual understanding and win-win
agreements. While many different styles of mediations are common, most mediators have the
conflicting parties sit down together to explain to each other their views about the nature of the
conflict and how they think it might best be resolved. The mediator often also tries to get the
disputants to focus on underlying interests (the things they really need or want) more than their initial
opening positions (what they initially say they need or want). By clarifying the divergent reasons for
those views, mediators can get the parties to develop a common understanding of the situation, which
often yields a solution that satisfies the interests of all the parties.
Characteristics of Mediators
•
They should be a neutral party and one that is mutually selected by the disputants.
•
They should possess the required skill of intelligence and tact to handle the conflict at hand
•
They must not impose their own opinions, views and directives to the disputants but rather
act as a facilitator in engaging the disputant to solve or come up with their own solutions to
the issues at hand. (Assist them in reaching agreements and then stir up support for
implementation). At most, they can suggest a solution, which the disputants may or may not
accept.
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•
They must be accountable, transparent and level-headed(rational) while managing the
mediation process and should not be biased towards any of the disputants. They have to be
equally trusted by both parties.
•
They should respect the confidentiality of the disputants.
•
The mediator must ensure that the mediation process, interactions and agreements are
guided by international law, norms, principles and values so that there is some form of
regulation guiding the process itself and the outcomes as well.
Actors in International Mediation.
Other than the conflicting parties in an ongoing conflict, we have other external actors that also
become participants in the conflict and its usually under the auspices of conflict management
approaches. They include; state and non-state actors - (inter- governmental organisations, nongovernmental organizations).
These actors in the international system usually play a positive role in the process and conclusion of
mediation of various conflicts. However, they can also undermine or prolong the mediation process
as their motives vary from humanitarian interests to altruism to geo-political and economic interests,
foreign policies, public image and personal and professional status. Some of these actors may also be
actively involved in fuelling the conflict by supportting one or more of the conflict parties- adding onto
the complexities of the conflict.
•
States.
Most states decide on the how and why to intervene based on various factors. One is the intervening
nation's own capabilities and connection to the conflict. Second, the status and ripeness of the conflict
for resolution, third is the characters of the parties and their decision-making systems, and fourth is
the comparison between the cost of intervention to the cost of doing nothing.
States such as Norway, Switzerland or the USA have repeatedly offered their good offices or
mediation. Switzerland has for instance made mediation an important pillar of its foreign policy. It has
supported mediation processes in two main ways: either as a host or by directly mandating mediators.
As a host, Switzerland has held numerous meetings, including talks between various governments and
rebel groups, from countries such as Indonesia, Spain and Sri Lanka and Syria. At the same time,
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Switzerland has also mandated mediators in processes for countries like Colombia, Sudan, Sri Lanka,
Uganda and Nepal.
Many individual states mediate from positions of relative power and influence over the conflict
parties. When fully engaged, such mediators have considerable access to, and leverage over, the
parties concerned an example being the USA’s involvement in conflicts around the world. Their
standing within the international community can encourage the support from other external actors
that will be necessary to reinforce their efforts at an appropriate time.
It’s also important to note that state actor’s involvement in either intra-state or inter-state conflict
resolution can also negatively impact the conflict as many states will seek to attain their own political
or economic interests through that particular conflict. This will bring on the aspect of added hostility
among conflicting parties especially when there has been a lot of incurred cost of resources (both
finances and military personnel) in sustaining that particular conflict. In this situation, the mediator
will now be forced to mediate a number of other issues and interests other than purely managing the
issues and interests of the disputants.
•
i.
Non-state actors
Inter-Governmental Organizations
The main global actor is the United Nations (UN), but regional multilateral organisations such as the
Organisation for Security and Co-operation in Europe (OSCE), the European Union (EU), the African
Union (AU), the Organization of American States (OAS) and the Association of SouthEast Asian Nations
(ASEAN), as well as sub-regional organisations like the Economic Community of West African States
(ECOWAS), the East African Community (EAC) and the Southern African Development Community
(SADC) also contribute a great deal to conflict mediation.
The UN has mandated mediators in numerous conflicts in countries like Afghanistan, Angola,
Bougainville, Georgia, Haiti, Nepal, Syria and Western Sahara. Most often, mediators are mandated
by the Secretary-General as Special Representatives or Envoys. The UN enjoys specific legitimacy to
mandate mediators based on its almost universal membership as well as conflict resolution provisions
in its Charter.
