This section examines how to assist stakeholders in the negotiation process. Its objectives are to:
provide a guide through the negotiation process, up to the final agreement.
It is important to remember, that this section presents an idealized version of a negotiation process. A particular negotiation will unfold in ways that depend on the unique circumstances. As a mediator, it is important to be prepared with the necessary knowledge and skills to assist the negotiating parties.
The voluntary participation of all key stakeholders is fundamental to a collaborative approach to managing conflict. One group's decision to negotiate is only effective if the other parties also feel that it is in their best interest to do so. There can be many reasons why people are reluctant to negotiate, even when they are generally willing to find a joint solution. Examples include outstanding fears, major difficulties in communication, and fixed perceptions about opposing parties.
Mediators need to be aware that pursuing negotiations does not necessarily imply that a party sincerely wants to reach negotiated solutions. Parties often engage in superficial negotiations for their own hidden purposes, such as leading other parties to believe that something is happening, when actually it is not, or holding out for time.
Negotiations of any form are not a mechanical process. Nor are they necessarily easy. Tension, frustration and emotion will probably arise, no matter how carefully or early mediators prepare. People may enter the process slowly and fearfully. There may be uncertainty, distrust or anger towards other parties, and this may only become clear when groups meet face to face. One of the mediator's major tasks is to help build trust among the parties and to promote mutual learning that helps overcome strong emotions.
Those who are politically marginalized and highly dependent on the resource base may feel exposed and that they are taking a great risk. The negotiations may show both their hopes and their fears in protecting their families, friends, livelihoods and culture. While some people may be genuinely willing and committed, others may be putting on an act, deceiving or testing relationships. Members of a group may start to feel suspicious of their representative in the negotiation process, and fear that he/she will end up taking "the other side" while their own interests suffer. This may change the whole process, causing some people to reconsider their commitment or react negatively. The outcomes for some groups are often significant, with high risks and potential benefits from the process. Understanding these realities is essential. Mediators supporting the process must understand how sensitive and serious these negotiations are for the groups involved.
Mediators must also remember that the people participating in negotiations are usually not the only ones involved in making the final decision. Conflict parties usually represent and are responsible to wider groups of people (family, social group, community), which are their constituencies.
These constituencies must have sufficient opportunity to contribute to negotiations, and need to be kept informed about the changes or options developed during negotiations. They must also be informed about the possible solutions or agreements that come up in the negotiation process. The final proposed agreement that reaches them should not be a surprise to them.
The negotiation process involves three steps:
Step 6: Preparing negotiations;
Step 7: Facilitating negotiations;
Step 8: Designing agreement.
Milestone C has been successfully completed when the negotiation parties have listened to and considered each other's concerns and interests, jointly developed agreements on how to manage the conflict, and agreed on how these will be implemented and monitored.
Negotiations need careful preparations from all sides. The various negotiation parties and the mediator must:
inform people about the negotiation process: mediators need to inform stakeholders about the negotiation procedures, build participants' ownership, and keep their expectations realistic;
help choose the right place and time for negotiations: mediators need to underline considerations (including through asking key questions) about the setting, time, place, etc.
7.2.1 Informing people about the negotiation process
Mediators need to let stakeholders know what is likely to happen during the negotiation process. A good start is for the mediator to develop the negotiation agenda jointly with the stakeholders, or at least to make sure that it is accepted by all.
Helping people to become owners of the process: Facilitated negotiation or mediation needs to be designed in ways that:
are sensitive to culture, gender, power and other relevant social dimensions. This requires working hard to overcome the bias that such power differences bring.
Informing participants of the range of options: The mediator has to make all the parties understand that the best solution may not yet have been found. Parties often enter negotiations in the belief that they have already selected the best solution while they were brainstorming settlement options. They now expect merely to have to persuade - or force - the other parties into agreement. The mediator's task is to remind all parties to focus on their underlying interests rather than their positions. It may help to remind them gently to take each other's needs and interests into consideration.
