Introduction

Mediation has been employed as a conflict resolution tool for centuries on both national and international levels. One of the earliest occurrences of mediation was recorded in Mesopotamia approximately four thousand years ago and mediation is also referred to in the Old Testament of the Bible. In addition, the importance of mediation has also been highlighted in literature, in Homer’s Iliad (750 B.C.) and Sophocles’ Ajax (500 B.C.).[1] Mediation has been recognised for many years as an efficient method of alternative dispute resolution in various fields of law, such as family law and commercial law.  However, since the end of the Cold War, mediation has also been employed in an attempt to resolve armed conflicts and international crises [2] (hereafter referred to as international peace mediation) and it has recently become an increasingly debated topic in academic and professional circles. [3]

However, there exist different conceptions of international peace mediation in both academic and professional fields, evidenced by diverging definitions and terminology within academic circles and disciplines and by codes of conduct and guidelines of varying standards and requirements within professional settings. These codes of conduct and guidelines are drawn up by various national and international institutions and establish rules of engagement for mediators. They are intended to regulate and are gradually ‘professionalising’ the field of international peace mediation. [4] However, rigid rules set out within these codes of conduct may potentially restrict the approach and strategies of the mediator and certain provisions pertaining to human rights and international law contained within these documents may also deter conflicting parties from engaging a mediator bound by such provisions.

This paper seeks to investigate the disparity between academic research on international conflict mediation, the provisions set out in various codes of conduct for mediators and the actual practice of international conflict mediation by mediators in order to establish whether existing codes of conduct adequately reflect current mediation practice.

Section One deals briefly with the background of mediation and seeks to highlight the various definitions that exist within the field of international peace mediation. The differing categories of mediation are also set out in this section, as is the framework surrounding Track I and Track II mediation. Section Two deals with codes of conduct established for mediators by different mediation bodies in order to examine existing guidelines and Section Three takes a closer look at provisions regarding neutrality, impartiality and bias to assess whether or not these codes of conduct may potentially limit or restrict the mediator. Section Four examines the challenges facing mediators when it comes to including transitional justice mechanisms in final drafts of peace agreements.  Section Five outlines some of the findings from empirical research on international peace mediation and Section Six concludes with some final observations and recommendations. A wide range of literature within the fields of both law and peace studies have been consulted in the research for this article, along with data gathered from questionnaires and semi-structured interviews with academics and practitioners of mediation, undertaken as part of a project carried out in the School of Law and Government, Dublin City University in 2008-2009. These questionnaires were carried out on the basis of anonymity.

Background to mediation

As mediation is an age-old conflict resolution tool and is used in multiple fields, including industrial relations, civil and criminal litigation, family law and international relations, the definition therefore varies from discipline to discipline. There are many definitions of ‘mediation’ contained within guidelines for mediators, codes of conduct and academic literature.[5] The European Code of Conduct was drawn up by the European Commission Justice Directorate in 2004 following the EU Green Paper on Alternative Dispute Resolution. Many  areas of mediation including competence, advertising, impartiality and fees are covered, and the Code of Conduct is intended to be applicable to mediation in any context. Within this code, mediation is defined as,

“[a]ny process where two or more parties agree to the appointment of a third party [...] to help the parties to solve a dispute by reaching an agreement without adjudication and regardless of how that process may be called or commonly referred to in each Member State.” [6]

The International Mediator’s Institute is a non-profit organisation that seeks to improve the quality of mediation and to promote mediation as a conflict resolution tool. Their definition of mediation is quite similar to that of the European Code of Conduct, viewing mediation as a voluntary and non-coercive form of conflict management involving a third party, and reads as follows,

“a process where two or more parties appoint a third-party
neutral (“Mediator”) to help them in a non-binding dialog to resolve a dispute
and/or to conclude the terms of an agreement.”

The Centre for Effective Dispute Resolution (CEDR) defines mediation as “a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of the resolution.” [7] This is quite a more prescriptive definition of mediation, asserting that the mediator must remain neutral and that he or she must also “actively” assist the conflicting parties. The definition of mediation proffered by the European Code of Conduct also stated that the mediator is a “neutral” third party.  However, these qualifiers depend largely on the type of mediation in question, as outlined below. The issue of neutrality and impartiality is also widely debated and one of the most frequently discussed in terms of mediation; should a mediator  remain neutral and  impartial, and what is meant by these concepts specifically? These questions are addressed in greater detail in section three.Kleiboer, in his article, loosely defines international mediation as “a form of conflict management in which a third party assists two or more contending parties to find a solution without resorting to force,” [8] while Herrberg, the
Senior Mediation Advisor with Crisis Management Initiative (CMI),  defines it as “a voluntary and confidential method of a structured process, where one or more impartial third parties assist conflict parties to reach a mutually satisfactory solution. The mediator provides a framework, but makes no substantial suggestions or decisions in the case.” [9] Again, Herrberg’s definition assumes that the mediator should and shall remain impartial. Moore also places such limitations, defining mediation as “the intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no authoritative decision-making power.” [10] However, the definition of mediation depends largely on the type of mediation in question, as discussed below. Herrberg herself says that her definition is based on “the so-called interest-based, facilitative approach” to mediation. [11] The definitions contained in the codes of conduct are quite general, whereas the academic definitions assume impartiality on the part of the mediator and the absence of or prohibition on leverage or coercion.

Categories of Mediation – Law

As established above, mediation is researched and studied across many fields of social science. Compared to peace studies, the legal paradigm offers a more concrete structure of  analysis and categorisation. There are a number of mediation styles within the legal framework of conflict mediation, including facilitative mediation, evaluative ediation and transformative mediation.

Facilitative Mediation

Facilitative mediation is the original and first identified mediation style.  This mediation style provides a structure to ensure that parties reach a mutually acceptable settlement.  The role of the mediator as an impartial third party is to assist the parties in reaching this agreement.  The mediator does not suggest a suitable outcome to the parties. Facilitative mediation is what is commonly understood to be mediation.  The significant features of facilitative mediation therefore are that it is consensual and voluntary.  As MacFarlane, an academic, explains, the aim of this particular style of mediation is to:

“…facilitate the development of consensual solutions by the disputing parties…”[12]

Facilitative mediation can foster communication between the disputing parties. [13] Palmer and Roberts explain that facilitative mediators have a minimal role in the mediation process. [14] The role of the facilitative mediator is seen as encouraging, and improving, communication between the disputing parties to help them reach an acceptable settlement.[15] Facilitative mediation appreciates that the parties are competent of negotiating the dispute more effectively themselves.  This is due to their unique insight into, and understanding of, the situation. [16] The parties can then collaborate to solve the problem in a manner that will address their own particular needs and interests. [17] Thus, the parties can be creative in determining a suitable outcome that, as some commentators claim, allows for a ‘win-win’ solution to the dispute. [18] The Centre for Humanitarian Dialogue (HDC) has adopted a facilitative approach in mediation processes in a number of conflicts. This is clear from its activity in the Central African Republic, where it was responsible for chairing a meeting between all interested parties in the first phase of the All-Inclusive Political Dialogue Process for national reconciliation. The HDC’s involvement in the AU-UN Darfur mediation process was also one of facilitative mediation as it hosted meetings to facilitate dialogue between the Sudanese Government, opposition movements and other actors.  The organisation also acted as a facilitative mediator in Timor-Leste, where its functions were to oversee the conduct of the meetings, including the preparation of agendas, maintain records of the meetings, monitor and report on progress of the process.  In each of these cases, the mediator was required to remain neutral and impartial. This allowed for the beginning of a dialogue process between al parties, which had previously been difficult or impossible.