Regional and sub-regional organisations mediate with advantages of greater proximity to the conflict,
knowledge of and sometimes leverage over the parties. Scholars suggest that regional organisations
have characteristics that in principle make them effective mediators. They are ‘partial insiders’, closely
connected to the conflict at hand, with an intimate knowledge about local conditions, shared norms
or experiences with the parties in conflict, and a stake in the outcome of the conflict. Geographical
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proximity and deep knowledge about the conflict arguably create favourable conditions for effective
mediation. Mediation led by regional organisations has had notable successes example being the
Economic Community of West African States (ECOWAS) in conflict management in West Africa and
the Inter- Governmental Authority on Development (IGAD).
In the last century, the OSCE, EU, and AU have all strengthened their mediation capacities to adapt to
the complex dynamics of conflicts. The AU being able to directly mandate mediators or engage in comediation with partners, such as the UN or other regional organizations in Africa, established the
Peace and Security Council to specialise in promoting peace, security and stability on the African
continent in places like Sudan, DRC, South Sudan and Somalia.
ii.
Non- Governmental Organizations.
The most renowned civil society NGOs active internationally and working in the field of peace
mediation include: ACCORD (South Africa), Berghof Foundation (Germany), Centre for Humanitarian
Dialogue (Switzerland), Conciliation Resources (UK), Crisis Management Initiative (Finland),
Muhammadiyah (Indonesia), Serapaz (Mexico), Swisspeace (Switzerland), the Asia Foundation (USA),
the Carter Center (USA), US Institute of Peace (USA) and West Africa Network for Peacebuilding
(Ghana)
NGOs such as the Centre for Humanitarian Dialogue, the Conflict Management Initiative and
Swisspeace have played important roles in mediation and mediation support in countries like Nepal,
Myanmar and the Philippines. They have the advantage of being highly flexible and able to engage in
a discreet manner often behind the scenes and already early on in a conflict. This makes them an
appreciated mediator or mediation support actor in case the conflict parties are reluctant to engage
with official actors or if there is a specific need for training and capacity-building.
Religious or Faith- Based non-governmental organisations also play a key role in conflict mediation.
Many religious organizations have extensive connections to the grassroots where the conflict takes
place giving them intricate knowledge and access to conflict situations, both with the people and also
leaders of conflicting parties. Examples include; the Community of Sant ’Egidio, the Quakers, Interfaith
Mediation Centre and The Vatican/Holy See in Rome with the Pope successfully mediated the Beagle
Channel conflict that erupted between Chile and Argentina in 1985.
Other religious actors like the Inter- Religious Council of Sierra Leone (IRCSL), founded in 1997, have
taken active roles in promoting reconciliation and mediation efforts and were instrumental in the
negotiation and signing of the Lomé Peace Agreement. When the conflict broke out, both Muslims
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and Christians urged their religious leaders to take a more active role in stopping the violence. The
IRCSL leaders used their religious credibility and influence (involvement of both mosques and churches
was key in the spiritual, cultural and socio-economic development of Sierra Leone before and after
independence) to resolve the conflict peacefully by actively pursuing dialogue with the coup leaders
and the government, listening to their complaints as well as condemning the coup and human rights
abuses committed by the junta.
The Joint Efforts of Both State and Non-state Actors in International Mediation.
a) Case study of Sudan and South Sudan.
Negotiations on Southern Sudan were long thwarted by shifting alliances between the government
and the Sudan People’s Liberation Army (SPLA) and other regional states as they were deeply divided
over fundamental issues of religion and the self-determination of the South.
Competing regional peace initiatives – one led by IGAD generally favourable to the South, and the
other a joint initiative by Egypt and Libya supporting the unity of Sudan – struggled to advance.
Progress came as support for the IGAD process, led by General Lazaro Kipkurui Sumbeiywo of Kenya,
helped contain the rival effort. One critical element was the emergence of an informal “Troika” of
Norway, the United Kingdom and the United States, developed by individuals with deep knowledge
of Sudan. With the United States exerting particular pressure on the parties, the Troika worked to
strengthen the IGAD process and keep other potential mediators at bay. Representatives of the AU,
UN and Italy later joined as formal “observers” of the process as it moved forward to the
Comprehensive Peace Agreement (CPA) signed in early 2005 which later led to South Sudan’s
independence in 2011 ending Africa’s longest running civil war.
b) Kenya 2008 Post-Election Violence Mediation.
