Mediation and dispute resolution techniques and approaches


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Mediation and dispute resolution techniques and approaches. Léna Salamé, Programme specialist, PCCP coordinator, UNESCO. International Annual UN-Water Zaragoza Conference 2012/2013. Preparing for the 2013 International Year. Water Cooperation: Making it Happen! 8-10 January 2013

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  • Just going to make order in what we all do every day.
  • Conflicts have existed in all cultures, religions, and societies since time immemorial, as long as humans have walked the earth. In fact, they also exist in the animal kingdom. Philosophies and procedures for dealing with conflicts have been part of the human heritage, differing between cultures and societies. Nations, groups, and individuals have tried throughout history to manage conflicts in order to minimize the negative and undesirable effects that they may pose. Conflicts can develop in any situation where people interact, in every situation where two or more persons, or groups of people, perceive that their interests are opposing, and that these interests cannot be met to the satisfaction of all the parties involved. Conflict not always negative” opportunity for change… going away from a status quo Conflict and cooperation are not exclusive. They actually always co-exist to various extents in the same situation. Resolution through a whole spectrum of ADR.
  • General term, used to define a set of approaches and techniques aimed at resolving disputes in a non-confrontational way. It covers a broad spectrum of approaches, from party-to-party engagement in negotiations as the most direct way to reach a mutually accepted resolution, to arbitration and adjudication at the other end, where an external party imposes a solution. Somewhere along the axis of ADR approaches between these two extremes lies “mediation,” and “consensus building”, processes by which a third party aids the disputants to reach a mutually agreed solution.
  • Dispute between Hungary and Slovakia concerning the Gabcíkovo-Nagymaros Project. The initial 1977 treaty contemplated construction and operation of dams on the river Danube for the production of electricity, flood control, and improvement of navigation. In 1989, Hungary suspended and subsequently abandoned completion of the project. Hungary alleged that completion would entail grave risks to the Hungarian environment and Budapest's water supply. Slovakia denied these allegations, and insisted that Hungary carry out its treaty obligations. Slovakia planned, and subsequently put into operation, an alternative project (Variant C) on Slovak territory. Its operation adversely impacted Hungary's access to the water of the Danube. Decision of the court: In addition to a few recommendations, the Court decided that Hungary and Slovakia must negotiate in good faith Unless the Parties otherwise agree, a joint operational régime must be established in accordance with the Treaty Unless the Parties otherwise agree, Hungary shall compensate Slovakia and vice versa The settlement of accounts for the construction and operation of the works must be effected in accordance with the relevant provisions of the Treaty of 16 September 1977 and related instruments. Several important questions were not settled by the ICJ: It did not provide, for example, definitive answers on how the river's water should be divided. It suggested that each side wipe out the compensation claims against the other, and that Hungary pay half of the total construction costs already incurred in order to settle accounts, it ordered neither solution. It left open Hungary's rights regarding the management of Gabcikovo. In 1977 Czechoslovakia and Hungary agreed to build a barrage complex on the Danube River with large dams at Gabcikovo (Czechoslovakia) and Nagymaros (Hungary). According to the treaty, the jointly-owned and -operated system would "strengthen the fraternal relations of the two states and significantly contribute to the bringing about of the[ir] socialist integration." In reality, however, it sparked a controversy between these two neighbors that has plagued Hungarian-Slovak relations for more than two decades. Initially there was little debate in either country on the building of the Gabcikovo-Nagymaros dams, but public opposition began in Hungary in the early 1980s on both economic and environmental grounds. In 1988 large protests against the dams were organized across Hungary, and by 1989 some 150,000 people had signed a petition opposing the project. Finally in May 1989, Hungarian Prime Minister Miklós Németh suspended work on Nagymaros, calling it "a symbol of an outdated economic model and a dysfunctional decision-making process." Although there was some nascent, independent environmental activity in Czechoslovakia regarding Gabcikovo, it did not approach the level of protest in Hungary. This reflects the greater need for cheap energy in Czechoslovakia and the relatively smaller environmental impact. It meant, however, that by the time of the Velvet Revolution in November 1989, Gabcikovo was nearly