Evaluative Mediation

This style of mediation was first categorised in academic research by Riskin.  Riskin acknowledges that with evaluative mediation the mediator has a much greater level of participation, and interaction in the process to ensure that the disputing parties reach a settlement.  Unlike facilitative mediation, where the mediator acts as an impartial third party whose role, in theory at least, is not to influence the mediation process or outcome in any way, evaluative mediation sees the mediator being more involved with the process and the outcome. As Riskin explains, the assumption within evaluative mediation is that the parties are dependent upon the mediator to provide guidance regarding their circumstances and possible ways of resolving the dispute. [19] Palmer and Roberts explain that the mediator will evaluate the merits of the respective parties’ position. [20]

The main strategy of the evaluative mediator is to help the parties appreciate the relative strengths and weaknesses of their respective positions. [21] On this basis, the mediator will then put forward suggestions as to how the dispute can be resolved.  This may include details of a settlement. [22] Riskin lists some of the other techniques employed by the evaluative mediator. These include persuading the parties to accept a settlement proposal, proposing “position-based compromise agreements”, and trying to persuade the parties to accept the mediator’s assessment of the merits of each party’s claim. [23] Emphasis will be placed upon full participation of all relevant parties during the mediation process.  Opportunities will be available for parties to discuss settlements. [24] Evaluative mediators will ask the parties about their “situations, plans, needs and interests”. [25]

That the mediator focuses on the underlying interests as the goal of mediation distinguishes evaluative mediation from facilitative mediation.  The mediator may, using evaluative techniques, suggest settlement options other than compensation.  Riskin claims that the evaluative mediator will provide the parties with “predictions, assessments and recommendations”, with emphasis on those “options that address underlying interests”. [26] Academics, Folger and Bush identify this type of mediation as the “problem-solving approach”, whereby the mediator has a very involved role in directing the parties towards settlement. [27] In addition, this type of mediation can deliver options which accommodate and address the needs and interests of the parties. [28] This type of evaluative mediation was employed by Martti Ahtisaari, former president of Finland and Chairperson of CMI, in the mediation of the Memorandum of Understanding between the GAM and the Indonesian Government in 2005. Riskin describes one of the distinctive features of the evaluative mediator as being able to persuade the parties to accept the mediator’s assessment of the respective party’s claim.  This was the case with Ahtisaari who was very active in “persuading the GAM to explore ‘a narrow opening in the autonomy clause’…to encourage the movement to bend to the government’s position…” [29]

George Mitchell’s style in Northern Ireland could also be classified as evaluative, although his approach may have been regarded as facilitative at the beginning of the process. The leaders of Sinn Féin and the Ulster Unionist Party did not have any face-to-face bilateral meeting before the Good Friday Agreement was reached, thus illustrating Mitchell’s role as a facilitator of dialogue.  However Mitchell also went beyond this role, when he actively sought to bend the positions of political parties to what he regarded as the only achievable agreement, and intervened directly with the parties.

Transformative Mediation

Folger and Bush presented a fourth type of mediation, namely ‘transformative mediation’ in more recent times. [30] This approach is based on the idea that mediation has the “potential to generate transformative effects, and that these effects are highly valuable for the parties and for society.” [31] Transformative mediation stresses the concepts of empowerment and recognition. Empowerment refers to enabling the parties to understand the variety of options available to them and allowing them to realise that there are choices to be made and that they have control over which choices are made. [32] Mediators also try and get each party to see things from the other party’s perspective so that they may work towards changing their approach to the mediation process to accommodate the other party’s perspective. [33] Folger and Bush point out that when empowerment and recognition are implemented on each side, “the party experiences a greater sense of self worth, security, self determination and autonomy.” [34] Herrberg refers to this type of mediation as “transformative, long-term mediation” and points out that a number of mediators can intervene in this kind of process over a longer period of time, and mediation can be carried out on both formal and informal levels. [35] An example of a transformative approach can be seen in former US President Jimmy Carter’s initial approach to mediating between Israel and Egypt during the Camp David Accords in 1978, when he stated: “My aim was to have Israelis and Egyptians understand and accept the compatibility of many of their goals and the
advantages to both nations in resolving their differences.” [36]

Categories of Mediation – Peace Studies

The study of mediation is newer to the field of peace studies than to the field of legal studies. International conflict mediation is generally broken down into three categories in academic peace studies research, with Bercovitch referring to the three types as communication-facilitation strategies; procedural strategies and directive strategies. However, within peace studies generally, different labels are used for similar processes, highlighting a lack of cohesion in the literature and research on international conflict mediation. The various  ‘categories’ of mediation determine the mediator’s approach to the mediation process.

Communication-facilitation

‘Communication-facilitation’ sees the mediator as a passive facilitator of communication and information on the low end of the intervention spectrum. [37] This type of mediation is also referred to as “reflective mediation” by Kressel and the mediator is referred to as “communicator” by other academics Touval and Zartman. [38] Herrberg refers to “interest-based, problem-solving mediation”, whereby the mediator promotes ownership of the process by the conflicting parties. [39] The aim of this type of mediation is to promote cooperation between conflicting parties and to enable enhanced communication and information sharing.  When compared to the categories established by the legal paradigm, Bercovitch’s communication-facilitation can best be matched with facilitative mediation – the overarching goal is to facilitate information sharing between the
conflicting parties.

Procedural Strategies

‘Procedural strategies’ enable the mediator to exert some control over certain aspects of the mediation process, such as timing, agenda and the distribution of information. Kressel refers to this type of mediation as “nondirective mediation” and Touval and Zartman label the mediator as “formulator.”[40] Bercovitch points out that this type of mediation serves to minimise any disruption or confusion that may occur when two or more conflicting parties who have little experience of negotiating together meet to discuss possible solutions to their conflict.[41] The idea of ‘procedural strategies’ can best be seen in the ‘evaluative mediation’ category when comparing peace studies literature with that of legal studies.

Directive Strategies

Directive strategies see the mediator having a lot more influence over the mediation process than the previous two strategies. The mediator actively strives to shape the content and outcome of the final peace agreement through the use of ‘carrot and sticks’ and by offering each party in conflict incentives, promises of support, or threats of diplomatic sanctions.”[42] This type of mediation is referred to as “directive mediation” by Kressel and the mediator is referred to as the “manipulator” by Touval and Zartman. [43] Bercovitch highlights the fact that such a strategy allows the mediator to potentially break a cycle of violent conflict by altering the factors which influence the parties’ decision making process. Herrberg refers to this type of mediation as “power-based, deal brokering mediation”, and also uses the carrots and sticks idea to highlight the power a mediator can exert over a mediation process. However, Herrberg points out that this type of mediation is not always accepted by parties and may lead to counterproductive results. [44]

Folger and Bush also discuss the other three types of mediation, however, once again they use different terminology. Bercovitch’s communication-facilitation strategy is the “satisfaction story”; the procedural strategy is the “social justice” approach and the directive strategy is referred to as the “oppression story.” While Bercovitch highlights advantages in directive mediation, Folger and Bush refer to it as the oppression story, contending that mediation “has become an instrument for the powerful to take advantage of the weak in society.” [45]

The Importance of Ripeness

Procedural and directive strategies work best when the moment is “ripe,” as the mediator has more leverage over the parties due to the fact that it is in their best interest to resolve the conflict as soon as possible. Zartman posits that a “ripe” moment in conflict logically occurs between the stages of escalation and negotiation, as escalation serves to increase conflict while negotiation seeks to decrease and ultimately end conflict.  Zartman’s theory of “ripeness” focuses on the timing of resolution efforts and stipulates that certain factors must exist for a “ripe” moment to be created and exploited. The two most important factors are the existence of a perceived Mutually Hurting Stalemate (MHS) and a Way Out, followed by the presence of a valid spokesperson for each side, third party mediation and a Mutually Enticing Opportunity (MEO).