The crisis that developed in Kenya in early 2008, after the announcement of contested results of its
presidential elections, was a shock to the international community. Its rapid and violent escalation
prompted a chorus of appeals for resolution from regional and international actors. Recognition of
the need for a unified effort contributed to the establishment by the AU of a Panel of Eminent African
Personalities, composed of former UN Secretary-General Kofi Annan as chief mediator, former
President Benjamin Mkapa of Tanzania and Mrs. Graça Machel, former first lady of both Mozambique
and South Africa.
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The mediation led by Annan, who arrived in Kenya on 22 January 2008 where he remained fully
committed to the effort until agreement was reached on 28 February 2008. He drew upon consistent
support from external actors and this not only facilitated his unique standing, but also reflected a
determined effort on his part. He took time to communicate to all involved actors (including the
United States) that his track was the central avenue for resolving the crisis and asked others not to act
when such action did not contribute to his process. Internal cohesion was helped by the staffing of his
team with officials from the AU and UN, as well as the HD Centre; their shared respect for Annan
contributed to a noted absence of institutional rivalries seen in other hybrid efforts. The urgency of
the crisis encouraged unity of purpose and contributed to Annan’s robust support from within Africa
and also the European Union, United Kingdom and United States.
Classification of Mediators
Exogenous Mediators
This mediator comes from outside the conflict hence they are able to maintain some distance from
the stress and strain of the conflict. This type approaches the task of mediation from a fresher and
independent perspective.
Endogenous Mediators
This mediator comes from within the conflict with the advantage of being prone to the history,
dynamics and politics of the conflict. However, this can affect the efficiency of the peace process as
some endogenous mediators may have other self-interest motives other than purely helping the
conflicting parties to reach an agreement.
Heterogeneous Mediators.
This is interventions of actors having both endogenous and exogenous characteristics.
The Structure of International Mediation.
I.
The Mediation Environment
The concept of ripeness was developed by William Zartman based on his study of ethno-political
conflicts. He had in mind a low-hanging fruit that can only be picked when it is ripe, emphasizing that
there indeed is a correct timing to resolve a conflict. The ripeness theory of conflict is an Alternative
Dispute Resolution theory that helps us in determining whether mediation is the right approach in a
given moment. It is useful to determine whether conflicts are ‘ripe’ to be mediated or whether other
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approaches might be more appropriate as mediation is sometimes not the best form for a peaceful
settlement of a conflict in every situation and at every point in time. There might be moments in which
other instruments might be more promising. The concept of ripeness therefore, helps us to assess
when a conflict is ripe to be mediated and options for conflict managers in case the conflict is not ripe
(e.g. shuttle mediation).
Zartman argues that one of the keys to successful conflict resolution lies in the timing of efforts for
resolution. Parties resolve their conflict only when they are ready to do so—when alternative, usually
unilateral, means of achieving a satisfactory result are blocked and the parties find themselves in an
uncomfortable and costly predicament. At this point, they grab on to proposals that usually have been
in the air for a long time and that only now appear attractive.
The notion of ripeness is critical for policy makers in the post-Cold War era who seek to mediate
disputes in the international arena. It is also highly relevant for conflicting parties themselves as they
assess their courses of action. “Ripeness of time is one of the absolute essences of diplomacy,” wrote
John Campbell
The success of conflict settlement and resolution is attributable not to a particular procedure chosen
but to the readiness of the parties to exploit opportunities, confront hard choices, and make fair and
mutual concessions.
The ripeness theory of conflict states that two conditions are necessary for parties to enter into ADR:
both sides must be in a hurting stalemate and both sides must be optimistic about successful
mediation outcome. Only when these two factors are present is a conflict ripe for ADR.
Hurting stalemate
First, there is an argument that ethnic conflicts are often too intense for effective intervention, hence
combatants should be allowed to exhaust each other, and also their desire for peace to grow, before
intervention is attempted.
