Please Post Your Answers Here
Submitted by Huan Pham (Jack)
Situation:
You are a human rights practitioner; You are a conflict mediator. You are having a negotiation about how to address human rights violations: through courts or through mediation.
Questions:
What are your major concerns for each of the options?
Concerns for Courts Option as a Human Rights Practitioner may Include:
Remedy may be unpredictable
Justice may not be achieved
Political Influence may have a negative impact on human rights
Slow and drawn out
Costly
Concerns for the Mediation Option as a Human Rights Practitioner may Include:
Justice may not be achieved
Wider Public Interest may not be addressed
Human rights may not be addressed; Deals over human rights
Concerns for Courts Option as a Conflict Mediator may Include:
Legalities risking real mutual agreement
Justice achieved but conflict may continue
Peace may not be achieved
Concerns for the Mediation Option as a Conflict Mediator may Include:
Lack of trust by parties
Continued conflict
Unsustainable peace
Lack of participation by parties
Lack of willingness
Political and/or cultural persuasions
What do you think will be the concerns of the other side for each of the options?
Concerns for Courts Option by the Other Side
Costly
Justice may not be achieved
May not be heard
Political influence may create an unfair advantage
Concerns for the Mediation Option by the Other Side
Power imbalance
Retaliation
Lack of participation by parties
Lack of willingness to participate
Partiality of the facilitator (HR or CR)
What would be some basic rules to apply in negotiations between HR and CR practitioners, in other conflicts, too?
Basic Rules may Include:
Impartiality
Knowledgeable of the issues
Fairness
Knowledgeable of the culture
Manage emotions
Allow each side to fully tell their story
CR and HR practitioners should not fall in love with their own solution
Understanding of human rights (if it relates to human rights)
Submitted by Huan Pham (Jack)
Situation:
You are a human rights practitioner; You are a conflict mediator. You are having a negotiation about how to address human rights violations: through courts or through mediation.
Questions:
What are your major concerns for each of the options?
Concerns for Courts Option as a Human Rights Practitioner may Include:
Remedy may be unpredictable
Justice may not be achieved
Political Influence may have a negative impact on human rights
Slow and drawn out
Costly
Concerns for the Mediation Option as a Human Rights Practitioner may Include:
Justice may not be achieved
Wider Public Interest may not be addressed
Human rights may not be addressed; Deals over human rights
Concerns for Courts Option as a Conflict Mediator may Include:
Legalities risking real mutual agreement
Justice achieved but conflict may continue
Peace may not be achieved
Concerns for the Mediation Option as a Conflict Mediator may Include:
Lack of trust by parties
Continued conflict
Unsustainable peace
Lack of participation by parties
Lack of willingness
Political and/or cultural persuasions
What do you think will be the concerns of the other side for each of the options?
Concerns for Courts Option by the Other Side
Costly
Justice may not be achieved
May not be heard
Political influence may create an unfair advantage
Concerns for the Mediation Option by the Other Side
Power imbalance
Retaliation
Lack of participation by parties
Lack of willingness to participate
Partiality of the facilitator (HR or CR)
What would be some basic rules to apply in negotiations between HR and CR practitioners, in other conflicts, too?
Basic Rules may Include:
Impartiality
Knowledgeable of the issues
Fairness
Knowledgeable of the culture
Manage emotions
Allow each side to fully tell their story
CR and HR practitioners should not fall in love with their own solution
Understanding of human rights (if it relates to human rights)
You are a human rights practitioner; you are a conflict mediator. You are having a negotiation about how to address human rights violations: through courts or through mediation.
What are your major concerns for each of the options?
Concerns about going through the Court system
- Any solution is imposed on the parties
- The parties have no control over either the process or the outcome, they may be simply pawns of others who look at the statistics rather than to the issues
- The discussions are not party driven.The complainant is simply there to give evidence, as is the respondent
- Someone wins and someone looses
- The courts traditionally do not focus on relationships
- It is costly to both parties
Concerns about going through mediation
- There is a power imbalance
- A mediation is not a public forum so that issues may not be shared by the public
- At the end of the day justice might not happen
What do you think will be the concerns of the other side for each of the options?