Third party intervention refers to “various mediation efforts by external actors who attempt to influence and strengthen the conflicting parties’ conviction and perception of a ripe moment and the necessity of a negotiated settlement of conflict.”[46] As ripe moments are perceptual, third parties play an important role in alerting conflicting parties to their existence. Aggestam outlines two ways in which third parties can do this; persuasion with power and persuasion with communication. Persuasion with power involves the use of leverage and coercive power.  However, critics point out that as a result of coercive bargaining, third parties can alter and affect the structure and distribution of power within conflict and cause further escalation of violence. Persuasion with communication is a form of non-coercive mediation, whereby third parties serve as channels of communication and provide a neutral environment for exploratory talks and negotiation. Small states are especially suited to this role, as they are perceived as trustworthy and non-threatening.[47] The role and influence of potential actors in mediation is outlined below. In general terms, ‘ripeness’ allows the mediator to exert more influence and control over the mediation process as the conflicting parties are more willing than ever to reach a successful, win-win agreement.

Mediation Tracks

International conflict mediation may be carried out by a range of different actors, and these actors are generally divided into two tracks. Track I diplomacy refers to official governmental diplomacy and may be carried out bilaterally between two states, or multilaterally when several states work together and even regionally or globally through regional or inter-governmental organisations, such as the EU or the UN. [48] States may want to mediate conflicts for several reasons, including a perceived threat to their security, a desire to continue or enlarge their sphere of influence, or, more altruistically, a desire to end the suffering of those caught up in the conflict.[49] Track I diplomacy tends to primarily reflect Bercovitch’s directive mediation strategy, following a more power-based approach to the mediation process.

Track II diplomacy is also referred to as ‘citizen diplomacy’ and is generally carried out more informally than Track I diplomacy. The term “Track II” was coined by Joseph Montville, a former US diplomat, in the early 1980. Montville recognised the limitations of Track I diplomacy following US withdrawal from Moscow after Russia invaded Afghanistan

in 1979, and recognised the need for a variety of actors to engage conflicting parties on various levels.[50] He distinguishedtraditional diplomatic activities (Track I diplomacy) from “unofficial, informal interaction between members of adversarial groups or nations with the
goals of developing strategies, influencing public opinions and organizing human and material resources in ways that might help resolve the conflict.” [51] Mediation under Track II is carried out by specialized non-governmental actors such as Crisis Management Initiative (CMI), religious organisations such as the Community of Sante Egidio and humanitarian organisations such as the International Committee of the Red Cross as well as individuals mediating in an unofficial role who do not represent their country in any capacity.[52] An example of a
coordinated Track II approach can be seen in the case of Aceh[53], where the HDC initiated the mediation process as communication facilitators and then many states including Japan, Norway, Canada and Australia, the European Union and CMI became involved in the process. Martti Ahtisaari, former president of Finland and Chairperson of CMI, was the chief mediator, and the mediation process ended in a successful peace agreement (the Memorandum of Understanding) in 2005. Track II diplomacy is based more upon communication-facilitation and transformative mediation than Track I diplomacy,
which relies largely on empowerment and communication rather than carrots and sticks. [54]

There are advantages and disadvantages to both Tracks. States and large organisations such as the EU and UN have access to considerable resources. In addition, they can offer and implement political and economic incentives and they possess the requisite carrots and sticks to encourage conflicting parties to achieve a successful peace agreement. Individuals and NGOs lack these resources and therefore, their actions are often restricted to communication and facilitation only.  This means that the
mediation process relies on the buy-in of all conflicting parties as there are no real carrots and sticks on offer.[55] However, Track II mediators also have several important advantages. Their sole objective is to resolve the conflict and they will not have any vested interests in the mediation process.[56] Bercovitch highlights the fact that Track II mediators operate at an informal level and often secretly.  This allows the conflicting parties to place their trust in them implicitly.[57] Chigas, professor of practice of conflict resolution in the Fletcher School of Tufts University, also highlights that although Track I mediation processes may be well suited to resolving resource-based issues, such as poverty, control over land and the distribution of economic opportunities, “issues of identity, survival, and fears of the other can only be addressed in a process that works directly to change the underlying human relationship, promoting mutual understanding and acknowledgement of people’s concerns.”
[58]
Track II mediators are also more flexible to meet with various actors; states and regional organisations cannot negotiate with groups they have listed as terrorists, and likewise, these groups may not wish to engage with states or regional organisations for fear of bias and the forceful conclusion of peace agreements
with unsatisfactory provisions. For example, neither the EU nor the US can meet with representatives from groups they have labelled as ‘terrorists,’ such as the Liberation Tigers of Tamil Eelam (LTTE) or Hamas. Geneva Call, an international humanitarian organisation dedicated to engaging armed non-state armed groups to respect and to adhere to humanitarian norms, meets with groups labelled by states as ‘terrorists’ and works with them towards renouncing certain weapons that cause excessive harm to civilians.[59]

Many academics and practitioners support a combination of the two Tracks.[60] Herrberg highlights the importance of a “necessary complementarity” between the two Tracks. [61] Fischer comments that “not all conflicts at all points in time will be amenable to a single and unified method of intervention.” [62] A coordinated, multi-track approach is necessary to resolve modern multidimensional conflicts. Individuals and NGOs can bring conflicting parties together to facilitate communication, while states and international organisations can provide the political and economic incentives to work towards an agreement as well as post-conflict reconstruction and monitoring teams. The case of Aceh once again highlights this situation; HDC and CMI facilitated communication and dialogue between the GAMand the Indonesian government while the EU was in a position to provide a monitoring mission to ensure implementation of the peace deal, as well as financial incentives needed to rebuild Aceh after the tsunami. In the Central African Republic, a combination of Track One and Track Two mediation was employed, with individuals such as President Bonga of Gabon and former President Buyoya of Burundi taking lead roles which were supported by the African Union and the UN as well as HDC.

Codes of Conduct

As the field of international peace mediation has developed, there has been an increased focus on the need for some sort of guidelines and standards for practitioners. This has led to the development of a range of training requirements, ethical guidelines and codes of conduct for mediators drawn up by various national and international
institutions. However, there is no universally accepted code of conduct or set of guidelines and existing codes and guidelines very greatly. This could lead to the practice of international peace mediation being “more political than professional”, [63] such as in the case of EU Special Representatives who are generally chosen for political reasons rather than on the basis of “merit or professional standards.”[64]

However, there arguments against the professionalisation of international peace mediation. A number of practitioners believe that detailed codes of conduct may be perceived as a ‘straightjacket’, limiting the freedom and creativity of the mediator. [65] Strict guidelines and codes of conduct could require that mediation processes be carried out  in a particular way and that certain issues must be included in the dialogue process.  If parties to a conflict see that a mediator is constrained by the requirements of such codes, they may not be willing to enter into a mediation process.  If a mediator is free to mediate as he / she sees fit, without the constraints that such codes could bring, he / she is seen as being more open to deal with all of the issues of the parties who may have more
faith in the ability of the mediator to come to a satisfactory agreement, reflecting all the parties’ needs, rather than a formulaic agreement which reflects the requirements of a code of conduct. For example, some codes of conduct provide that mediators should seek the inclusion of human rights provisions in a agreement and deal with the question of justice for crimes committed during the conflict, which may alienate some parties to the conflict. In addition, certain codes of conduct may also prevent the mediator from engaging with groups which have been labelled as ‘terrorists’. [66] It is generally accepted by both academics and practitioners therefore, that non-binding guidelines for mediators are preferable in the field of international peace mediation. [67] To some, this means that professionalisation is not necessarily a positive move in the field of international peace mediation, as it is equated with the implementation of codes of conduct and guidelines.  However, professionalisation is more than codes of conduct, and includes training of mediators and perhaps some level of uniformity between mediation organisations, which some practitioners believe are necessary to ensure a positive mediation process. [68]

Therefore, it is suggested, that a middle ground must be sought and a flexible approach to the professionalisation of international peace mediators must be taken.  This could perhaps, include an increase in training programmes for mediators and the sharing of information on the details of mediation processes, whereby mediators can learn from the experience of others in the field what should be done and what should be avoided in certain mediation situations, but would not necessarily include the imposition of strict codes of conduct which would require that mediators lose some of their creativity and verve in mediation processes.