In this situation, parties find themselves in a position where they are hurting badly. Yet, they cannot
move away from this positionn as they face the risk of losing face or stakeholders present in the
conflict. They are essentially in a stalemate, one that is hurting them badly. This process and realization
are very important as parties must be aware that the conflict is costing them and that prolonging it
will give them no gain.
Optimistic about an outcome
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Parties must furthermore be optimistic about a possible outcome of a way out. They must genuinely
believe that with the aid of a third party, their hurting stalemate can come to an end. This is an element
that parties must perceive. Impressions of this third party (often a mediator) are therefore very
important. If parties believe their mediator can lead to successful conflict resolution, then the conflict
will be ripe for ADR.
What can be done in case a conflict is not ripe to be mediated? How can mediators contribute to ripen
the conflict? What is shuttle mediation? Mediators can be in a unique position that will require them
to ‘create’ to create the ripe moment by using strategies like shuttle diplomacy. (Whereby they will
engage privately and separately with both the conflicting parties and foster an environment that will
lead to both parties coming together and having the dialogue together as a unit rather than
individually, and eventually even getting them to be in the same room with each other will be
considered progress).
The ripe moment can also be a perceptual event, not one that stands alone in objective reality; it can
be created if outside parties can cultivate the perception of a painful present. If the parties do not
recognize “clear evidence” (in someone else’s view) that they are in an impasse, and the ripeness has
not (yet) occurred, and if they do perceive themselves to be in such a situation, no matter how flimsy
the “evidence,” the ripeness mediation is present.
However, the greater the objective evidence, the greater the subjective perception of a stalemate and
its pain is likely to be, and this evidence is more likely to come late, when all other courses of action
and possibilities of escalation have been exhausted.
II.
Phases in Mediation
The mediation process usually goes through three main phases;
i.
Introduction phase
ii.
Middle phase
iii.
Closing phase
The Introduction phase takes place when the mediator and the conflicting parties lay ground rules for
the mediation process. The conflicting parties lay down their demands, wants, interests in preparation
for the second phases. (All this take place after the conflicting parties have already agreed to a suitable
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mediator and discussed other nitty gritties - like where the mediation process will be held, its
commencing date etc.)
The Conflicting parties must clarify and explain the situation, to determine where exactly the conflict
of interests lie. Then, each party must thoroughly examine their own interests, and set reasonably
aspirations. The parties should then begin to solve conflict together in the next phase.
The Middle Phase- this is when the mediator and the conflicting parties discuss the issues in- depth
and try to find solutions for the same. Parties may begin by first agreeing on an overarching formula
for how talks will proceed. In this phase, parties must be firm about their basic interests, flexible about
how those interests may be satisfied, and remain responsive to the other party's interests. If there are
many issues at stake, then the parties will need to develop an agenda. Usually it is best to put the
easiest issues first on the agenda and can deciding that no agreement is final until all the other issues
are addressed as well. Sometimes, a party's interests can be psychologically and such psychological
linkages must be broken down to increase the parties' flexibility and increase the potential for an
integrative solution.
The Closing Phase- this is where parties agree with the various resolutions, consent to its drafting and
make commitment and strategies for its implementation.
III.
Types / Strategies of Mediation.
The strategies that mediators use affect the outcomes of their efforts to manage conflictThe strategies
mediators use is based on a number of things inclusive of; the context and dynamic of the conflict,
willingness of the parties to accommodate each other in finding a solution, the countries involved or
the available resources for the mediation process.
Three main mediation strategies are; Communicative strategy
Evaluative strategy
Facilitative strategy.
Facilitative Mediation
In the 1960's and 1970's, there was only one type of mediation being taught and practiced, which is
now being called "Facilitative Mediation". In facilitative mediation, the mediator structures a process
to assist the parties in reaching a mutually agreeable resolution. The mediator asks questions;
validates and normalizes parties' points of view; searches for interests underneath the positions taken
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by parties; and assists the parties in finding and analysing options for resolution. The facilitative
mediator does not make recommendations to the parties, give his or her own advice or opinion as to
the outcome of the case, or predict what a court would do in the case. The mediator is in charge of
the process, while the parties are in charge of the outcome.