The mediator needs to help people question the assumptions that underlie the way they frame the conflict. Examining the conflict from many points of view, by looking at the perspectives and motivations of the other sides, helps the stakeholders to reframe it (change their perspectives).
Keeping expectations realistic: The mediator also has to help the conflict parties understand that negotiations are an open-ended process: consensus building and reaching agreement take time. If the conflict involves only a single issue or two parties, solution may require only a few hours in a single meeting. More complex issues involving many stakeholders may require a series of meetings, and it may take many months to address all the issues. If complex differences in values, relationships or underlying interests are involved, collecting the relevant information or reaching consensus may need more time and be less predictable.
Building legitimacy: Some groups may be unwilling to enter negotiations because they do not accept that the other stakeholders have legitimate interests. There are many ways of questioning a group's legitimacy. One group may claim that an opposing group is not a key stakeholder. For example, an international conservation organization may be said to be too remote from the conflict site, or migrants may not have resided in an area long enough. Some groups may accuse others of being too narrow in their interests, and of failing to consider broader nation-building needs or goals. A particular group may be seen as representing only a small minority of interests.
Actions that address the question of legitimacy include:
seeking other influential and reliable individuals or organizations to speak on behalf of a group.
Building trust: Negotiation requires that information be exchanged in order to meet the interests of all parties.
People tend to disclose information about themselves only when they are sure that the recipient of that information is not going to use it against them.
7.2.2 Choosing the right place and time for negotiations
The mediator may want to involve the conflict parties in decisions regarding where and when to meet. The environment chosen for negotiations may significantly affect the way in which conflict parties feel and communicate. Generally, it should be a neutral place where no party has strong emotional ties or control, and where everybody feels comfortable.
A mediator who is an outsider might want to find out beforehand what would be the best seating arrangements to promote consensual negotiations among the particular parties involved. Seating should normally emphasize the equality of all participants. For example, seats should be the same size and design, no-one should be in stronger light or heat (or further from the door or window) than others, and disputants should not be seated opposite each other.
Time limitations that may affect when the meetings are held should also be considered. These include farming or harvesting schedules, and religious or other holidays. Scheduling is very important when different resource users are trying to make use of the same area, such as when fishers, pastoralists, foragers and farmers are contending use of a wetland. Deadlines that set when an agreement must be reached need to be respected. Some political and administrative deadlines incur negative consequences if they are not met.
Box 7.1 summarizes important issues to consider when preparing a negotiation process.
BOX 7.1 USEFUL QUESTIONS FOR PREPARING A NEGOTIATION PROCESS
Cultural provisions and protocol
There are no set designs or recipes for mediating negotiations. The process and substance of negotiations must meet the needs and particular circumstances of the specific situation. When progressing through negotiations, mediators should try to follow a series of clear steps, while remaining sensitive to the dynamics of group interactions, the specific circumstances and issues of equality in participation. Great care is needed, especially for external mediators who might be unaware of much local history, cultural reference points, proverbs, etc. External mediators may not grasp the cultural context of what is said, and cultural context can be of great relevance to local participants, for example, sometimes people need to discuss other grievances or opinions before they can deal with the heart of a conflict.
Although negotiating paths are not always direct, the process is ideally characterized by five main stages, which are marked by the specific activities and achievements shown in Table 7.1
TABLE 7.1 ACTIVITIES AND ACHIEVEMENTS IN NEGOTIATIONS
Stage and main activities
1. Setting the stage: confirm and refine the agenda, clarify roles, develop trust and define ground rules.
Mediator has clarified his/her role and functions, and has set (jointly with stakeholders) the ground rules.
2. Providing space for stakeholders to state their cases and talk about their interests.
Each stakeholder has listened to the other stakeholders' framing of the conflict.
3. Reframing the conflict: help the stakeholders to shift their own assumptions and priorities regarding the conflict, looking for common or mutual advantage.
Through the process of reframing, stakeholders have agreed on one or more shared interests on which to build collaboration.
4. Expanding options that might provide mutual gain.
Stakeholders have developed a list of options to explore.