There are striking differences between the codes of conduct and sets of guidelines issued by different institutions. For example, the European Code of Conduct for Mediators does not even provide a definition of the term ‘mediator’, [69] whereas other codes of conduct, such as those provided by the Mediators’ Institute of Ireland and the Chicago International Dispute Resolution Association provide strong definitions of both the “mediator” and the process of “mediation.” A range of these codes of conduct will be compared and contrasted below, bearing in mind the four types of mediation styles outlined above and the issue of professionalization of international conflict mediation. The question of how much codes of conduct reflect the reality of a mediation process will also be addressed.

Impartiality and neutrality

The idea that a mediator must always remain neutral and impartial is widely debated in both the field of peace studies and that of legal studies. Mediators becoming involved in a conflict will inherently bring with them, be it consciously or unconsciously, their own ideas, opinions, knowledge and resources which may, intentionally or otherwise, effect the outcome of the mediation process. [70]

Although similar in meaning, there are subtle yet important differences between the concepts of impartiality and neutrality in terms of international conflict mediation. The UN “Humanitarian Negotiations with Armed Groups – A Manual and Guidelines for Practitioners” states that while both are fundamental principles of humanitarian action, neutrality means that “humanitarian negotiations should never endorse, or be perceived to endorse, a particular political aspiration or objective of the
armed group,” whereas impartiality refers to mediating without discriminating on the basis of “ethnic origin, gender, nationality, political opinions, race or religion.” [71] Thus, by remaining neutral, a mediator will not agree with or condone any of the political goals or ideologies of the conflicting parties, and by remaining impartial the mediator will treat all conflicting parties equally regardless of their background. This manual therefore calls on all mediators to be both neutral and impartial, which is not the case in other sets of guidelines or codes of conduct. The code of conduct issued by International Alert also differentiates
between the two terms quite succinctly, stating,

“by impartiality we mean not to take sides in conflicts. […] Although impartial in as far as we conduct our work among different conflict parties, we are not neutral in terms of the principles and values we adhere to which we must in appropriate ways work to advance at all times.” [72]

This implies that impartiality falls within the realm of the professional, while neutrality is something more personal. This view is further emphasised by Johan Galtung, who posits that a mediator has values, and so can never be neutral. [73] However, most codes of conduct explicitly state that the mediator should remain neutral and impartial at all times. Article 2.1 of the European Code of Conduct for Mediators deals with independence and neutrality and states:

The mediator must not act, or, having started to do so, continue to act, before having disclosed any circumstances that may, or may be seen to, affect his or her independence or conflict of interests. […] In such cases the mediator may only accept or continue the mediation provided that he/she is certain of being
able to carry out the mediation with full independence and neutrality in order to guarantee full impartiality and that the parties explicitly consent. “[74]

Impartiality and neutrality are not defined, but it is implied that a mediator’s neutrality is necessary to ensure impartiality. This in turn implies that a mediator should set aside his or her own value system in order to guarantee objective mediation. Article 2.2 goes on to deal with the issue of ‘impartiality’, and states that “[t]he mediator shall at all times act, and endeavour to be seen to act, with impartiality towards the parties and be committed to serve all parties equally with respect to the process of
mediation.”[75] Although these two provisions, particularly the latter, are rather vague and ambiguous, the message is clear; the mediator is to remain neutral and impartial at all times. Kleiboer states that impartiality is sometimes related to the mediator’s attitude towards the conflicting parties and at other times, to a mediator’s stake in the outcome of the mediation process; it may also refer to both.
[76]

Article 2.2.3 of the International Mediation Institute’s Code of Professional Conduct states that “[m]ediators will always act in an independent, neutral and impartial way.” [77] This provision does not distinguish between the mediator’s need to be both impartial and neutral. It therefore prevents the mediator from having both opinions and values, similar to the provisions set out in the European Code of Conduct. The provision also raises the issue of bias, stating that mediators “shall act in an unbiased manner, treating all parties with fairness, quality and respect.” This provision highlights one of the most salient debates within the academic literature on conflict mediation. Many commentators argue that mediators are more effective if they are seen to be impartial and act without bias.

[78] Young argues that in order to play a meaningful role, the mediator must be “perceived as an impartial party (in the sense of having nothing to gain from aiding protagonist)” [79] and Haig, a mediator himself, concurs, stating that “the honest broker must, above all, be neutral.”[80] However, there are other academics and practitioners who dispute this, arguing that a certain amount of bias is both expected and necessary from a mediator within a mediation process. Depending on the motivating factors for the mediator’s involvement in the mediation process and his/her background, the mediator will not always be indifferent to the terms of the agreement and even though he/she is seeking a peaceful settlement to the conflict, the mediator will “try to avoid terms not in accord with their best interests.” [81] The type of mediator and motivating factors for involvement is discussed below.

Kydd insists that a certain amount of bias is intricately linked with the credibility of the mediator, framing this argument in a game theory model. [82] He states that each party must believe that the mediator is telling the truth in order for the mediator to be effective. Only a mediator who is effectively ‘on your side’ is credible if he/she counsels constraint, as a mediator biased in favour of the opposing party would “have a strong incentive to claim that the opponent has high resolve [to use force] whether or not this is true.” [83] However, a mediator who shares or condones a party’s political goals would be trusted to be honest. Kydd uses the example of the Argentinean invasion of the Malvinas/Falkland Islands in 1982 and the NATO invasion of Serbia in 1999. [84] In the first case, the US acted as mediator and told Argentina that the British would use force if they did not withdraw their troops. However, the Argentineans did not believe this as they were aware that the US was biased in favour of the UK. They thus ignored this advice and the mediation attempt failed. In the second case however, the Russians acted as mediator and advised the Serbs that NATO would use force, and so the Serbs accepted the latest NATO proposals as they were aware that Russia had their best interests in mind. Kleiboer also argues that a certain amount of bias can be helpful; if the mediator is biased in favour of the stronger party,  the stronger party will be more likely to accept the mediator and in turn, the weaker party will assume that the mediator will use his/her partiality to influence their opponent. [85] Surprisingly, a completely unbiased mediator may also lack credibility. This occurs when he/she is simply interested in resolving the conflict at hand as he/she may also have a strong incentive to attempt to convince each party to make concessions.[86]

It can be seen from the various provisions and definitions of neutrality, impartiality, independence and bias above that there is little cohesion between the various cademic sources, sets of guidelines and codes of conduct for mediators. Some codes state that the mediator should always be both neutral and impartial, while others imply that while a mediator should act impartially and treat all parties equally and with respect, neutrality is something that a mediator cannot and should not be expected to espouse, as they inherently have values and these values may be important for the overall success of the peace agreement. One concern regarding strict codes of conduct which states mediators must always remain neutral and impartial is that they may become too restrictive on the mediator, limiting his or her creativity and ability to act or react spontaneously to a situation.

Who can be impartial?