Facilitative mediators want to ensure that parties come to agreements based on information and
understanding. They predominantly hold joint sessions with all parties present so that the parties can
hear each other's points of view, but hold caucuses regularly. They want the parties to have the major
influence on decisions made, rather than the parties’ attorneys. Facilitative mediation grew up in the
era of volunteer dispute resolution centres, in which the volunteer mediators were not required to
have substantive expertise concerning the area of the dispute, and in which most often there were no
attorneys present. The volunteer mediators came from all backgrounds. These things are still true
today, but in addition many professional mediators, with and without substantive expertise, also
practice facilitative mediation.
Evaluative Mediation
Evaluative mediation is a process modelled on settlement conferences held by judges. An evaluative
mediator assists the parties in reaching resolution by pointing out the weaknesses of their cases, and
predicting what a judge or jury would be likely to do. An evaluative mediator might make formal or
informal recommendations to the parties as to the outcome of the issues. Evaluative mediators are
concerned with the legal rights of the parties, rather than their needs and interests, and evaluate
based on legal concepts of fairness. Evaluative mediators meet most often in separate meetings with
the parties and their attorneys, practicing "shuttle diplomacy". They help the parties and attorneys
evaluate their legal position and the costs vs. the benefits of pursuing a legal resolution rather than
settling in mediation. The evaluative mediator structures the process, and directly influences the
outcome of mediation. Evaluative mediation emerged in court-mandated or court-referred mediation.
Attorneys normally work with the court to choose the mediator, and are active participants in the
mediation. The parties are most often present in the mediation, but the mediator may meet with the
attorneys alone as well as with the parties and their attorneys. There is an assumption in evaluative
mediation that the mediator has substantive expertise or legal expertise in the substantive area of the
dispute. Because of the connection between evaluative mediation and the courts, and because of their
comfort level with settlement conferences, most evaluative mediators are attorneys.
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Transformative Mediation
Transformative mediation is the newest concept of the three, named by Folger and Bush in their book
The Promise of Mediation in 1994. Transformative mediation is based on the values of
"empowerment" of each of the parties as much as possible, and "recognition" by each of the parties’
needs, interests, values and points of view. The potential for transformative mediation is that any or
all parties or their relationships may be transformed during the mediation. Transformative mediators
meet with parties together, since only they can give each other "recognition". In some ways, the values
of transformative mediation mirror those of early facilitative mediation, in its interest in empowering
parties and transformation. Early facilitative mediators fully expect to transform society with these
pro-peace techniques. And they did. Modern transformative mediators want to continue that process
by allowing and supporting the parties in mediation to determine the direction of their own process.
In transformative mediation, the parties, structure both the process and the outcome of mediation,
and the mediator follows their lead.
Issues, Dilemmas and Interests in International Mediation
Issues.
1. Sovereignty Issues- involving adversaries with incompatible claims to a specific piece of
territory.
2. Ideology Issues- focusing on the nature of a political system, basic values or beliefs.
3. Security Issues- concerning frontiers, borders and territories.
4. Issues of Self-Determination and national selfhood in independence conflicts.
Dilemmas.
1. Mediators can be torn between the short-term goal of ending bloodshed vs the long-term
goal of resolving the conflict.
2. Conflicting parties can at times demand for settlements that violate international laws and
norms and are inconsistent with the principles of national and international justice and
fairness.
3. Conflict settlements at times to not ensure reconciliation or removal of the causes of conflict
hence the chance for conflict re-entry is usually high after such agreements.
Interests/ Motives.
At times, both state and non-state actors can get involved as third-party managers in a conflict for
other reasons/ pursuits other than facilitating the conflict management processes. These include;
seeking a positive public image and status in the international system that will foster/help them
achieve their national interests, and non-state actors especially individuals can seek for positive
personal/ professional status that will enhance their political standing in the international arena.
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Nexus between mediation, negotiation, arbitration and litigation.
This section will help us understand the relationship between mediation and the other modes and
practices of conflict management, which include negotiation, arbitration and litigation. These
specific modes and practices of conflict management have the aspect/ characteristic of third-party
intervention (in the case for negotiation, it leads to mediation) hence share various similarities and
differences when contrasted against each other. These can be found in their meaning/ definition,
processes, representation of interests, roles of third-party intervenors, nature of the processes,
process outcomes (settlement or resolution) and ability for post-conflict relationship reconstruction.
