U.N. Mediation: More Effective Options

Abstract

U.N. MEDIATION: MORE EFFECTIVE OPTIONS Paul E. Mason and Thomas F. Marsteller, Jr. „ttempts to settle international political disputes by peaceful means have traditionally been ad hoc, lacking any systematic framework, and usually initiated only after actual hostilities have broken out. This ad hoc approach may have worked in the days of purely localized conflicts and hand-held weapons; but the world today abounds with highly sophisticated instruments of mass destruction, many of which can be instantaneously launched on warning. No longer confined to the superpowers' arsenals, these weapons are also being developed by a growing number of smaller countries. Today the international community simply cannot afford to wait for fighting to begin before seeking peaceful conflict resolution. Other methods must be found to intervene at the very earliest stages of disputes to resolve them peacefully as soon as possible. In an attempt to address the issue, two alternatives are presented here—a United Nations mediation service with regional representatives ("the Service"), proposed by the authors of this article and endorsed by Paul E. Mason was co-chair, United Nations Activities Committee, section of international law and practice of the American Bar Association. Mr. Mason is currently affiliated with the Harvard Law School and practices law in the Boston area. Thomas F. Marsteller, Jr., is a partner in the law firm of Marsteller & Associates, a member of the Inter-American, American, and Federal Bar Associations as well as the International Law Assocation, and is a Ph.D. candidate at the University of Houston. The views expressed herein are the authors' and do not necessarily reflect those of the Section or the American Bar Association. Copyright © 1985, Paul E. Mason, Thomas F. Marsteller, Jr. All Rights Reserved. 271 272 SAIS REVIEW the Inter-American Bar Association, and a U.N. commission on good offices, mediation, and conciliation ("the Commission"), offered by a Special Committee of the United Nations. This article will outline the need for a new approach to mediation, briefly review past U.N. efforts at dispute resolution, and examine and compare these two alternative proposals. Although the current ad hoc approach does have considerable flexibility by definition, its drawbacks are dangerous, and timely implementation of either alternative is recommended. Both alternatives address three major problems hindering current attempts at dispute resolution: the lack of a systematic approach, critical delays in dealing with a given dispute, and the refusal of some parties to meet. At present there is no systematic framework in the United Nations or elsewhere for the mediation1 of international political disputes,2 even 1.Mediation, a method of dispute resolution by third parties, has been defined as follows: "If the third party (State or person) not only facilitates communications between the parties [to a dispute] but also actively assists the States in conflict in achieving a settlement of the dispute, good offices change into mediation. The function of the mediator has been defined as 'reconciling the opposing claims' and 'seeking an acceptable solution.' He should avoid formalities, should not make reports and should keep the proceedings confidential. The proposals made by the mediator 'have exclusively the character ofadvice, and never have binding force.' In practice there is little distinction between good offices and mediation, and often the two functions are exercised together." [footnotes omitted]. Louis B. Sohn, The Future of Dispute Settlement, Halifax: Dalhousie University Press (1981):7-8. The mediator functions by meeting together with the parties to the dispute and/or separately with each party when appropriate, to persuade them to consider the positions, interests, and attitudes of the others. The mediator may present to each party the proposed solutions offered by the others, suggest responses to and changes in these proposed solutions, or offer new solutions, ideas, accommodations, etc. On the different roles the mediator can play, see Roger Fisher and William Ury, InternationalMediation: A Working Guide, Harvard Negotiation Project, April 1978, draft edition, 107. For an insightful analysis of the motives of mediators and parties and of methods of mediation, all based upon the precepts of self-interest, political power, and prestige, see Saadia Toubal and I. William Zartman, eds. International Mediation in Theory and Practice, SAIS Foreign Policy Institute (1985):7...