5. Assessing options and reaching agreement on acceptable options for managing critical issues.
Stakeholders have agreed the acceptable options on which to build a final agreement.
7.3.1 Setting the stage
At the beginning of negotiations the mediator needs first to address the participants' basic needs for comfort and safety. When entering negotiations, disputants are often emotionally stressed, and the mediators therefore have to set a positive tone. This includes, for instance, acknowledging the parties' willingness to cooperate and try negotiations to settle the conflict, or reassuring them of the mediator's impartiality towards the issues and neutrality towards the parties. If culturally appropriate, the mediator may also choose to ask the parties directly how they feel about being engaged in negotiations. An early acknowledgement that stakeholders are uncomfortable may reduce tensions and help them to relax and focus on the substance for negotiations.
Clarifying roles: The mediator should then define the negotiations and his/her role in them. Even if the mediator's role has already been clarified with the individual parties, it is important for them to hear the mediator giving the same information in the presence of other parties.
The role of the mediator is to:
observe strict confidentiality regarding statements and behaviour.
Refining the agenda: Later on in the introductions, the mediator should revisit the agenda to check whether it contains all the issues that the parties want to discuss. Mediators need to remember that cultures differ in their styles of public speaking and negotiations. In many places people are used to having many things going on at the same time. In such places, there is no great concern about maintaining a recognized order as to who speaks next. In other cultures, scheduling and order are overriding concerns. Only one person can speak at once, and people speak in a preset order (e.g. according to whoever first raised their hand).
Whatever style is adopted, the mediator has to make sure that everyone has a chance to speak from the beginning. As many people will have similar concerns, this may give people their first idea of sharing interests and concerns with others.
Building trust: It is essential that the mediator creates a supportive, open and respectful atmosphere for the disclosure of information, including - if culturally appropriate - the sharing of feelings. Feelings may be indirectly revealed in the ways in which the different parties present information. The importance of building trust in negotiations cannot be overstated. Where there is conflict, people often do not trust each other at the beginning of negotiations. This means that stakeholders question the truthfulness or accuracy of each other's statements and behaviour. When trust is low, the mediator can encourage stakeholders to make moves that increase their trust in each other. The following are ways of building trust:
Stakeholders can be asked to clarify their assumptions about how other stakeholders use or need the resource under question, how they perceive their own attitude towards the other parties, how they perceive the other parties' attitudes and motivations, and how they think the other parties perceive them.
Discussing how the negotiation process can gradually build trusting relationships, through a series of promises followed by actions that meet those promises, helps to reinforce the belief that commitments will be carried out.
A series of checks can be established to assure that trust endures throughout the negotiation process.
Participants can be asked to describe what is meant by trustworthy behaviour, and to identify where there has been trust in the past, and what spoiled it. At this point, any assumptions about trust in their past relationships can be usefully explored.
Agreements can be built steadily, with constant checking that stakeholders are confident that they or their group will be able to follow through with any changes.
The consequences of breaking trust in the short and long term can be assessed. Promises for future action can be restated in the agreement, and the consequences of not keeping these promises should be made clear.
BOX 7.2 TRADITIONAL MEETINGS
Cultures and communities differ in their ways of holding meetings or assemblies, including those aimed at negotiations. Such meetings may follow well-established norms, with which local people are very familiar.
People then know their roles and can predict how the meeting and its decisions are likely to go. Procedures may vary widely. Discussions may be limited to certain individuals, or everyone present may be entitled to have a say. People may speak normally, or they may raise their voices, try to speak at the same time, or try to shout one another down. The information covered at the meeting may be limited to one issue, or it may be very wide-ranging.
The community's organization and structure also come into play. In many settings, cultural diversity is less important than wealth or power diversity. For example, the meeting may not allow poor people and women to speak, or even to be present or represented. Usually, whoever calls the meeting, decides where it will be held, sets the agenda and has the power to control the meeting itself. But powerful individuals who try to dominate a meeting sometimes find that less powerful members gain strength and confidence. They may start to voice questions or views that are in contrast to those of the powerful people controlling the meeting.