The next logical step in the debate on neutrality and impartiality is the discussion on the various actors involved in the mediation process and the different ‘Tracks’ to which they belong. Herrberg points out that due to the globalisation of international politics there are many more stakeholders than there used to be, which means that diplomacy is no longer owned by states. [87] In addition, potential mediators are not always motivated by similar goals. The tenets of realism and liberalism may be applied in this case. The general consensus indicates that NGOs and private individuals are inherently more impartial and neutral, as their main goal is to resolve the conflict. [88] Small states are also more likely to act or be perceived to act impartially and often enter a mediation process with greater credibility. In asymmetrical conflicts, Slim points out that “a small state can provide a face-saver to whom capitulations can be made without threatening the public-bargaining posture” for the more powerful party, while the weaker party may view the small state mediator as an ally who recognises the difficulty in negotiating from a weaker position. [89] Algeria proved to be an effective mediator during the Iranian hostage crisis for these reasons. [90] It was a small state that was trusted by both sides and although there was bias in favour of Iran, Algeria’s ultimate goal was the safe release of the hostages.

Powerful states, on the other hand, tend to be motivated by self-interest and are therefore more likely to first of all become involved in the mediation process if it suits their own agenda and second of all, their self-interest may motivate them to try and shape the outcome of a mediation process to suit their own aims and objectives. Regional organisations are also more likely to be motivated by self-interest than non-state actors and are also more likely to influence the outcome of mediation and the content of the peace agreement. This approach negates their ability to act impartially. For example, the EU is rarely regarded as an impartial mediator, but rather as an actor with vested interests, especially in areas with close links to the EU – either geographically or historically, where former colonial history plays a role.

Leverage and Coercion

States and regional organisations are also in a better position to use financial and political leverage or coercion, which is a challenge often facing NGOs and smaller states. Herrberg points out that leverage, or “positive conditionality,” and coercion, or “negative conditionality,” have different functions in mediation; coercion is usually
used as a last resort to get parties to come back to the table while leverage is often used to ensure the success of a mediation process.[91] Leverage thus refers to the “mediator’s ability to put pressure on one or both of the conflicting parties to accept a proposed settlement.” [92] Small states acting as mediators usually rely on persuasion rather than power and coercion. [93] The EU is seen as a “vested interest mediator,” meaning that the organisation may have specific interests in directing the outcome of a mediation process. The EU also has many ‘carrots and sticks’ at its disposal. However, this does not necessarily mean that the EU is no longer impartial or neutral if it then uses these ‘carrots and sticks’; once they are used effectively and fairly, then the EU can guarantee its own interests while at the same time working towards a comprehensive resolution to conflict. It would thus become a “partial” mediator – one that has openly stated its own interests but still engages all parties with fairness and respect. Kleiboer also argues that a mediator does not have to be impartial to be successful; the type of mediator that arises is thus known as the “insider-partial” as opposed to the “outsider-neutral.” [94] However, depending on the type of mediation, neither leverage nor coercion should be used in a mediation process. For example, in the basic facilitation-communication model, the use of carrots and sticks would be ruled out as the mediator is merely enabling the sharing of information between parties and not trying to drive them towards an agreement.

Striking a balance – peace  v. justice
The inclusion of provisions relating to transitional justice in peace agreements is often one of the most challenging issues mediators must deal with in a mediation process, and recent developments in international law and practice have not been able to provide any solution. [95] Ideally, mediators would like to see provisions relating to human rights law and international humanitarian law included in the mediation process and final peace agreement. Indeed, it is often human rights abuses which cause or contribute significantly to conflict situations in the first place, or exacerbate such situations in the long term and therefore, human rights abuses need to be addressed in a post-conflict society to ensure a lasting peace.  In addition, notice needs to be taken of the seriousness of violence and breaches of international humanitarian law which occur during armed conflict to ensure that all parties feel a sense of justice in the post-conflict society.  Many guidelines and codes of conduct highlight the importance of the inclusion of human rights and humanitarian law issues in mediation processes and this is also advocated within academic literature on the subject. The code of conduct issued by International Alert, for example, highlights the organisation’s commitment to “the principle and practice of promoting individual and collective human rights” and its goal of ensuring all conflicting parties observe the minimum standards of human rights and humanitarian principles set out in Common Article 3 of the Geneva Conventions and Additional Protocol II. [96]
In the preamble and commentary on their code of conduct, it reaffirms its commitment to push for the recognition and inclusion of these principles in settlement agreements and state that it supports “measures which address the problems of impunity and injustice, historical truth and compensation for victims.” [97]

The inclusion of provisions on human rights and transitional justice is quite value-based, and comes back to the question of how neutral a mediator can be. [98] Although a mediator may disagree with granting amnesties or omitting measures for investigations into crimes committed during the conflict, he or she may have to put these values aside in order to facilitate a compromise between the conflicting parties. He or she would, however, have to take into account international reaction to granting immunity for serious human rights abuses and the reaction from potential financial donors to post-conflict reconstruction.[99] The law is also increasingly clear on amnesties. Amnesties for the most serious international crimes such as genocide, war crimes and crimes against humanity are prohibited under international law.  The UN also prohibits granting amnesty for other human rights violations, such as slavery and extra-judicial killing. Hayner also points out that provisions that prevent a victim from taking a case to court violates both the victim’s rights and many national constitutions, referring to the case of Burundi where the peace agreement granted undefined “provisional immunity” to combatants, which remained in force for years. [100]

The mediator will determine whether or not he / she can actually strive for the inclusion of such provisions; a facilitation-communication based mediator would not have the power to push either party to consider or accept provisions dealing with truth and reconciliation commissions or human rights inquiries. Herrberg points out that the EU is a value-based community that encapsulates human rights and humanitarian principles in its institutions and structures.[101] Although insisting on transitional justice measures may prove challenging, it is vitally important to uphold this value system and maintain the international
normative values it itself espouses. UN mediators are bound by the same value system.[102]

However, insisting on the inclusion of transitional justice mechanisms brings several associated risks. Parties to a conflict may not want to deal with a mediator who is going to force human rights provisions, investigations of possible war crimes and subsequent justice. Likewise, institutions such as the EU might find it problematic to
engage with actors who refuse to consider addressing massive human rights abuses and other crimes committed during a conflict. However, the inclusion of transitional justice measures need not be as black and white as “a stark choice between either prosecutions for war criminals or broad amnesty.” [103] A broad range of both judicial and non-judicial measures exists, including truthseeking and truth and reconciliation commissions, institutional reforms, providing reparations to victims, advance community reconciliation and memorials.[104]

In practice, mediators, have managed to get agreement on the inclusion of human rights issues in peace agreement.  For example, in the case of the mediation process between the GAM and the Indonesian government, the mediator, Ahtisaari, was successful in getting the agreement from the parties to include provisions on human rights and transitional justice in the final draft of the peace agreement. Article 2 of the Memorandum of Understanding deals
with human rights and the establishment of a Human Rights Court and a Commission for Truth and Reconciliation. The third section covers Amnesty and Reintegration into Society, whereby the government of Indonesia agree to grant amnesty to all persons who have engaged in GAM activities and agree to release all political prisoners and detainees.