finished while Nagymaros had barely begun. Bilateral negotiations between Hungary and Czechoslovakia on the fate of the dams began in early 1990. Negotiations foundered because the Hungarians would only discuss how Gabcikovo was going to be dismantled while Slovakia would only discuss how Nagymaros would be built. Gabcikovo also became intertwined in the growing tension between the Czech Republic and Slovakia. Slovak Prime Minister Vladimir Meciar, believing the dams were vital to the future of the country, became one of its most vocal supporters and feared the federal government would compromise with Hungary. Because of the continuing controversy, the Slovak government (within the Czechoslovak state) prepared a number of alternatives. In January 1991, the Slovak parliament voted to begin work on Alternate C. This plan would allow for the Gabcikovo Hydropower plant to operate, albeit at much lower levels than originally envisioned. The Slovaks called Alternate C a "temporary solution" because it was designed to leave open the possibility that the Nagymaros Dam eventually would be completed. Hungary unilaterally terminated the agreement in May 1992. Work on Alternate C continued, and on October 12, Slovakia announced shipping on the Danube would be suspended for several weeks in order to divert the river. Hungary, in turn, claimed that this was a violation of the 1947 treaty setting the river as part of the international border between the countries. The diversion of the Danube set off a flurry of international activities, including several crisis meetings between Czechoslovakia, Hungary, and the European Union (EU). While negotiations were going on, the Slovak foreign minister reportedly told the federal government, "Decide whatever you want, Slovakia will in any case dam up the Danube." The Czechs, however, did not need to decide anything; when Slovakia became independent at the beginning of 1993, the Czechs extricated themselves from the dam controversy. Under intense pressure from the EU, in April 1993 Hungary and Slovakia agreed to submit the dispute to the International Court of Justice (ICJ). By this point, the symbolism of the dams had been firmly set in each country. To Slovakia, the dams represented an important achievement of the Slovak nation in the modern world. The Hungarians linked the dams to the failure of communism and wore their opposition as a badge of solidarity with the environmental concerns of Western Europe. Yet neither of these positions made convincing legal arguments in tune with European norms. In the ICJ case, Slovakia argued from the perspective of the sanctity of international contracts, while the Hungarians relied on an expanded understanding of ecological necessity. The ICJ faced three questions: 1) was Hungary entitled to abandon work on the dams in 1989; 2) was Czechoslovakia entitled to proceed with Alternate C in 1991 and put this system into operation in October 1992; and 3) what were the legal effects of Hungary's termination of the agreement in May 1992? In its Fall 1997 ruling, the Court took as its starting point the characterization of the project in the 1977 agreement as "single and indivisible." Furthermore, since there were no provisions in the treaty for one side to terminate, it was still in force. Therefore, Hungary had no right to act as it did. On the other hand, Slovakia still could not put Gabcikovo into operation. Hungarian Prime Minister Gyula Horn, who had long supported the dams, decided this gave him the political cover to agree with the Slovaks to build a dam, although the ICJ clearly stated that there was no longer any reason to build Nagymaros. The Hungarian-Slovak agreement was concluded several weeks before the Hungarian elections, and opposition to the agreement in Hungary was overwhelming. Horn tried to back away from it, but it was too late and his party (the Hungarian Socialist Party) lost the election. Several important questions were not settled by the ICJ. It did not provide, for example, definitive answers on how the river's water should be divided. Although the ICJ also suggested that each side wipe out the compensation claims against the other, and that Hungary pay half of the total construction costs already incurred in order to settle accounts, it ordered neither solution. Finally, it left open Hungary's rights regarding the management of Gabcikovo. Given the intense opposition of the current Hungarian government to building a dam at Nagymaros (or any where else on the Danube) and the fact that Gabcikovo will not be dismantled, the current status quo seems to be the end point of the conflict. With a new government in Slovakia, it seems likely there will be an agreement that recognizes the situation and focuses on settling accounts. (Wilson Centre, Stephen Deets)