Negotiation
Negotiation is a process in which parties with conflicting interest come together to discuss and
decide the outcome which can be adopted to manage and resolve the dispute. When the conflicting
parties fail to reach an agreement or move forward with their conflict resolution process, they will
seek the help of a third party that will help facilitate the whole process. This then develops into
mediation which is a method of dispute resolution in which an independent third party assists the
parties to conflict in resolving their disputes.
Similarities
Both modes involve dialogue among the conflicting parties.
Both modes provide for cooperation among the conflicting parties.
Both modes lead to outcomes that are non-binding.
Both modes require voluntary participation from conflicting parties.
Both modes provide for an environment that fosters post-conflict re-building of relationships among
conflicting parties.
Differences
Negotiation
Mediation
No presence of a third party.
Presence of a third party.
Representatives of the parties to conflict meet
to discuss their interests and issues.
A mediator meets both parties jointly or
separately, to talk about the conflicting issue.
Interests are represented either by the party
members themselves or by the representatives
appointed by them.
A mediator represents and guides the discussion
of the interests of the parties concerned.
Parties discuss and decide a possible outcome,
which is acceptable to both.
The mediator facilitates the process of the
conflict management and this will determine
whether the parties reach an agreement or not
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Arbitration
Mediation refers to a process of resolving disputes wherein an independent third party, assist the
parties involved in arriving at solution, agreeable to all. Arbitration on the other hand is a substitute
of public trial, with no need of going court, wherein an independent third party (arbitrator) analyses
the entire conflict situation and decides binding on the parties.
The key difference between mediation and arbitration lies in the nature of the judgement taken by
the experts. While the decision taken by the arbitrator is binding on the parties, the mediator does
not make the judgement but helps the parties in arriving at an agreement.
Similarities
Both involve a third party in the conflict management process and outcomes.
Differences
Arbitration
Mediation
Decisions binding.
Decisions non-binding
The arbitrator analyses the dispute, hears the
parties involved, gathers facts, evaluates the
evidences and arguments put forward by the
parties and then decides on the conflict.
Involves dialogue and communication between
the parties as they try to address/solve their
conflicting interest and issues.
Only evidentiary hearings, no private meetings
with the arbitrator.
Meeting between the parties concerned and
the counsel takes place jointly and separately.
Arbitration is adversarial in nature; two
conflicting parties against each other.
Mediation is collaborative, i.e. where two
parties work together to arrive at a decision.
Arbitration is a formal process, much like that of
a court room proceeding.
The arbitrators have full control on the process
and the outcome.
The process of mediation is an informal as it
decided on by the conflicting parties and their
mediator.
The parties concerned, have entire control on
the mediation process and the outcome.
Litigation
Also, commonly known as judicial settlement. It is a form/ process of conflict management that
involves the conflicting parties taking their conflict/case to court which will be decided on by court
appointed judges or a panel of judges.
Similarities.
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Both involves the intervention of third-party conflict managers.
Both can be time consuming.
Differences
Litigation
Judicial decisions are binding.
Non-voluntary process. Parties must
appear before the judge when summoned.
Judge can subpoena information from
parties.
Very expensive compared to mediation
Follow strict procedures, rules, structures
and processes.
Emotionally draining and unpredictable
especially during the deliberation part of
the process when both parties have to wait
on the judge to decide/ provide a ruling on
their case and at the same time carrying
the weight of uncertainty as to what the
outcome may mean for both of them.
Does not provide for the opportunity nor
environment for post conflict
rebuilding/mending of relationships
between conflicting parties.
Mediation
Agreements are non-binding unless agreed upon
by the conflicting parties.
Voluntary process that requires the will a
participation of the conflicting g parties for it to
yield any results.
Mediators cannot subpoena information from
their parties.
Less expensive compared to litigation.
Very flexible (the mediators and conflicting
parties have the freedom to come up with their
own structures and way of operation for the
mediation process.
There is always some for of communication and
dialogue between the mediator and the
conflicting parties both in the process of
mediation and also in determining the outcome.
Provides for the opportunity/ environment for
post-conflict rebuilding/ mending of
relationship.
Case study
Endorois Community vs Kenyan Government.
Somalia vs Kenya in the ICJ
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