Findings from Questionnaires and Interviews

As part of a project entitled “Mediation in Conflict Resolution:  What Makes for Successful Peace Negotiations?”, undertaken in the Centre for International Studies, Dublin City University, 2008 – 2009, [105] seven questionnaires and seven interviews were undertaken with practitioners and academics in the field of international peace mediation.  These gave very interesting insight into the theory and practice of mediation.  The main findings from this
empirical research can be summarised as follows:

  • Some people working in the field of international peace mediation have not undertaken training programmes
  • Some organisations work in the absence of formal guidelines/ codes of conduct for international peace mediators
  • The majority of people interviewed and questioned believed there was a need for both training programmes and guidelines / codes of conduct for professional
    mediators
  • The best entity to mediate in an armed  conflict situation depends on the parties but Multi-track mediation is advocated

Among the main challenges of mediation processes, were:

  • Inclusion of all interested parties in the mediation process, including civil society organisations, women and marginalised people
  • Staying neutral
  • Staying hopeful
  • Maintaining confidentiality
  • Getting buy-in from disparate parties

The research highlighted that a number of factors could negatively impact on mediation processes, including:

  • National self-interest
  • Greed
  • Bias of Mediator
  • Lack of Preparation
  • Inattention to detail
  • Behaviour which may call into question the neutrality and impartiality of the mediator

Conclusion

It would seem that the majority of guidelines and codes of conduct established for mediators are based on the simple model of communication-facilitation, as this type of mediation allows the mediator to remain neutral and impartial in the background. The facilitation-communication category of mediation is the easiest to regulate as the mediator does not impose opinions or agenda on conflicting parties. Codes of conduct may negatively impact mediators’ ability to be creative if they are too restrictive. Track II mediation inherently allows mediators more flexibility and creativity than states operating within Track I. However, Herrberg points out that codes of conduct can be effective for all types of mediation if they are applied with flexibility. They would thus provide guidance for the mediator and “ensure the conscientious application of professional practice” while still allowing for creativity and ingenuity should the need arise.[106] The credibility of the mediator is paramount to the success of any mediation process; flexible guidelines would ensure credibility by ensuring a professional, uniform approach while allowing the mediator to utilise creativity and spontaneity when faced with challenging situations.

Recommendations

Codes of conduct are in place in all strata of occupations to ensure that work is carried out at the highest level of professionalism. This is also true for mediators; codes of conduct are established by mediation institutes all around the world to provide guidelines for mediators and uniform standards to which they must consistently endeavour to adhere. However, these guidelines and standards may be easier to employ in situations that are already well regulated and where the law is clear, such as
industrial relations and civil litigation. In international peace mediation, conflicting parties are usually much more diverse in nature with varying aims and objectives. The law is also not as clear when it comes to deciding on matters such as independence, autonomy, human rights violations, claims over natural resources or democracy. Therefore, codes of conduct for mediators working in an armed conflict setting cannot be as rigid or conclusive as those working in fields of family law or industrial relations; they should allow for flexibility, creativity and spontaneity on the part of the mediator. The mediator will have been trained for the purpose of peace mediation and should therefore be relied upon to decide when and how various strategies should be employed.

The concepts of neutrality, impartiality and bias are not necessary elements of codes of conduct; as empirical evidence has shown, these terms are badly defined and used interchangeably. This can cause confusion and ultimately hinder rather than help the mediation process. Research has indicated that a mediator can never be neutral; a mediator is a human being with an inherent value system that cannot be abandoned nor suppressed. Empirical evidence has also shown that it is not always useful for a mediator to remain impartial; often a certain amount of bias can have a positive impact on the mediation process.  Should the terms ‘neutrality’, ‘impartiality’ and ‘bias’ be used, they should be individually defined and it should be clearly stated how they are to impact the mediator.

The inclusion of the issue transitional justice in codes of conduct is also a topic of debate. The respect for and guarantee of human rights are of paramount importance to all individuals, and a violation of such rights, especially on a widespread and systematic level, should neither be tolerated nor ignored. Victims’ rights must be respected; victims must be compensated for their loss and/or suffering and perpetrators of human rights abuses must not enjoy impunity in order to contribute to a lasting peace and to deter such abuses in the future.  However, it is important to strike a balance when including transitional justice provisions within codes of conduct for mediators for several reasons. First of all, as discussed above, conflicting parties will not want to engage with a mediator who they perceive as potentially willing to blame and punish them for crimes they committed. Secondly, parties to a conflict may perceive transitional justice issues as imposing the values of one cultural system on to their own, and these values and ideals may be dissimilar in nature. [107] Finally, rigid rules may once again restrict the mediator and ultimately have a more negative impact on the mediation process.

Final Observations
Codes of conduct are an important step towards creating professional and uniform standards in international peace mediation. They are invaluable in this regard; although mediators receive extensive training to prepare them for all eventualities, codes of conduct are also there to serve as guidelines for honesty, respect, fairness, ethical conduct and mediator strategy. However, it is important that the codes of conduct reflect the delicate nature of international peace mediation. A mediator must be allowed the flexibility to act with creativity and initiative in order to maintain and enhance credibility and ultimately work without constraint towards a successful outcome to the mediation process.

Bibliography

Books and Articles

Bercovitch, J., 2004.
>”International Mediation and Intractable Conflict.” Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder

Bercovitch, J., & Rubin, J., 1992. “Mediation in International Relations – Multiple Approaches to Conflict Management,” St. Martin’s Press, Inc.

Burger, W., 1982. ‘Isn’t There a Better Way?’ American Bar Association Journal, Vol.68

Bush, R., 2002. ‘Substituting Mediation for Arbitration: The Growing Market for Evaluative Mediation, and What it Means for the ADR Field.’ Pepperdine Dispute Resolution Law Journal, Vol.3

Carnevale, P., & Pruitt, D., 1992. “Negotiation and Mediation,” Annual Review of Psychology, vol. 43

Carroll, E., Deputy Chief Executive, CEDR, (November 2004) ‘Redefining Mediation’, available at:
http://www.cedr.co.uk/index.php?location=/library/articles/Redefining_mediation.htm

Chigas, D.,2003. “Track II (Citizen) Diplomacy.” Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder

Conneely, S., 2001. “Family Mediation in Ireland,” Dartmouth: Ashgate

Fischer, R., 2001. “Methods of Third Party Intervention,” Berghof Handbook for Conflict Transformation, Berghof Centre for Constructive Conflict Management

Fisher, R., 1995. “Pacific, Impartial Third-Party Mediation in International Conflict: A Review and Analysis,” in “Beyond Confrontation: Learning Conflict Resolution in the Post-Cold War Era”, ed. Vasquez, J., Turner, J., Jaffe, S. & Stamato, L. University Michigan Press

Folger, J., & Bush, R., 1994. “The Promise of Mediation: Responding to Conflict through Empowerment and Recognition,” Jossey-Bass Publishers, San
Francisco.

Folger, J., & Bush, R., 2007. “Transformative Mediation and Third-Party Intervention: Ten Hallmarks of a Transformative Approach to Practice,” Mediation Quarterly, vol. 13, issue 4.

Galanter, M., 1985. “A Settlement Judge, Not a Trial Judge: Judicial Mediation in the United States.” Journal of Law and Society, Vol.12

Haig, A., 1984. “Caveat: Realism, Reagan and Foreign Policy” Macmillan, New York.

Hayner, P., 2009. “Negotiating Justice: Guidance for Mediators,” Centre for Humanitarian Dialogue

Herrberg, A., Gunduz, C., & Davis, L., 2009. “Engaging the EU in Mediation and Dialogue: Reflections and Recommendations – Synthesis report” Initiative for Peacebuilding

“Humanitarian Negotiations with Armed Groups – A Manual & Guidelines for Practitioners,” 2006. Produced by the United Nations Office for the Coordination of Humanitarian Affairs OCHA) in collaboration with members of the Inter-Agency Standing Committee (IASC)

Johnson, S., 2000. “The Case for Medical Malpractice Mediation,” Journal of Medicine and Law, Vol.5

Kleiboer, M., 1996. “Understanding Success and Failure of International Mediation” The Journal of Conflict Resolution, Vol. 40, No. 2

Kydd, A. 2003. “Which side are you on? Bias, Credibility and Mediation” American Journal of Political Science, vol. 47, no. 7

MacFarlane, J., 1999 (ed.) “Rethinking Disputes: The Mediation Alternative,” London: Cavendish Publishing

Moore,C., 1987. “The Mediation Process,” Jossey Bass

Nan, S. 2003 "Track I Diplomacy." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder

Palmer, M. and Roberts, S., 1998. “Dispute Processes: ADR and Primary Forms of Decision Making,” London: Butterworths

Riskin, L., 1994. ‘Mediator Orientations, Strategies and Techniques.’ Alternatives to High Cost Litigation, Vol. 12 (9)

Slim, R., 1992. “Small-state mediators in international relations: the Algerian mediation of the Iranian hostage crisis” in Bercovitch, J., & Rubin, J., 1992. “Mediation in International Relations – Multiple Approaches to Conflict Management,” St. Martin’s Press, Inc.