In multicultural settings, selecting whose cultural rules prevail may become a major issue. If the mediators follow one rule, other parties may be upset and feel dominated by one particular group and its culture. People interacting across cultures usually have to adapt to new meeting contexts. The meeting site may be very important.
Thus, it may not always be desirable to follow all cultural rules. For example, disadvantaged groups may challenge cultural rules that seem to keep them in subordinate positions in daily life. They may be chased away from meetings of "notables", or forced to sit on the edges of meetings.
In a negotiation, the mediator has to decide whether to follow the traditional, local way of addressing issues, or - as part of the participatory process - to adopt more equitable methods. The challenge for mediators is to help equalize power without appearing to be a threat that is aiming to change the whole culture of the community.
Opening paths of communication: Good communication means people are actively listening to each other, and everybody has a chance to speak. This is key to creating and maintaining a setting where agreements can be reached. To support good communication, the mediator may need to work out some ground rules with the participants. These rules can be brainstormed by asking the participants how they would like to be treated by others during the negotiations. The mediator needs to explain that it is his/her role to reinforce these rules whenever necessary during the negotiation process.
The mediator should make clear that all parties must be heard. It is also important that threatening statements and behaviour are controlled. The mediator must be sensitive to the variety of ways in which threats can be made. This requires paying attention to non-verbal communication, such as eye contact, sitting posture, facial expression and hand gestures. Non-verbal communication plays a significant role in indicating the underlying feelings or emotions behind a speaker's words.
The mediator should also be aware of rising emotions. These too are signalled by non-verbal communication, and mediators should note whether they are helping or getting in the way of negotiations, and should control them when necessary. This is especially challenging when the mediator comes from another cultural background, or simply does not understand local relationships.
The mediator manages the ground rules and may interrupt proceedings if necessary to give feedback. Mediators should also pay close attention to what happens outside the proceedings. Participants should be encouraged to give feedback as soon as they feel that a rule has been violated.
BOX 7.3 SUGGESTED GROUND RULES
7.3.2 Providing space for stakeholders' statements
After the introduction, the second phase in the negotiations starts with the mediator inviting the parties to state their cases by presenting their interests and views publicly.
During this early stage of negotiations, emotions may rise. A main task for the mediator is to manage these emotions. The expression of emotion - when it does not become aggressive - may help to create understanding among the stakeholders about each other's needs and fears.
The mediator's role is crucial at this stage of the negotiation process. It is important that the mediator helps the stakeholders to change their perceptions about a conflict situation, and about what solutions or ways forward may be possible. The mediator has the power to move the process forward constructively by allowing weaker parties to present their views fully within the negotiation setting. However, such leverage power needs to be carefully handled so that stronger parties do not feel that the negotiation process is biased against them. In particular, the mediator should encourage the stakeholders to:
talk about their own viewpoints, fears and needs, rather than wondering about the viewpoints, interests and needs of others;
focus on finding mutually agreeable outcomes;
repeat back what they have understood from another person's statement - this helps clear up misunderstandings and forces conflict parties to "put themselves in the shoes of the other";
rephrase insulting statements in ways that identify key concerns and fears without repeating the insult.
TRAINER'S NOTE: It may not be appropriate in all cultural settings for conflict stakeholders openly to address their cases in the presence of other stakeholders. It may be better for the mediator to summarize the main perceptions learned during shuttle consultation prior to the negotiations, and to ask the different stakeholders to confirm these summaries.
During this challenging stage of the process, a mediator may be asked to take on different roles. If a mediation team is being used, different team members may take on different roles. Teams need to clarify these roles, and the divisions among them, in advance. For example:
observers may feed back to the mediators when tension arises among stakeholders who are not directly involved in but are present at the negotiations;
one team member may document the discussions for use as clarification later on.
7.3.3 Finding common ground
In the next phase of the negotiation process, individual groups present their analyses of the issues. Ideally, this process leads people to narrow their differences, allowing the exploration of possible outcomes where all parties stand to gain. The mediator may draw on any of the ideas or results gained from earlier conflict analysis to assist participants in discussing their issues and interests.