  • The pulp mill dispute was a dispute between Argentina and Uruguay concerning the construction of pulp mills on the Uruguay River . The presidents at the time were Néstor Kirchner (Argentina) and Tabaré Vázquez (Uruguay). As a diplomatic, economic, and public relations conflict between both parties, the dispute has also affected tourism and transportation as well as the otherwise amicable relations between the two countries. The conflict was unprecedented between the two countries, which have shared historical and cultural ties. The River Uruguay forms part of the boundary between Argentina and northwestern Uruguay.  The construction and operation of two paper pulp mills authorized by Uruguay was the subject of this dispute.  Environmental activists and the local Argentinean community claimed for years that the pulp mills pollute the surrounding area.  Since 2005, there were mass protests on the Argentinean side culminating in roadblocks of a bridge spanning the river that connects the two countries. The conflict was brought before the International Court of Justice as a case formally named Pulp Mills on the River Uruguay (Argentina v. Uruguay) . This case presented issues of the delicate balance between environmental protection and economic development (like between Hungary (envt. and Slovakia (devlpt)) On April 20, 2010, the International Court of Justice at The Hague, pronounced its ruling against Uruguay for its violation of the treaty it holds with Argentina regarding the shared river, Rio Uruguay. The IJC ruled that Uruguay violated the treaty by not consulting with Argentina before allowing the construction of a pulp mill, but the court did not consider it necessary for the mill to be dismantled and relocated, because Argentina did not present substantial evidence indicating the mill is contaminating the shared river. Following ruling, Presidents made efforts to meet several times. On 28 July 2010 they agreed to create a binational commission CARU in order to monitor the river pollution officially ending the dispute through a basic agreement that satisfies both societies and the two governments (Cristina Fernández de Kirchner (Argentina) and José Mujica (Uruguay))
  • In the 1973 protocol between the United States and Mexico over the Colorado, the United States agreed to reduce the salinity of the water and ensure an acceptable quality, while Mexico agreed to combat illegal immigration and drug traffic to the United States (Haftendorn, 1999). Canada v/s USA, sharing the benefits from the Columbia River basin: the Columbia River Treaty holds innovative ideas for creating values and sharing the benefits of a river: One example among many others in this very treaty: Canada Stores the water to help controlling the floods in the river. This water is than used for hydropower generation in the US. Canada receives 50% of the benefits to compensate the help it provides. This is possible because the period of floods and that of high demand in power are six months out of phase.
  • The partition of water of the Indus River between India and Pakistan was the cause of a dispute in 1947, which could have led to serious escalation. In 1952, the World Bank acted as a mediator with power, and managed to influence the parties. India and Pakistan started negotiation over the allocation of water (Frederick, 1996). In the Zambezi River dispute, where eleven countries are involved, they reached an agreement to manage and develop the Zambezi resources jointly. The Vatican played the mediator/facilitator and used its authority to influence the parties and promote an agreement (Milich and Varady, 1998).
  • The Federal Government of the United States and the members of the New Mexico/Texas Water Commission, are parties to a mediation process that will deal with broad issues of quality and water planning. The process is confidential and does not constitute a consensus-building process because the environmentalists are not party to the process. In 1969, Argentina, Bolivia, Brazil, Paraguay, and Uruguay reached an agreement, and signed the Plata Basin Treaty. This conflict concerned the Rio del Plata basin with its international and transnational rivers. The treaty did not consider the needs and desires of the local borderland communities and was not implemented because of their mistrust of, and objection to, the treaty. In 1999, it was recognized that in order to have an operational management of the basin it is of the outmost importance to involve the local public and authorities in these processes. In the case of a new reservoir in San Antonio, Texas, a common decision was reached only through the process of consensus building. The purpose of the proposed new reservoir was to augment water supply to the city of San Antonio. A first proposal was not implemented, due to objections by some of the affected stakeholders. When the process was stalled, and no progress could be made, it was concluded that the only way to proceed was through consensus building. All the stakeholders – real estate developers, environmentalists, the armed forces (who had five bases in the area), the Chamber of Commerce, neighborhood groups, civic leaders, and anti-reservoir activists – participated in the process. The meetings were open to the public, and every party was heard. By the end of the process it was clear that the city of San Antonio had no need for a new reservoir, provided it improved the management of the existing one. A policy to manage the existing reservoir was established.