Young, O., 1967. “The Intermediaries: Third Parties in International Crises.” Princeton University Press

Zartman, I., 2005. “Escalation and Negotiation in International Conflicts”, Cambridge University Press

Zuckerman, M.J., 2005. “Track II Diplomacy: Can ‘Unofficial’ Talks Avert Disaster?” Carnegie Reporter, vol. 3, no. 3

6.2 Codes of Conduct

Chicago International Dispute Resolution Association Code of Conduct for Mediators, available at http://www.cidra.org/articles/ccm.htm

European Code of Conduct for Mediators. Developed by the European Judicial Network in Civil and Commercial Matters, with the assistance of the European Commission, available at http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf

“Humanitarian Negotiations with Armed Groups – A Manual & Guidelines for Practitioners,” 2006. Produced by the United Nations Office for the Coordination of Humanitarian Affairs OCHA) in collaboration with members of the Inter-Agency Standing Committee (IASC).

International Alert Code of Conduct, available at http://www.international-alert.org/about/index.php

International Mediator’s Institute Code of Conduct, available at http://www.imimediation.org/code_professional_conduct-.html

The Mediators’ Institute of Ireland Code of Ethics and Professional Conduct, available at http://www.themii.ie/documents/CoE.pdf

Acknowledgements

The authors wish to thank the many people who answered their questionnaires and gave interviews on their experiences of international peace mediation as part of the project ‘Mediation in Conflict Resolution: What Makes for Successful Peace Negotiations?’, undertaken in the Centre for International Studies, Dublin City University (http://www.dcu.ie/~cis/research/project-details.php?ProjectID=15). The authors are grateful for funding received from DCU’s University Designated Research Centre scheme, under which the preliminary research was undertaken. The authors are also very grateful to IRCHSS and the Department of Foreign Affairs Conflict Resolution Unit for providing funding for a further research project on the role of the EU in international peace mediation which facilitated the completion of this article.


[1] See Bercovitch, J., & Rubin, J., 1992. “Mediation in International Relations – Multiple Approaches to Conflict Management,” St. Martin’s Press, Inc. p. 1-2; Carnevale, P., & Pruitt, D., 1992. “Negotiation and Mediation,” Annual Review of Psychology, vol. 43, p. 561.

[2] The Human Security Brief 2007 states that a growing number of conflicts are ending in “negotiated settlements” rather than fought out until one sides prevails militarily and provides statistics on this trend – see Human Security Brief 2007, Human Security Report Project, Simon Fraser University, Canada, 2007. The International Crisis Behavior project states that mediation was employed in 131 of the 447 crises which occurred around the world between 1918 and 2005 – See http://www.cidcm.umd.edu/icb. The definition of “crisis” used by this project has two elements: “(1) a change in type and / or an increase in intensity of disruptive (i.e., hostile verbal or physical) interactions between two or more states, with a heightened probability of military hostilities that, in turn, (2) destabilizes their relationship and challenges the structure of an international system – global, dominant, or subsystem” – Michael Brecher and Jonathan Wilkenfeld, A Study of Crisis, 2nd ed, Ann Arbor: University of Michigan Press, 2000, pp. 4 – 5.

[3] Although mediation has been practiced for hundreds of years, in-depth studies and research on intermediary intervention date from the late 1960s, beginning with Young (1967), Burton (1969), and Stenelo (1972). Kleiboer, M., 1996. “Understanding Success and Failure of International Mediation”, Journal of Conflict Resolution, Vol. 40, No. 2. p. 360. For the purposes of this article, international conflict mediation shall refer to the mediation by a third party between two or more conflicting parties to an armed conflict of both inter- and intra-state natures. There are various definitions of mediation, as will be discussed further on in this article.

[4] For further discussion of the professionalization of international conflict mediation, see for example, Herrberg, A., 2008. “Perceptions of International Peace Mediation in the EU,” Initiative for Peacebuilding, p. 19-23.


[5]
It is important to note that mediation is different from negotiation and arbitration.


[6]
European Code of Conduct, available at http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf.


[7]
Eileen Carroll, Deputy Chief Executive, CEDR, (November 2004) “Redefining Mediation”, available at: http://www.cedr.co.uk/index.php?location=/library/articles/Redefining_mediation.htm.


[8]
Kleiboer, 1996, p. 360.


[9]
Herrberg, 2008, p. 9.


[10]
Moore, C., 1987. “The Mediation Process,” Jossey Bass, p. 14, cited in Bercovitch and Rubin 1992, p. 6.


[11]
Herrberg, 2008, p. 9.


[12]
MacFarlane, J., 1999. lang=IT>’The Mediation Alternative’ pp.1-21 in MacFarlane, J., 1999 (ed.) “Rethinking Disputes: The Mediation Alternative,” London: Cavendish Publishing, p. 2.


[13]
Johnson, S., 2000. “The Case for Medical Malpractice Mediation,” Journal of Medicine and Law, Vol.5, p 27; Conneely, S., 2001. “Family Mediation in Ireland,” Dartmouth: Ashgate, p. 9.


[14]
Palmer, M. and Roberts, S., 1998. “Dispute Processes: ADR and Primary Forms of Decision Making,” London: Butterworths, p.104, p.126.


[15]
Palmer, M. and Roberts, S., 1998, p.125; Riskin, L., 1994. “Mediator Orientations, Strategies and Techniques” Alternatives to High Cost Litigation, Vol. 12, p. 111.


[16]
Riskin, 1994. p.111


[17]
Burger, W., 1982. “Isn’t There a Better Way?” American Bar Association Journal, Vol.68, pp. 274-277; Galanter, M., 1985. “A Settlement Judge, Not a Trial Judge: Judicial Mediation in the United States” Journal of Law and Society, Vol.12, pp.1-18


[18]
Folger & Bush, 1994. p 6.


[19]
Riskin, L., 1994. ‘Mediator Orientations, Strategies and Techniques.’ Alternatives to High Cost Litigation, Vol. 12 (9), p.111; Riskin was the first to identify the features of evaluative mediation. See also Bush, R., 2002. “Substituting Mediation for Arbitration: The Growing Market for Evaluative Mediation, and What it Means for the ADR Field.” Pepperdine Dispute Resolution Law Journal, Vol.3, p.113.


[20]
Palmer and Roberts, 1998. p.126.


[21]
Riskin, 1994. p.111.


[22]
Palmer and Roberts, 1998. p.126.


[23]
Riskin, 1994. p.111.


[24]
Ibid at p.112.


[25]
Riskin, 1994, p.112.


[26]
Ibid.


[27]
Folger and Bush, 1994, p.12.


[28]
Riskin, 1994. p. 112.


[29]
Aspinall, E., 2005, “The Helsinki Agreement – A More Promising Peace for Aceh?”, East-West Center, Washington p. 12.

[30] See Folger, J., & Bush, R., 1994. The other three types of mediation, regardless of the label used, have been researched and discussed since the 1960s.

[31] Folger, J., & Bush, R., 2007. “Transformative Mediation and Third-Party Intervention: Ten
Hallmarks of a Transformative Approach to Practice,” Mediation Quarterly, vol. 13, issue 4. p. 264.


