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MEDIATION

INTERNATIONAL SETTING

MEDIATION

MEDIATION: it is a means of peaceful


settlement of disputes and conflicts with the
Security Council or the General Assembly,
recommending any member or agency as
mediator.(UN Charter, Arts. 10, 14, 36)

PURPOSES OF UN CHARTER
To maintain international peace and security, and to that end: to take
effective collective measures for the prevention and removal of threats to the
peace, and for the suppression of acts of aggression or other breaches of the
peace, and to bring about by peaceful means, and in conformity with the
principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the peace;
To develop friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples, and to take other
appropriate measures to strengthen universal peace;
To achieve international cooperation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language, or religion;

ARTICLE 11, PARS. 2 AND 3


2.) The General Assembly may discuss any questions relating to the
maintenance of international peace and security brought before it by any
Member of the United Nations, or by the Security Council, or by a state which is
not a Member of the United Nations in accordance with Article 35, paragraph 2,
and, except as provided in Article 12, may make recommendations with regard
to any such questions to the state or states concerned or to the Security Council
or to both. Any such question on which action is necessary shall be referred to
the Security Council by the General Assembly either before or after discussion
3.) The General Assembly may call the attention of the Security Council to
situations which are likely to endanger international peace and security.

ARTICLE 12
While the Security Council is exercising in respect of any dispute or situation
the functions assigned to it in the present Charter, the General Assembly shall
not make any recommendation with regard to that dispute or situation unless
the Security Council so requests.

ARTICLE 14
Subject to the provisions of Article 12, the General Assembly may recommend measures for
the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair
the general welfare or friendly relations among nations, including situations resulting from a
violation of the provisions of the present Charter setting forth the Purposes and Principles of
the United Nations.

ARTICLE 15
The General Assembly shall receive and consider annual and special reports from the
Security Council; these reports shall include an account of the measures that the Security
Council has decided upon or taken to maintain international peace and security.
The General Assembly shall receive and consider reports from the other organs of the United
Nations.

SETTLEMENT OF DISPUTES (UN CHARTER)


Article 33
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.
The Security Council shall, when it deems necessary, call upon the parties to
settle their dispute by such means.
Article 34
The Security Council may investigate any dispute, or any situation which might
lead to international friction or give rise to a dispute, in order to determine
whether the continuance of the dispute or situation is likely to endanger the
maintenance of international peace and security.

WHO MAY BRING THE ACTION?


Article 35
Any Member of the United Nations may bring any dispute, or any situation of
the nature referred to in Article 34, to the attention of the Security Council or
of the General Assembly.
A state which is not a Member of the United Nations may bring to the
attention of the Security Council or of the General Assembly any dispute to
which it is a party if it accepts in advance, for the purposes of the dispute, the
obligations of pacific settlement provided in the present Charter.
The proceedings of the General Assembly in respect of matters brought to its
attention under this Article will be subject to the provisions of Articles 11 and
12.

SECURITY COUNCIL
Article 36
The Security Council may, at any stage of a dispute of the nature referred to in
Article 33 or of a situation of like nature, recommend appropriate procedures
or methods of adjustment.
The Security Council should take into consideration any procedures for the
settlement of the dispute which have already been adopted by the parties.
In making recommendations under this Article the Security Council should
also take into consideration that legal disputes should as a general rule be
referred by the parties to the International Court of Justice in accordance with
the provisions of the Statute of the Court.

MEDIATION
The Department of Political Affairs plays a central role in United
Nations efforts to prevent and resolve deadly conflict around the
world.
DPA is the lead U.N. department for peacemaking and preventive
diplomacy.
DPA monitors and assesses global political developments with an eye
to detecting potential crises before they escalate, and devising
effective responses.

The Standby Mediation Team is located in the Mediation Support


Unit of DPAs Policy and Mediation Division and functions as a
resource for the UN system broadly

UNITED NATIONS RESOLUTION NO. 65/283


Strengthening the Role of Mediation in the Peaceful Settlement
of Disputes, Conflict Prevention and Resolution
It is designed to support professional and credible mediation
efforts around the world.
It aims to help parties to strengthen their understanding of
effective mediation, and
to assist mediators in maximizing the chances for success in
mediation.