After the groups have presented the issues and discussed their own underlying interests in each, the mediator requests the participants to produce a list of interests and combine them into a few common categories. From each category, the participants may then begin working together to formulate a concise common goals statement that integrates all the central points (FAO, 2002). This statement contains the objectives that they will work towards. Developing a common goals statement is an effective way of helping parties to focus on their interests, rather than their positions, and to explore similarities, rather than differences.
An example of a common goals statement is provided in Table 7.2 (righthand side). In this example, negotiations between two communities are being mediated in order to determine a mutually acceptable boundary. All the issues have been merged into three categories: boundary, access and resource use (lefthand side). The participants have agreed that the common goals adequately address all of their common interests. Reaching agreement on how to achieve these common goals then becomes the focus of negotiations (FAO, 2002).
TABLE 7.2 EXAMPLE OF A COMMON GOALS STATEMENT
1. Fear that a formal boundary will not be established fairly. Key question: Should the boundary be measured from the middle of the river or from the riverbank?
1. We will develop an agreement that determines a formal boundary between our two communities, given the changing nature of the river.
2. Both communities rely on access to a forest patch, one for grazing and the other for cultivating toxic plants used in religious ceremonies. Each group's use of the patch detracts from the other's.
2. We agree that we must find a solution that allows both of our communities regular access to the forest patch, as it serves important functions in both.
3. An upstream community has been overcutting the timber resources, which has contributed to floods that change the way the river flows.
3. We recognize that we must invite the upstream community to participate in some way, as their resource use practices are contributing to the problems that we are having today.
Source: FAO, 2002
It is important to remember that in almost every negotiation, stakeholders will have more than one interest. Most groups have multiple interests from which the mediator has to identify common interests on which to build collaboration.
7.3.4 Expanding options
Following the common goals statement, the next step in negotiations is to identify and explore the widest range of possible options for achieving these goals. Remind the participants that to be acceptable, the options for settling the dispute must satisfy the interests of all the parties.
Participants can imagine options either by focusing on one issue at a time or by combining several issues into groups of common themes.
Creative thinking is sometimes promoted by changing the group dynamics: a mediator may consider bringing in secondary stakeholders or an outside resource person, or splitting the stakeholder groups into smaller subgroups.
The following are some other procedures that a mediator can use to generate settlement options (Moore, 2003):
Brainstorming (discussed in detail in Section 6.3.1).
Vision building: Each party creates an ideal vision of what a workable solution or relationship might look like in the long term. The visions are then presented to all the other parties. Any common points that the visions entail should be noted. Once a common vision has been agreed, the parties should identify the problems that are stopping them from reaching it.
Model agreements: This procedure identifies and uses experiences from other similar conflict situations as starting points or models for developing agreements. Parties who are not involved in the present conflict are contacted and asked how they reached agreement and what their agreement looks like.
Single-text negotiating document: One person drafts a settlement document that satisfies the majority of interests and resolves the conflict. The draft is circulated among the participants for comments and revisions. Each party has the opportunity to change the text so that it better meets its own interests. Gradual changes often result in a single text that is acceptable to all.
7.3.5 Assessing options and building consensus
At this stage, the parties need to reassess how well their interests will be satisfied by any one of the options or combinations of options that have been generated collaboratively. Assessment aims to help the disputing stakeholders move from a potentially long list of options to realistic agreements that they will commit to. For this to happen, the following steps need to be taken:
psychological closure, if necessary.
Developing and using criteria may help the process of deciding which options are most likely to be satisfactory to all groups. It also ensures that there are fair standards for decision-making. The type of criteria may vary and can include:
opportunities and risks.
Assessing options against criteria: A decision grid can help the analysis and comparison of alternative solutions through the help of indicators.