[32]
Folger & Bush, 1994. p. 87.


[33]
Folger & Bush, 1994. p. 97.


[34]
Folger & Bush, 1994. p. 87.


[35]
Herrberg et al, 2009. p. 13.


[36]
Carter, J., 2006. “Palestine – Peace not Apartheid,” Simon & Schuster, Inc. p. 45.


[37]
Bercovitch, J., 2004. “International Mediation and Intractable Conflict.” Beyond Intractability, eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder, p. 2.


[38]
Cited in Kleiboer, 1996. p. 374.

[39] Herrberg, A., Gunduz, C., & Davis, L., 2009. “ Engaging the EU in Mediation and Dialogue:
Reflections and Recommendations – Synthesis report” Initiative for Peacebuilding, p. 13.


[40]
Cited in Kleiboer, 1996. p. 374.


[41]
Bercovitch, 2004. p. 2.


[42]
Bercovitch, 2004. p. 2.


[43]
Cited in Kleiboer, 1996. p. 374.


[44]
lang=FR> Herrberg et al, 2009. p. 13.


[45]
lang=FR> Fischer, R., 2001. “Methods of Third Party Intervention,” Berghof Handbook for Conflict Transformation, Berghof Centre for Constructive Conflict Management, p. 5.


[46]
Aggestam in Zartman, I., 2005. “Escalation and Negotiation in International Conflicts”, Cambridge University Press, p. 280.


[47]
Aggestam in Zartman, 2005. p. 281


[48]
Nan, S. 2003.


[49]
Bercovitch, 2004. p. 3; Fischer, 2001. p. 7; Nan, 2003.


[50]
Zuckerman, M.J., 2005. “Track II Diplomacy: Can ‘Unofficial’ Talks Avert Disaster?” Carnegie Reporter, vol. 3, no. 3.


[51]
Cited in Chigas, D., 2003. “Track II (Citizen) Diplomacy.” Beyond Intractability, eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder.


[52]
Bercovitch, 2004. p. 3.


[53]
Aceh is a special territory of Indonesia, located on the northern tip of the island of Sumatra. The conflict was mainly between the Government of Indonesia and the Free Aceh Movement (GAM) and centred on the GAM’s desire for independence.


[54]
Herrberg et al, 2009. p. 14.


[55]
Herrberg, 2008. p. 17; Bercovitch, 2004. p. 3


[56]
Interview, anonymous.


[57]
Bercovitch, 2004. p. 3.


[58]
Chigas, 2003.


[59]
See www.genevacall.org.


[60]
See for example Fischer, 2001; Bercovitch, 2004; Herrberg, 2008. This idea was also highlighted several times during interviews with academics and practitioners as part of the project entitled “Mediation in Conflict Resolution: What Makes for Successful Peace Negotiations?”, undertaken in the Centre for International Studies, Dublin City University, 2008 – 2009, http://www.dcu.ie/~cis/research/conflict-security-studies.php .


[61]
Herrberg, 2008. p. 18.


[62]
Fischer, 2001. p. 2.


[63]
Herrberg, 2008. p. 21.


[64]
Herrberg, 2008. p. 21.


[65]
This conclusion is drawn from an analysis of a number of interviews and questionnaires undertaken with mediation practitioners.


[66]
Interview, anonymous.


[67]
Interview, anonymous.


[68]
This conclusion is drawn from an analysis of a number of interviews and questionnaires undertaken with mediation practitioners.


[69]
The European Code of Conduct defines mediation as “any process where two or more parties agree to the appointment of a third party […] to help the parties to solve a dispute by reaching an agreement without adjudication and regardless of how that process may be called or commonly referred to in each Member State.”


[70]
Bercovitch & Rubin, 1992. p. 4.


[71]
“Humanitarian Negotiations with Armed Groups – A Manual & Guidelines for Practitioners,” 2006. style=’font-weight:normal’>Produced by the United Nations Office for the Coordination of Humanitarian Affairs OCHA) in collaboration with members of the Inter-Agency Standing Committee (IASC).


[72]
Commentary, Code of Conduct, International Alert, p. 8.


[73]
Interview with Johan Galtung, 15th January 2009.


[74]
Article 2.1, “European Code of Conduct for Mediators,” developed by the European Judicial Network in Civil and Commercial Matters, with the assistance of the European Commission, available at http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf


[75]
Article 2.2, European Code of Conduct for Mediators.


[76]
Kleiboer, 1996. p. 369.


[77]
Article 2.2.3, International Mediation Institute, Code of Professional Conduct, available at http://www.imimediation.org/code_professional_conduct-.html


[78]
See for example Fisher, R., 1995. “Pacific, Impartial Third-Party Mediation in International Conflict: A Review and Analysis,” in “Beyond Confrontation: Learning Conflict Resolution in the Post-Cold War Era”, ed. Vasquez, J., Turner, J., Jaffe, S. & Stamato, L. University Michigan Press, p. 39-59; Young, O., 1967. “The Intermediaries: Third Parties in International Crises.” Princeton University Press; Haig, A., 1984. “Caveat: Realism, Reagan and Foreign Policy” Macmillan, New York.


[79]
Young, 1967. p. 81.


[80]
Haig, 1984. p. 266.


[81]
Touval, S. & Zartman, I., 1989. “Mediation in International Conflicts” p. 118. Cited in Kydd, 2003. “Which side are you on? Bias, Credibility and Mediation” American Journal of Political Science, vol. 47, no. 7. p. 598.


[82]
Kydd, 2003. p. 597.


[83]
Kydd, 2003. p. 597.


[84]
Kydd, 2003.


[85]
Kleiboer, 1996. p. 370.


[86]
Kydd, 2003. p. 599.


[87]
Interview with Antje Herrberg, 26th August 2008..


[88]
This conclusion is drawn from a number of interviews and questionnaires with academics and practitioners in the field.


[89]
Slim, R., 1992. “Small-state mediators in international relations: the Algerian mediation of the Iranian hostage crisis” in Bercovitch & Rubin, 1992. p. 207.


[90]
Slim, 1992. p. 208.


[91]
Herrberg, 2008, p. 15.


[92]
Kleiboer, 1996. p. 371.


[93]
Slim, 1992, p. 207.


[94]
Kleiboer, 1996, p. 369.


[95]
Hayner, P., 2009. “Negotiating Justice: Guidance for Mediators,” Centre for Humanitarian Dialogue


[96]
International Alert Code of Conduct.


[97]
International Alert Code of Conduct.


[98]
Interview with Herrberg, 26th August 2008.


[99]
Hayner, 2009, p. 14.

[100] Hayner, 2009. p. 14. Amnesty may be granted for crimes such as insurrection or treason, and this is encouraged by and for parties of Additional Protocol II to the 1949 Geneva Conventions.


[101]
lang=FR> Herrberg et al, 2009. p. 18.


[102]
lang=FR> Herrberg et al, 2009. p. 18.


[103]
Hayner, 2009. p. 5.


[104]
Herrberg et al, 2009. p. 19; Hayner, 2009. p. 8.


[105]
See http://www.dcu.ie/~cis/research/conflict-security-studies.php .


[106]
Herrberg et al, 2009, p. 21.


[107]
Cultural relativism may also apply to the mediation process itself. For example, ‘western’ mediators may wish to include female mediators as part of their team; however this may be deemed unacceptable in certain Muslim countries.

2 Responses to International Peace Mediators and Codes of Conduct: An Analysis

  1. Christine says:

    Kinldy send us a list of mediators/mediation organisations in Africa, We researching on this and further help will be appreciated

    Christine
    Project Coordinator

  2. Christine says:

    Kindly share your email address to facilitate further communication in our research work.

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