  • Most important because people feel ownership for the process and its outcome from a process and content point of view. On the local level, traditional community-based water management approaches and conflict resolution mechanisms or rivers offer good opportunities, as they are adapted to specific local conditions and are more easily accepted and adopted by the community. Examples of such traditional mechanisms are: The “Arvari Parliament” that was established as an informal decision-making and conflict-resolution body by the people using the river of the small river Arvari in Rajasthan, reviving old Indian traditions (Iyer 2002). The 1000 year old Tribunal de las Agua in Valencia, Spain is another old traditional institution for water management, which is still operational. It was established in 960, under the reign of the Calife of córdoba Abderramán III el Grande. .
  • The Sulha is the Arab traditional way of conflict resolution. It works because of the collective responsibility of the extended family ( hamula ). This responsibility and commitment to preserve the honour and reputation of the family prevents all members of the family (even those who did not participate personally in the ceremony, and future generations) from breaking the customs and laws of the Sulha (Jabur, 1993). The Sulha is usually used in disputes such as family honour, killing, physical harm, or maiming. In desert areas and arid zones we find the use of the Sulha also in water disputes, as among the Bedouins in the south of Israel and the Berbers in Morocco. “Both Berbers and Bedouin follow this Islamic practice of a ritual ceremony of forgiveness. Once the ceremony is performed, the dispute may not be discussed – it is as if it never occurred” (Wolf, 2000). It is an effective and efficient way of resolving disputes in these communities
  • The River-Basin focused approach of TBS has lead to the rejuvenation of seasonal rivulets as perennial rivers. When there was plenty of water in River Arvari, there was natural growth of fish, which continued to multiply. The government wanted to get hold of fish and brought in a contractor. The people resisted and the Government had to cancel the contract. It is not that the local people wanted control over the fish. Far from it! They are all vegetarians and do not eat fish, but they realized that today it was fish tomorrow it would be water.  This incident led to the formation of Arvari Sansad (River Arvari Parliament).
  • Mediation and dispute resolution techniques and approaches

    1. 1. ADR… What, when, where, who, how and most importantly WHY?!! Léna Salamé UNESCO Division of Water Sciences International Hydrological Programme World Water Assessment Programme
    2. 2. Dispute? Conflict?What? Since when?
    3. 3. Alternative Dispute Resolution - SpectrumLitigation … Arbitration … Mediation … Negotiation
    4. 4. Adjudication? Where? And how long!? Gabcikovo Nagymaros Slovakia v/s Hungary
    5. 5. Example of a water case & Adjudication: Pulp Mills on the River Uruguay Argentina v/s Uruguay
    6. 6. Negotiation? Who does this?Any situation in which two parties or morecommunicate for the purpose if influencing theother parties decisions.
    7. 7. Negotiation is a process that…Satisfies our InterestsIs better than our BATNABest of many OptionsIs based on fair StandardsBuilds a good working RelationshipBased on efficient &effective CommunicationResults in a clear & operational Agreement
    8. 8. Creating Values: Examples Enlarging the pie in negotiations1973 Protocol: USA &Mexico over the ColoradoUnited States reducessalinity of water, ensuresacceptable quality Columbia River Treaty: USA and CanadaIn exchange… Canada stores waterMexico combatsimmigration and drug Flood is controlled for USAtraffic Hydro power is produced downstream by USA Canada gets 50% of the benefits
    9. 9. Mediation? Why do we need that?Mediation is a process that employs a neutral/impartial person orpersons to facilitate negotiation between the parties to a dispute inan effort to reach a mutually accepted resolution. Mediation is aprocess close in its premises to negotiation: “mediation is anassisted and facilitated negotiation carried out by a third party”.