The said Resolution was adopted by consensus, it recognized the increased


use of mediation, reflected on current challenges facing the international
community in such mediation efforts, and called on key actors to develop
their mediation capacities.
Then the General Assembly requested the Secretary-General, in
consultation with Member States and other relevant actors, to develop
guidance for more effective mediation, taking into account, inter alia,
lessons learned from past and ongoing mediation processes.

In response to such request of the General Assembly and in conformity


with the Charter of the United Nations:
The Secretary- General prepared the UNITED NATIONS GUIDANCE FOR
EFFECTIVE MEDIATION.

UN GUIDANCE FOR EFFECTIVE MEDIATION


It is designed to support professional and credible mediation efforts around
the world.
It aims to help parties to strengthen their understanding of effective
mediation, and to assist mediators in maximizing the chances for success.

It aims to inform the design and management of mediation processes.


It is intended as a resource for mediators, States and other actors supporting
mediation efforts but is also relevant for conflict parties, civil society and
other stakeholders.
It emphasizes the need for a good understanding of mediation and an
appreciation of both its potential and limits as a means for conflict
prevention, management and resolution.

KEY FUNDAMENTALS TO CONSIDER IN MEDIATION


EFFORT:
Preparedness
Consent
Impartiality

Inclusivity
National ownership
International law and normative frameworks, coherence, coordination and
complementarity of the mediation effort
Quality peace agreement.

MEDIATION LOGIC
It is a process whereby a third party assists two or more parties, with their
consent, to prevent, manage or resolve a conflict by helping them to develop
mutually acceptable agreements.
It is a voluntary endeavor in which the consent of the parties is critical for a
viable process and a durable outcome.

Mediation starts from the moment the mediator engages with the conflict
parties and other stakeholders to prepare for a process- and can include
informal talks-about-talks- and may extend beyond the signing of agreements.
A good mediator promotes exchange through listening and dialogue, engenders
a spirit of collaboration through problem solving, ensures that negotiating
parties have sufficient knowledge, information and skills to negotiate with
confidence and broadens the process to include relevant stakeholders from
different segments of a society.

MEDIATION LOGIC
Effective mediation requires a supportive external environment.
A mediator needs to withstand external pressures and avoid unrealistic
deadlines while also developing the support of partners for the mediation
effort.
Not all conflicts are amenable to mediation.

POTENTIAL FOR EFFECTIVE MEDIATION


1.) Main conflict parties must be open to trying to
negotiate a settlement;
2.) A mediator must be accepted, credible and well
supported; and
3.) There must be general consensus at the regional and
international levels to support the process.

MEDIATION FUNDAMENTALS
PREPAREDNESS
Preparedness combines individual knowledge and skills of a mediator with a cohesive
team of specialists as well as the necessary political, financial, and administrative
support from mediating entity.
A well prepared and supported mediator is able to manage expectations, maintain a
sense of urgency while avoiding quick-fix solutions, and effectively respond to
opportunities and challenges in the overall process.

Mediators must: commit resources to respond rapidly and support mediation process;
select a competent mediator with the experience, skills, knowledge and cultural
sensitivity for the specific conflict situation; reinforce the mediator with a team
specialist; provide proper preparation, induction and training for mediators and their
teams; include a balance of men and women on mediation teams.

CONSENT
Mediation is a voluntary process that requires the consent of the conflict parties to be
effective.

Mediators need to create a common understanding with the conflict parties on the
mediators role and ground rules of the mediation.

IMPARTIALITY
It is the cornerstone of mediation- biased mediation process undermines meaningful
progress to resolve conflict.
Mediator should be able to talk with all actors relevant to resolving the conflict.
Mediator should: ensure and seek to demonstrate that the process and the treatment of
the parties is fair and balanced; be transparent with the laws and norms that guide their
involvement; not accept external supports which will affect impartiality; handover to
another mediator if they feel they cannot maintain impartiality.

INCLUSIVITY
Inclusivity refers to the extent and manner in which the views and
needs of conflict parties and other stakeholders are represented
and integrated into the process and outcome of a mediation effort.
Mediators should: Identify the level of inclusivity needed for the
mediation to start and required for a durable peace that addresses
the needs of all affected by the conflict; Communicate with any
party or actor necessary to address the conflict, with the
knowledge of the other negotiating parties; Limit contacts with
actors that have been indicted by the International Criminal Court
to what is necessary for the mediation process; use different forms
of media including social media and opinion polls.