BOX 7.4 AN EXAMPLE OF ESTABLISHING CRITERIA FOR ASSESSING OPTIONS
A government requirement to conserve a number of rare and endangered animal species led to an area of forest being proclaimed a protected area. Fear of human disturbance to the forest then led the agency in charge of managing it to ban all use of the site by four neighbouring communities. All of these communities had traditionally used the forest area for collecting plant material and hunting. After five years, the agency found it impossible to enforce its ban on poaching and plant collection. Not only were the enforcement guidelines ineffective, but conflict and bad relations had also developed between the communities and the agency. These bad relations began to affect other activities inside the protected area (e.g. constructing tourism infrastructure, obtaining local government support, etc.).
An NGO was asked to facilitate negotiations among the various user groups. After discussing the interests of the different parties, the NGO decided that a common goal was to revise the management rules of the site. After brainstorming management approaches, a number of existing and possible new management guidelines were listed. To assess these options, the stakeholders agreed to the following criteria. Each option had to:
Parties should also be encouraged to look closely again at their BATNAs (Section 6.3.2). Each party needs to ask itself whether it is better off with or without the proposed agreement.
Through this decision-making process, the parties should be able to identify one option that they can all support. This would be the ideal outcome to a conflict management process - reaching agreement through consensus. The degree to which interests are met determines how strong the agreement will be. An agreement that all can support has the best chances of being held.
The mediator may want to work towards the best possible agreement to resolve the factors that cause conflict. However, the parties in conflict may prefer partial settlement to no settlement at all. A conflict that has been settled differs from one that has been resolved because settlement is often only partial, and the conflict or its causal factors remain present. However, there is a whole range of possible positive outcomes from negotiations (Moore, 2003). Deciding whether a conflict has ended may only be possible after some time. The following are some of the possible outcomes of the conflict management process:
Compromise: Parties share the gains and losses in order to reach agreement.
Experimental or trial decisions: Parties are unable to reach a permanent decision and agree to a temporary settlement that will be tested and evaluated at a later date.
Procedural solutions to major issues: Parties agree on a process through which they can obtain a solution to a dispute.
Partial settlement: Parties agree on many issues, but continue to disagree on others.
Continued negotiations: Parties agree to disagree. They want to continue negotiations, sometimes by calling in a third party to help them reach a binding decision.
Confirming the agreed option(s) with a larger constituency: The parties to the conflict need time to confirm the agreed options and obtain support from their constituents. One of the greatest pitfalls in negotiations occurs when the negotiator for one of the parties exceeds his/her authority in reaching agreement. For example, government or public officers involved in conflict management may have to obtain agreement and authority to act from their superiors or agencies. This is particularly likely in situations where change to policy and administrative practice is required.
If negotiations are to be completed at one meeting, the mediator calls a break to allow the representatives to discuss the agreement with other group members who are not participating directly in the meeting. When negotiations continue for many days or months, such discussion with constituents may take place continuously or at critical points throughout the process.
Mediators may therefore want to break up the negotiation process regularly, especially at important times. The final agreement should not be worked out until all the representatives have assured each other that they have the mandate and support of their constituencies.
Mediators might sometimes need to help representatives work with their constituencies, or explain to each other the various constraints imposed on them by administrative or policy practice. Mediators might also help decide who from the wider constituencies should be involved in the final agreement.
TRAINER'S NOTE: When negotiation parties agree on a conflict settlement option, they need time to reflect on the decision and seek the confirmation and support of their wider constituencies. Lack of effective procedures for constituent approval can cause the breakdown of negotiations.
Achieving social, psychological closure ("saying goodbye to strong emotions"), if necessary: Social, psychological closure means that conflict parties are sufficiently satisfied with their participation in and/or the outcome of the negotiation process to be willing and able to leave the past behind (to disconnect emotionally from the past). Achieving agreement on issues is sometimes not sufficient to end a conflict and ensure that the agreement will be implemented. There may still be anger, pain, sadness and other strong emotions among the parties. In cases of partial settlements, especially where the settlement of very contentious issues has been delayed for the future, the contending parties may still regard themselves as rivals or enemies.
