International Annual UN-Water Zaragoza Conference 2012/2013
Preparing for the 2013 International Year. Water Cooperation: Making it Happen! 8-10 January 2013

Mediation and dispute resolution mechanisms

Mediation and dispute resolution

A more in depth look at the process to a more holistic and integrated approach to water management helps demonstrate why capacity building and a stronger focus on mediation must be taken.

Alternative Dispute Resolution (ADR, sometimes also called “Appropriate Dispute Resolution”) is a general term, used to define a set of approaches and techniques aimed at resolving disputes in a non-confrontational way. It covers a broad spectrum of approaches, from party-to-party engagement in negotiations as the most direct way to reach a mutually accepted resolution, to arbitration and adjudication at the other end, where an external party imposes a solution. Somewhere along the axis of ADR approaches between these two extremes lies “mediation,” a process by which a third party aids the disputants to reach a mutually agreed solution.

Conflicts have existed in all cultures, religions, and societies since time immemorial, as long as humans have walked the Earth. Philosophies and procedures for dealing with conflicts have been part of the human heritage, differing between cultures and societies. Nations, groups, and individuals have tried throughout history to manage conflicts in order to minimize the negative and undesirable effects that they may pose. Conflicts can develop in any situation where people interact, in every situation where two or more persons, or groups of people, perceive that their interests are opposing, and that these interests cannot be met to the satisfaction of all the parties involved.

Dealing with conflicts – “conflict management” or “conflict resolution” as it has come to be called in professional circles – is as old as humanity itself. Stories of handling conflicts and the art of managing them are told at length throughout the history of every nation and ethnic group who share the same history.

Throughout history, individuals and groups used a variety of ways to resolve their disputes, trying to reach a resolution acceptable to all parties. There is a common belief in all cultures that it is best to resolve disputes and to reach an agreed end to them, because conflict is a destructive force.

In the twentieth century many reached the understanding that disputes are normal in human society, and not necessarily destructive, and that if they do not get out of hand they may have within them a potential for growth, maturity, and social changes, an opportunity for new ways of thinking and new experiences.

Much can be learned about the different ways in which conflicts have been prevented in the past. In older societies, resolving disputes was considered a unique ability reserved for the wise and the elders of the community or for religious leaders. More recently, conflict prevention has become a primary focus of interest for everyone, and this has resulted in an ever-expanding field of study and practice.

The field of conflict resolution gained momentum in the last three decades of the twentieth century. It has developed into a widely accepted field of study, where skills and strategies are being taught, and changes in philosophical attitudes occur through training and enhanced self-awareness. The increasing academic activity and practical training initiatives have generated a vast and expanding body of research and publications.

The field of “conflict resolution” has matured as a multidisciplinary field involving psychology, sociology, social studies, law, business, anthropology, gender studies, political sciences, and international relations.

Some conflicts may not be resolved easily, and can last many years. Sometimes these conflicts persist in spite of the fact that they cause heavy losses of resources, and even human life. According to a study at Stanford University (Arrow et al., 1995) there are three categories of barriers to resolving conflicts:

  • Tactical and strategic barriers; these stem from the parties’ efforts to maximize short or long term gains.
  • Psychological barriers; these stem from differences in social identity, needs, fear, interpretation, values, and perceptions of one another.
  • Organizational, institutional and structural barriers; these can disrupt the transfer of information, and prevent leaders from reaching decisions that are in the interests of the parties in dispute.

A conflict may store within it the potential for a future major dispute, but at the same time it also contains the possibility of future creative cooperation, provided the parties seek what is called the “win–win solution.” To accomplish this, one must learn to negotiate in a manner that is less competitive and adversarial, thereby invoking the potential for cooperation.

By working together as “joint problem solvers” seeking joint solutions and not working against one another, the participants can “enlarge the pie” that is to be divided. This can be done either by negotiation, or with the help of an impartial third party who will act as mediator.

Third-party intervention is used when a negotiation reaches an impasse. It is used to restore belief in the possibility of a beneficial resolution for the parties, future dialogue, and restored relationships, while leaving the control over the decisions with the parties.

An outside third party, whether a person, a group of people, a representative of a state, or an international organization can act as a mediator, in an attempt to help the parties reach an understanding, and an agreed solution to the conflict.

A third party, a neutral, can also act as an arbitrator, hear the parties’ arguments and reach a decision which can be binding, or non-binding according to the agreement made beforehand.

Adjudication is another method that can be used as an alternative in the international arena (The International Court in The Hague) and in the national local system. The courts have the ability to enforce the law in the case of a failure of the parties to reach agreement through negotiation or mediation. There is a law, and a way to enforce it without the consent of the parties.

In international disputes, where States are involved, when problems arise due to opposing interests, such as security and/or resources, an outside enforcer cannot act where it is not acceptable to one or more of the parties involved. Ruling by the International Court can end the conflict only if the two countries agree to abide by its ruling.

Conflict prevention, de-escalation,management, and resolution can all be applied to conflicts involving water. The choice of the applicable process will depend on the particular circumstances and context of the water conflict. The conference will examine each of these key processes and then review their potential role in water conflicts.

Stakeholder Platforms

Stakeholder platforms (SPs) are forums in which different stakeholders have the space to articulate their concerns and then come to negotiated settlements. They should exist at all levels of water management, from the local to transboundary, with the makeup of the stakeholders involved changing appropriately at each level. Among other functions, SPs provide the venue in which mediation techniques can be applied.

Stakeholder engagement and public participation are key to the coordination of various actors and interests at the river basin level. They also help ensure the effective implementation of governance frameworks. Indeed, bottom-up approaches can help identify the major conflicts and problems on a local level. These may otherwise stop the successful implementation of best practices in adaptive water governance, which is often provided in a top-down manner. Bottom-up approaches, for instance, use existing community organizations or social structures for public hearings, forums, networking and dialogue in regions with low public participation. Participatory approaches help increase public awareness of water resources conservation methods and contribute to establishing accountability of local authorities by involving water users in decision-making activities

It is important to diversify mechanisms and tools for interactions and partnership building among stakeholders. Voluntary partnerships on a local level are in fact more viable for small river basins, as they are functional while establishing coordination between municipalities and other local authorities.

Water Diplomacy

International diplomacy in relation to water involves the establishment of a global framework for water governance which may then be used in the further development of multilateral and bilateral water treaties and agreements. These can help define rights to use, water allocations, the appropriate bodies to deal with disputes, and so on.

Governments and institutions which have broader powers and responsibilities extending to the transboundary and regional scales must take the initiative to develop and adopt international and national frameworks which outline guiding principles, rules of engagement, and procedures pertaining to water resources. If countries have jointly signed treaties and conventions, then the rules of engagement and guiding principles are more clear and thus facilitate negotiation. Currently, the United Nations Convention on the Protection and Use of Transboundary Watercourses and International Lakes (the Water Convention), and the Convention on the Law of the Non-Navigational Uses of International Watercourses (the UN Watercourses Convention) provide useful frameworks. Momentum to bring these conventions into force has been growing. One of the objectives to promote diplomacy will be to highlight to the importance of these conventions and their ability to enhance cooperation. As well, country leaders need to be encouraged to continue negotiations that will help additional countries to ratify the conventions.

To help in this initiative, further dimensions of cooperation must be explored. Many countries may fear the repercussions of entering into cooperative agreements with other countries, and these legitimate concerns need to be better understood and addressed.