- Human rights activists and mediation
- The human rights activist may not want the perpetrators of the violations at the table
- The human rights activists may see ADR as 'soft' and not dealing with the issues
- The human rights activist may feel that justice will not happen
4.Mediation may not be a public enough forum for the human rights activists
5. Not all parties may feel safe participating
Human Rights Activists and Court
1. Court may take too long
2. Good lawyers will get the perpetrators off of the hook
- ADR practitioners and Court
- ADR practitioners may not trust the court system to find solutions that both parties agree to
- Mediation is built on the parties crafting their own agreement and in a court this is unlikely
- An adjudicator in a court will never have the same understanding as the parties to a conflict as to how they are affected by the conflict and violence.Decisions may be removed from the actual causes and effects of the conflict and be what seems 'fair' to the adjudicator, but may not necessarily be 'fair' to the parties in the circumstances.
- Courts tend to be sometimes wrapped up with technicalities and that becomes the focus of the process rather than the issues of human rights violations
- Court proceedings can take a very long time
- Court proceedings are costly
ARD practitioners and Mediation
-
ADR practitioners prefer mediation
- There may be a power imbalance
What would be some basic rules to apply in negotiations between HR and CR practitioners, in other conflicts, too?
- Impartiality
- Neutrality
- Cultural sensitivity
- Parties must be allowed to speak without fear of retaliation
- Negotiators should make all efforts not to suggest solutions to the parties
You are a human rights practitioner; You are a conflict mediator. You are having a negotiation about how to address human rights violations: through courts or through mediation. What are your major concerns for each of the options? What do you think will be the concerns of the other side for each of the options?
What would be some basic rules to apply in negotiations between HR and CR practitioners, in other conflicts, too?
HR practitioner: mediation
− There could be power imbalances, better addressed by a judge
− May not bring about "justice” (punishment won't be imposed)
− Don't want to collaborate with persons who have caused such harm
− Mediator may not be impartial, reasonable or fair
− Lack of publicity of serious harms
− Might be safety concerns /retaliation concerns
CR practitioner courts:
− Parties might not be satisfied with the result
− Costly and harmful to relive
− Might not end the larger conflict to prosecute an individual through courts
− Lack of collaboration and mutual cooperation to come to a resolution
− Win-lose situation
HR practitioner: courts
− Harmful to victim, long and drawn out
− Retaliation by violator's supporters
− Technicalities of the process that could lead to injustice
− Slow and costly process
CR Practitioner: mediation
− Conflict continues
− Parties don't cooperate or trust each other
− Parties give up or retaliate
Basic rules:
− Neutral
− Fair and reasonable
− Facilitate discussions and manage risks and emotions
− Build insights to allow others to understand each others' perspectives
− Culturally sensitive
− Knowledge of the conflict and underlying issues and causes
You are a human rights practitioner; you are a conflict mediator. You are having a negotiation about how to address human rights violations: through courts or through mediation.
What are your major concerns for each of the options?
HR Practitioner in the courts-
-Cumbersome processes that could drag on for years
-Could potentially draw more attention & exploit victims further in the public eye.
-Could be lopsided justice if up against a larger/wealthier opponent.
-Expensive process that the victim might not be able to afford or even benefit from.
-Law could have loopholes that lead to technicalities and injustice.
-Unfavorable decision to victim is binding.
HR Practitioner in mediation-
-Progress would not be made on a larger scale for people of the same affliction or issue (Individual vs. public policy change.)
-Might not be as binding as going through court system & "justice” might not be served.
-Mediator might not be impartial, have personal biases.
- Victim might not want to be in the same room as the offender, leading to a lack of collaboration. Uncomfortable environment for negotiation.
Conflict mediator in Court-
-Very little room for "negotiation”, flexibility, & progressive/helpful dialogue.
-Verdict is more black & white. Might not make either side happy.
-Expensive process for potential ineffective results.
-Depending on the verdict, could create bigger public dissatisfaction. Spurring future conflict.
Conflict mediator in mediation-
- Neither side trusts each other, creating a difficult environment to negotiate.
-Mediator has to earn the trust of both sides and be perceived as impartial.
-No compromise can be reached & the conflict continues.
-If Human rights report comes out, could derail the whole process.
What would be some basic rules to apply in negotiations between HR and CR practitioners, in other conflicts, too?
-Try to show both sides you are neutral.