To be psychologically able to "close a case" often requires such additional efforts as making peace inside oneself, using sincere words to communicate apology or regret, and other specific actions to address the hurt that conflict causes to relationships among the different parties. The following actions may make it easier for some people to come to terms with the past and start looking to the future (Moore, 2003):
acknowledging what has happened; once agreement has been reached, the involved parties can confirm the nature of the agreement among themselves, and can ensure that all other interested parties (and the wider public) are aware of what has been agreed. This is a crucial phase in many communities where people do not use reading and writing to communicate agreements;
accepting ownership of the potential or actual consequences of negative behaviour;
respecting and acknowledging the desire for a more positive or productive relationship in the future;
offering sincere apologies;
requesting forgiveness or reconciliation.
TRAINER'S NOTE: Culture is always a significant factor when considering approaches for bringing a conflict to an end. Different societies, groups, agencies and organizations have different ways of formally closing conflict. In a community, this may mean ritual meals, symbolic speeches, blessings from priests, prayers or other reconciliation rituals. For an organization, it may mean a formal statement to a senior official, which is copied to others and kept on file. In addition to various closing procedures, the agreement should always be written down so that it can be revisited and referred to later on, if necessary.
Mediators should support the design of an agreement only when the conflict parties have agreed about the options that they want to pursue collaboratively and have received approval for the negotiated solution from their own constituencies. Depending on the nature of the agreement, the following steps may need to be taken:
reaching final agreement.
7.4.1 Implementation considerations
Once there is agreement on the way forward, the parties must consider the details of implementing that agreement. Key questions that need to be discussed and confirmed include:
How will the stakeholders ensure that the agreement will be acted on?
Does the implementation of the agreement require the formal involvement of specialists or groups, such as administrators, leaders of resource user groups, and community political leaders?
How will the parties manage any unexpected results from the agreement?
What monitoring mechanisms will be established to ensure compliance with the agreement?
What is the mediation team's role in monitoring? Are there local neutral or trusted monitors?
7.4.2 Drafting the final agreement
Now is the time to draft a final agreement. There are several methods to assist the parties in drafting their actual agreement, including:
writing the draft collaboratively;
having a third party draft the preliminary agreement, after which the various stakeholders rewrite the final version, either in a joint session or in turns;
using a combination of these options, whereby parts of the agreement are drafted by the disputants and others by the mediator, before all the sections are finalized by all the groups.
The final agreement usually consists of three parts:
an implementation, monitoring and assessment plan.
The agreement should be checked for honesty, acceptability and workability according to the guidelines in Box 7.5.
BOX 7.5 CHARACTERISTICS OF A DURABLE AGREEMENT
Is it honest:
Is it acceptable:
Is it workable:
Source: Godschalk et al., 1994.
Mediators should know which points in the agreement determine how strong or weak it will be, as outlined in Table 7.4 (Moore, 2003).
TABLE 7.3 STRONG VERSUS WEAK AGREEMENTS
Strong agreements are:
Weak agreements are:
Substantive: They define specific exchanges that everyone can touch or see (money, services, labour, etc.) as resulting from negotiations.
Procedural: They define the way or process by which a decision is to be made.
Comprehensive: They include the resolution of all the issues in dispute.
Partial: They do not include the resolution of all the issues in dispute.
Permanent: They resolve for all time the issues in dispute.
Provisional: They may involve temporary or trial decisions that are subject to change in future.
Final: They include all the details in their final form.
In principle: They include general agreements, but the details remain to be worked out.
Non-conditional: There are no conditions or requirements for future performance.
Contingent: They state that the conclusion of the dispute depends on additional information or the future performance of one or more parties.
Binding: They are formal contracts that fix the parties to certain actions (people often stick to the terms of a settlement if they understand the consequences of not doing so).
Non-binding: They make recommendations or requests only; the parties are not legally bound to comply.
Of course, the strength of an agreement will be shown when it is put into practice, and not in terms of how it appears on paper. For example, a partial agreement that is met in practice may be stronger than a complete settlement that is never implemented.
Confirming the agreement/s with a larger constituency: When an agreement has been drafted, the negotiation parties may want to reconfirm its acceptability with their broader constituencies. This is an important step in reaching broad support and acceptance. Before final agreement, the full support and commitment of all stakeholders must be confirmed. If subgroups that remain apart from the main group have emerged, the document needs to clarify who is, and who is not, party to the agreement.