    10. 10. Mediation - Examples Indus River Pakistan v/s India in 1947- Assisted negotiation Mediator: World Bank Negotiation started over the- Mediator designs the process allocation of water- Parties own the solution to whichthey feel Zambezi Rivercommitted 11 riparian states Mediator/Facilitator: The Vatican
    11. 11. Consensus building? When does it happen?!“Consensus building” relates to a decision and agreementreached by all the identified parties who have a stake inthe outcome and decision. Through this process, thestakeholders create new and more efficient options toresolve the issue at hand.
    12. 12. Consensus Building - Examples- Brings together all stakeholders concernedUnanimous agreement Reservoir in San Antonio Texas 1st proposal was not implemented- Voluntarily basis Objections of affected stakeholders When meetings were open to all- Creative and efficient stakeholders: it was decided that no reservoir was needed. Policy to manage the old one was established
    13. 13. Traditional Conflict Resolution Or Water Management Approaches Tribunal de las Agua, ValenciaSulha Arvari Parliament
    14. 14. Sulha• From musalaha, reconciliation: hostilities ended, honor re-established, and peace restored in the community.• Two basic elements: rights and honor.• “Resolution of a conflict that involves no humiliation.” (Tarrahdhin)• Used in water disputes, by Bedouins in the Middle East and, Berbers in Morocco.• “Both Berbers and Bedouins follow this Islamic practice of a ritual ceremony of forgiveness. Once the ceremony is performed, the dispute may not be discussed – it is as if it never occurred” (Wolf, 2000)
    15. 15. Tribunal de las Agua, ValenciaThe 1000 year old Tribunal de las Agua in Valencia, Spain is another oldtraditional institution for water management, which is still operational. It wasestablished in 960, under the reign of the Calife of córdoba Abderramán III elGrande.Every Thursday, in front of the Cathedral of Valence, the members of the WaterTribunal meet. The purpose of their meeting is to arbitrate during publicsessions, conflicts related to the distribution of water coming from the eightcanals that irrigate 1700 hectares where oranges, rice, grapes and peach areproduced for the whole of Spain and for export. This ancient « institution »helps avoiding that conflicts between farmers degenerate.It was inscribed in 2009 on the Cultural World Heritage List of UNESCO.
    16. 16. The “Arvari Parliament” or Arvari SansadIt was established as an informal decision-making and conflict-resolution body by thepeople using the river of the small river Arvari in Rajasthan, reviving old Indiantraditions (Iyer 2002).Represents 72 villages, each of which sends two representatives.142 members who nominated by their respective village institutionsPrimary objective: to safeguard Integrated and Water Management efforts of thecommunity of river catchment.Follows Gandhian ethos of participatory, equitable and decentralized paradigm forwater management (Jal Swaraj), where decisions are made at the grassroots not bycentralized institutions.Develop policies and enforces rules to govern the integrated management ofinterlinked natural resources like water, soils and the forest for the wellbeing of thevillagers as well as other forms of life-flora and fauna.Convenes twice a year to deliberate upon best strategies for resource conservationand management issues.
    17. 17. Adjudication The rest of ADRsState names and redefines dispute; issues are narrowed Parties define dispute; issues emergeBound by law and precedent Solution tailored to situationFormal rules of procedure and evidence; search for facts Process, which encourages informal exchange of information, feelingsProcess may take into account cultural differences and Process always takes good account of cultural differences andpsychological consideration psychological considerationParties represented by attorneys Parties speak for themselvesFocus on past to place or deny blame Review of past in order to focus on future, avoids judgmentsJudge or jury decide Parties shape settlementNarrow range of remedies Broad range of remediesWin/lose outcomes Potential win/win outcomesEnforceable, but compliance varies Usually not enforceable, but compliance highCan serve international community by: setting precedent, acting Can serve the international community interest by allowing parties to get atas a deterrent, punishing party found guilty, establishing norms root causes of disputes which do not require, or respond well to, formal judicial processProcess often confuses or damages relationships Process often clarifies or mends relationships; educates partiesProcess is usually costly, scheduled during work hours at Process is usually less expensive, schedule during timeconvenience of system convenient to the partiesProcess is often mysterious to parties, complex An attempt is made to make the process clear, simpleProcess is often delayed Process is usually timely Altered from the Massachusetts District Court Mediation Project. 1986