-Try to create an environment where both parties feel comfortable to discuss their side without fear of repercussion or judgment.
-Be culturally and historically sensitive.
-Try to encourage the parties to come to a solution on their own.
-HR & Conflict mediators work together for peace & justice.
What are your major concerns for each of the options?
Concerns for Courts Option as a Human Rights Practitioner may Include:
Costly
Time consuming
Uncertainty of the outcome for the poor and minority
Concerns for the Mediation Option as a Human Rights Practitioner may Include:
Neutrality of mediators
May not challenge status quo
Protection of aggressor from facing the law
Concerns for Courts Option as a Conflict Mediator may Include:
The implication of litigation to peace
Too long
Inflexibility
Concerns for the Mediation Option as a Conflict Mediator may Include:
Difficulty of getting all parties to the negotiation
May be moralized
Openness and trust
What would be some basic rules to APPLY in negotiations between HR and CR practitioners, in other conflicts, too?
Basic Rules may Include:
Neutrality
Openness
Flexibility
Fairness
Inclusiveness
Balancing emotions and facts
CR and HR practitioners should tolerate each other as partners seeking the same thing – peace and justice.
Both HR and CR practitioners are concerned about the perceived legitimacy and fairness of how HR violations are addressed.
Perceived legitimacy and authority of the process: Is the process seen as legitimate by the participating parties? By the larger society? The international community?
- HR practitioner concerns about courts: What is the most appropriate court to hear the case? Is there potential for the case to be politicized? Will a decision be the most effective method to combat impunity against HR violations? Will a drawn out process detract from the perceived legitimacy of the process?
- CR practitioner concerns about courts: One party, or even both, may be reluctant to go to go to court. Parties and larger society may not feel ownership over the process. Standards for the court in terms of presented evidence may not be culturally in-line with victim expectations for participation.
- HR practitioner concerns about mediation: Is the process public and transparent? Is the mediator impartial? Can the mediation be legitimate if the outcome is contrary to HR law? Will other people who are victim of similar crimes view the process as legitimate? More mediations will create an expectation that victims should mediate instead of going to court- but many victims would not be comfortable with mediation and only court decisions can handle massive violations of HRs.
- CR practitioner concerns about mediation: If the accused party does not trust the legitimacy and authority of the process, then they will see no protections within the mediation process and won't see a reason to actively participate. If there is no resolution, is the legitimacy of future mediations be undermined? If there is a mediated resolutions, will it hold?
- HR practitioner concerns about courts: Are both sides provided equal counsel ? Is free, accessible counsel provided to both victims and perpetrators, especially those from marginalized parts of society?
- CR practitioner concerns about courts: Law controls the outcome, not the parties' own understanding of justice/fairness in the situation. Both sides have less control over the process and the outcome may not be favorable to either side.
- HR practitioner concerns about mediation: There need to be some "standards” of justice in order to combat impunity and mediation opens up to a too wide range of possible outcomes. By perpetrating certain kinds of human rights violations, perpetrators "lose” their right to mediate or approach a judicial process as an equal. There is a need for validating a victim's sense of injustice, not a mediator remaining neutral to it.
- CR practitioner concerns about mediation: Although mediation can arguably support victim healing, can it also aggravate? If truly neutral, how can a mediator address power imbalances? (Or if using a form of supported of mediation to improve fairness, will it detract from legitimacy?)
• In what form are demands for justice taking place? (There are multiple voices here- individual victims, communities, countries, and the international community. Take into account culturally familiar forms of justice-seeking.)
• Are there ways in which this case is larger than its immediate circumstances? (For example, is the outcome likely to affect conflict levels? Is it one case among many similar HR violations? What is the public profile?)
• What forms of power imbalances are at play and how will the choice of mechanisms for addressing the HR violation magnify or reduce those relations?
• How can parties participate in a way where they feel heard? How can the process help each party be more open to understanding the other's experience?