Making the agreement public: A final point of discussion in negotiations is the extent to which the stakeholders want to make their agreement public. Depending on its nature, the final agreement may be enacted through a formal signing in front of witnesses or may require government approval. Alternatively, if the agreement affects many people, they may consider holding a more public forum. Some groups enter their agreements into the legal system in order to bind their decisions formally. Others choose to announce their agreements to the public at local council meetings or through the media.
Section 7 has provided a detailed examination of the negotiation process. It has outlined how to assist stakeholders in moving through the various stages of negotiations - from setting objectives and establishing shared goals, to finalizing agreements. The negotiation process is designed to achieve the best possible agreement to resolve the factors that cause conflict, preferably an outcome in which everyone gains something (also called "win - win solutions" - "I win and you win"). Section 8 is concerned with implementing and monitoring agreements and with what third parties need to consider when withdrawing from a conflict management process.
The voluntary participation of all key stakeholders is fundamental to a collaborative approach to managing conflict. A group's decision to negotiate is only effective if the other parties also feel that it is in their best interests to do so. There can be many situations in which people choose not to negotiate, such as when there are large power differences among stakeholders, fears, major difficulties in communication, or fixed positions in one or more of the parties. People may feel scared at the beginning of the process. For all sides, the risks and opportunities attached to different outcomes are usually high.
Negotiations need to be carefully prepared by the negotiation parties and their constituencies. Mediators need to prepare people for the negotiations, familiarize the stakeholders with negotiation procedures, build participants' ownership, and help participants to have realistic expectations. Mediators must also take into account that the primary stakeholders participate in negotiations, but may not be the people making final decisions. As well as the negotiating parties, the constituencies too must have adequate opportunity to contribute to negotiations and to be informed about changes or options developed in the process. Constituencies must also be informed about realistic options throughout the negotiation process. The final proposed agreement that reaches them should not be a surprise.
Although paths within negotiations sometimes wander, the process can be described as going through five main stages. Each of these is marked by specific activities: 1) setting the stage; 2) providing space for stakeholder statements; 3) finding common ground; 4) expanding options; and 5) assessing options and building consensus. There are no set designs for this process. It, and the negotiations themselves, must meet the needs of the specific situation.
Conflict management requires the building of trust among many different stakeholders. One of the mediator's key roles is to help build trust among stakeholders throughout all stages of negotiation. Clarifying interests, establishing a mutually defined system of accountability and checking to assure that trust remains throughout the negotiation process are important. Building agreements slowly and ensuring that each person has confidence in the agreements being made are also crucial.
Agreements are built on common goals and shared interests. Negotiations need to shift the focus from individual positions towards underlying needs and interests. The parties examine these interests further and then attempt to reach agreement in areas where interests are shared. Shared interests can be used to establish common goals. As these goals are agreed on, they will help to provide both direction and targets for negotiations.
Building agreements requires new and creative solutions. For many individuals, one of the most challenging aspects of negotiation is identifying workable and mutually beneficial agreements. To assist this, stakeholders are encouraged initially to try to identify the widest range of possible agreements or actions, without assessing how workable they are, or how desirable they may be to their own or other parties. To help this important creative process, groups should be reminded that they are not committing to any of the options put forward; evaluation will come at a later stage, following a mutually agreed set of criteria.
Agreed criteria are useful when identifying and prioritizing options. In order to move from a list of possible options to realistic agreements, it is necessary to establish criteria for assessing the options. Whatever the criteria are, they must be agreed to and be relevant to stakeholders' interests and the context.
Reaching agreement is part of an ongoing process. Successful negotiations lead to agreements among the various stakeholders. Parties can reach agreement in principle, and work out the specific details over time, issue by issue or within a larger package. Whatever form an agreement takes, stakeholders need to confirm how they will implement and monitor it. Additionally, stakeholders must determine how to manage any additional issues that they are not able to agree on at present.