28. Mediation in the international arena

6 Apr

Mediation in the international arena

1. In a world as interconnected and interdependent as it is today, peaceful conflict management is one of the great contemporary challenges, especially if one considers that in the present international legal order, the use of weapons by a State or a group of States is allowed for self-defence. Also, in the event of a threat to international peace and security in accordance with the UN Charter, the Security Council can impose interim measures or sanctions, which may range from military to economic and diplomatic.

2. In recent years, the methods of peaceful settlement established in the Charter of the UN have been directed towards mediation. The UN has also applied the method of “Good Office.”

3. In this dynamic the mediator may be a Head of State or Government or an international outstanding personality, appointed by mutual agreement of both parties, and who can provide States in dispute with settlement alternatives. His proposals, of course, are not binding for them, but can help to find solutions in an atmosphere of good faith and goodwill.

4. The purely theoretical distinction between good office and mediation is that the former is limited to bringing the warring or disputing States to open direct negotiations, while the second goes further, proposing alternative solutions to the problem. The manager of good office, if it expresses its opinion on the matter of substance, became the mediator, which can occur frequently in the course of good office.

5. Mediation is halfway between the good office and conciliation because it does more than bring the parties in conflict, but fails to make a report with the proposed solutions after studying the situation on the ground.

6. Mediation is a method of diplomatic-political character, as are also direct settlement, good office, and commissions of inquiry and conciliation. Mediation differs from legal methods (arbitration and judicial settlement) because the latter judgements are binding on the parties. In mediation, a proposed settlement is in the opinion of the parties not binding. For a successful mediation, three factors are essential: a) the motivation of the parties in dispute to resolve the conflict; b) the opportunity for the mediator to be involved and to act; and c) adequate knowledge of the dispute by the mediator.

7. Mediation refers to the substance of the matter and proposes ways and means for a solution acceptable to both parties by establishing the facts based on law and comparing conflicting aspirations by both parties in order to move to a compromise.

8. The UN “Good Office” is more spontaneous, while mediation stems from an international understanding that the mediator is granted authority to proceed in a particular way. Although there is a State’s right to “Good Office” or mediation, unless it is contained in a legal instrument that obliges its signatories to resort to a specific method where differences occur, it is generally accepted as an act of a friendly nature in all cases.

9. As a method of peaceful settlement, mediation is entered in both the UN Charter and the OAS. Also, there is “collective mediation” by a group of States which has proven to be an effective tool to settle disputes.

10. For the effectiveness of mediation, it is essential for the mediator to have a wide knowledge of the dispute and a deep understanding while applying a systematic and consistent management of the mediation method to be applied. It is essential to effectively locate the right time for mediation.

11. The mediator should have a thorough knowledge of the states involved in the dispute (interest, history, culture, etc.) and also of the political leaders of the States involved. He must also be fully aware of the motives and background of the conflict. The mediator cannot in any direct way have a tangential interest in the conflict or on issues that are in dispute.

12. Mediation can effectively resolve conflicts and disputes, reduce hostilities and generally enable countries, organisations or individuals to address their differences peacefully, and even constructively.

© by Odeen Ishmael

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