CONCERNS FOR COURTS OPTION
-Duration
-Fairness
-Cost
-Resolution of conflict, true and long-term peace
CONCERNS FOR THE MEDIATION OPTION
-Trust of all parties in the process
-Accessibility to all
-Partiality
-Inability to ensure Structural change
-Protection of aggressor from facing the law
CONCERNS FOR COURTS OPTION AS A HUMAN RIGHTS PRACTITIONER
-Not sure justice the poor and marginalized victims will receive justice
-Always costly that low income person can hardly afford the process
-Drags forever that the poor will give up
-May not adequately address systemic injustice as maybe perpetuated by the structure
CONCERNS FOR THE MEDIATION OPTION AS A HUMAN RIGHTS PRACTITIONER
-Often couched in language difficult for the minority
-May be patronizing to the victim
-May protect the perpetrators
-Does not address system and structural issues
CONCERNS FOR COURTS OPTION AS A CONFLICT MEDIATOR
-Litigation does not guarantee peace
-Inflexibility of the process may deter peace process
-Court process takes along that might prolong a conflict
-It obstructs opportunities for negotiation and conciliation
CONCERNS FOR THE MEDIATION OPTION AS A CONFLICT MEDIATOR
-Uncertain that HR would allow the participation of perpetrator at the negotiation
-Trust of all parties in the process
-May become too emotionally charged
-Shaming and blaming may obstruct the process
WHAT WOULD BE SOME BASIC RULES TOAPPLYIN NEGOTIATIONS BETWEEN HR AND CR PRACTITIONERS, IN OTHER CONFLICTS, TOO?
-Impartiality
-Neutrality
-Seek facts and be less emotionally governed
-Collaboration with other stakeholders
-Understanding of the issues behind the conflict
-Humility
1. You are a human rights practitioner; You are a conflict mediator. You are having a negotiation about how to address human rights violations: through courts or through mediation. What are your major concerns for each of the options? What do you think will be the concerns of the other side for each of the options?
My major concern of bringing a case to the court is how it would affect the individual/group complainant. Will they be humiliated? Will a court process give the result we are seeking for? Will the complainant gain on a court process?
I would also be worried about how the different stakeholders would react to a court process. When individuals or groups have been violated a lot of stakeholders are involved in different ways. It is important to maintain a constructive dialog with the different parties even if the case has to be solved through the court. But is this realistic?
Also, governments and corporations do not appreciate all the bad publicity court cases involve. A court case can therefore have major (negative) affect/influence on the dialog between the complainant and the adversary.
I actually work with a case where we have used mediation over several years but the situation for the injured party has not been improved. The violations are so grave that we are no considering court proses as last solution. Our main concern is that a court process can lead to an even worse situation for the injured party. If we lose the case it will be a verification of the government's (bad) behavior which they can carry on. It can also end the dialog/mediation we have today with the different parties. Even if this dialog hasn't led to a result a dialogue is valuable in itself.
2. What would be some basic rules to apply in negotiations between HR and CR practitioners, in other conflicts, too?
I think compromise is a key word. HR and CR practitioners can never fully agree on the methods and the result of a process. It is therefore crucial that they try to understand each other's skills and take fully advantage of the broadness in their different qualifications. I also believe it's important to focus on the tension/dynamics between the parties and try to minimize negative tension. I also think that the two different practitioners should discuss and come to an agreement about the following:
1.Does the case deserve public attention or should it be confidential?
2.How can we ensure public benefit and in the same time protect the aggrieved individual?
3.Do we have only one or several favorable solutions?
4.Are there topics we should not discuss?
5.Are their some specific stakeholders we want to influence more than others?
You are a human rights practitioner; You are a conflict mediator. You are having a negotiation about how to address human rights violations: through courts or through mediation.
What are your major concerns for each of the options?
1. Concerns for Courts Option as a Human Rights Practitioner may Include: Not be sure justice will be applied in the way law impose it. Fear to injusticia.
2. Concerns for the Mediation Option as a Human Rights Practitioner may Include the power imbalance, and the possibility of not having applied justice in the way law impose it. Human Right practitioner as mediator may not be imparcial, and the possibility of protection for perpetrators.
3. Concerns for Courts Option as a Conflict Mediator may Include: the fact of not having flexibility or dialogue. Depending on the verdict, could créate bigger public dissatisfaction.
4. Concerns for the Mediation Option as a Conflict Mediator may Include, difficult environment to negotiate, and not to find the compromise expected.
What would be some basic rules to apply in negotiations between HR and CR practitioners, in other conflicts, too?
Both sides must be shown are neutral and create and comfortable environment to negotiate and discuss without fear. None of the sides actually agree with the other in methods and the how to work during the process.