NATIONAL OWNERSHIP
implies that conflict parties and the broader society commit to the mediation
process, agreements and their implementation.
National ownership requires adapting mediation processes to local cultures
and norms while also taking into account international law and normative
frameworks.
In promoting national ownership, mediators should: Consult closely with the
conflict parties on the design of the mediation process; Encourage and enable
conflict parties to inform and consult with their constituencies, including the
rank and file, during the mediation process; Be aware of the specific cultural
approaches to negotiation and communication and leverage those approaches
to the greatest advantage of the process; liaise with and ensure support for
local peacemakers and, wherever appropriate, draw on indigenous forms of
conflict management and dispute resolution; Protect the mediation process
from the undue influence of other external actors, especially with regard to
unrealistic external deadlines or incompatible agendas.

INTERNATIONAL LAW AND NORMATIVE


FRAMEWORKS
Mediation takes place within normative and legal frameworks, which may have
different implications for different mediators. Mediators conduct their work on the
basis of the mandates they receive from their appointing entity and within the
parameters set by the entitys rules and regulations. Thus, United Nations mediators
work within the framework of the Charter of the United Nations, relevant Security
Council and General Assembly resolutions and the Organizations rules and
regulations.
Consistency with international law and norms contributes to reinforcing the legitimacy
of a process and the durability of a peace agreement. It also helps to marshal
international support for implementation.

Mediators must be briefed and familiar with the applicable international law and normative
frameworks and should: Be clear and convey their mandates and the legal parameters
applicable to their work; Ensure that the parties understand the demands and limits of
applicable conventions and international laws; Ensure that communications with the conflict
parties and other stakeholders on legal matters and normative expectations are consistent; Be
clear that they cannot endorse peace agreements that provide for amnesties for genocide,
crimes against humanity, war crimes or gross violations of human rights, including sexual and
gender-based violence; amnesties for other crimes and for political offences, such as treason
or rebel-lion, may be considered and are often encouraged in situations of noninternational armed conflict.

COHERENCE, COORDINATION AND COMPLEMENTARITY OF


THE MEDIATION EFFORT
Coherence encompasses agreed and/or coordinated approaches, while complementarity refers to
the need for a clear division of labor based on comparative advantage among mediation actors
operating at the different levels.
Mediating organizations must: Mediation processes should have a lead mediator, preferably from a
single entity. Mediation initiatives with two or more entities should be based on a coherent
mandate from the relevant entities with a single lead mediator. This provides clarity, minimizes
forum shopping by the conflict parties and facilitates coordination and the development of a
coherent mediation process; The decision regarding leadership should be reached through
consultations between the relevant entities, taking into account the conflict context and based on
comparative advantage. Proximity to the parties should be neither dismissed nor taken for granted
as an automatic advantage.

QUALITY PEACE AGREEMENTS


Peace agreements should end violence and provide a platform to achieve sustainable peace,
justice, security and reconciliation. To the extent possible in each situation, they should both
address past wrongs and create a common vision for the future of the country, taking into
account the differing implications for all segments of society. They should also respect
international humanitarian, human rights and refugee laws.
To achieve a quality peace agreement, attention must be paid during negotiations and
implementation to the process, substance and institutionalization of mechanisms that
provide for the non-violent resolution of the conflict and prevent re-emergence of violent
conflict. Mediators, conflict parties, other stakeholders and support actors should consider
the following criteria: The agreement should aim to resolve the major issues and
grievances that led to the conflict, either by addressing the root causes directly in the
agreement or by establishing new mechanisms and/or institutions to address them over
time through democratic processes.

JULY 31, 2014


The General Assembly adopted Resolution 68/303

Strengthening the role of mediation in the peaceful settlement of


disputes, conflict prevention and resolution

Recalling Chapter VI, including Article 33, of the Charter, and


other Articles relevant to mediation, as well as Chapter VIII of the
Charter and other Articles relevant to, inter alia, the role of
regional and subregional organizations in mediation,

Encourages the use, as appropriate, of the United Nations


Guidance for Effective Mediation1 in mediation efforts, in
accordance with the purposes and principles enshrined in the
Charter