Respect of the culture of both sides.
They also should collaborate with other stakeholders.
You are a human rights practitioner; You are a conflict mediator. You are having a negotiation about how to address human rights violations: through courts or through mediation. What are your major concerns for each of the options? What do you think will be the concerns of the other side for each of the options?
Addressing human rights is not easy. And the way to address it can be very problematical. Whatever ways you use have some positives and negatives aspect even the most important is the final results.
Concerns through courts:
-Practitioner
Privacy,
Involvement and commitment
Fairness
Cost
Time frame,
Witness
Win win solution
Peace implementation
Justice
-Others sides:
Privacy,
Involvement and commitment
Cost
Time frame,
Concerns through mediation
-Practitioner
Involvement
Duration,
Peace implementation
Exchanges environment
-Others sides
Fairness, Justice
Impartiality
Objectivity
Justice
What would be some basic rules to apply in negotiations between HR and CR practitioners, in other conflicts, too?
Get a very good understanding of the conflict and get to know the stakeholder.
Impartiality
Fairness
Justness
Frankness
Flexibility
Neutral and held the mediation in a neutral environment
Use all the resources and tools required to get a win win acceptable solution
You are a human rights practitioner; You are a conflict mediator. You are having a negotiation about how to address human rights violations through courts or through mediation.
I haven't worked in both fields yet, and it is hard for me judge from the readings.
As I wrote a paper on interethnic conflict in my country, I decided it is appropriate to answer for the questions based on the both sides exemplary experience in above-mentioned conflict.
HR practitioner through courts:
-Justice may not be achieved
-Fairness
-Costly
-Time consuming
CR actors through courts:
-There is no room for a dialogue for the parties
-Justice does not mean end of the conflict/violence
-Fairness
-Costly for poor party of the conflict
-It can prolong to establish peace
What do you think will be the concerns of the other side for each of the options?
HR practitioner about Mediation
-Soft to make public changes
-Justice may not be achieved
-May not be impartial
CR about Mediation:
-Conflict will continue
-May not be impartial
-Unsustainable peace
What would be some basic rules to apply in negotiations between HR and CR practitioners, in other conflicts, too?
-Both sides should understand the each other work and try to collaborate.
What are your major concerns for each of the options?
Concerns for Courts Option as a Human Rights Practitioner may Include:
·There is a great concern that justice may not be achieved
·The other major concern is that Remedy may be unpredictable.
·Politics and political influence have a direct effect on human rights and have a negative impact on court.
·Harmful to victim, long and drawn out
·Retaliation by violator's supporters
·Technicalities of the process that could lead to injustice
·Too long, Slow and costly process
·One party wins and the other looses
·The courts traditionally do not focus on relationships.
Concerns for the Mediation Option as a Human Rights Practitioner may Include:
·Justice through mediation may be not achieved.
·The wider public opinion/forum and interest may not be considered and addressed.
·Human rights may not be addressed; Deals over human rights
·There is a power imbalance
·May not bring about "justice” (punishment won't be imposed)
·Don't want to collaborate with persons who have caused such harm
·Mediator may not be impartial, reasonable or fair
·Lack of publicity of serious harms
·Might be safety concerns /retaliation concerns
Concerns for Courts Option as a Conflict Mediator may Include:
·Legalities risking real mutual agreement
·Justice achieved but conflict may continue
·Peace may not be achieved
·Parties might not be satisfied with the result
·Costly and harmful to relive
·Might not end the larger conflict to prosecute an individual through courts
·Lack of collaboration and mutual cooperation to come to a resolution
·Win-lose situation
Concerns for the Mediation Option as a Conflict Mediator may Include:
·Lack of trust by parties
·Continued conflict
·Unsustainable peace
·Lack of participation by parties
·Lack of willingness
·Political and/or cultural persuasions
·Parties give up or retaliate
What do you think will be the concerns of the other side for each of the options?
The human rights activist
·may not want the perpetrators of the violations at the table
·may see ADR as 'soft' and not dealing with the issues
·may feel that justice will not happen
·Mediation may not be a public enough forum for the human rights activists
·Not all parties may feel safe participating.
Concerns for Courts Option by the Other Side
·Costly
·Justice may not be achieved
·May not be heard
·Political influence may create an unfair advantage
·Concerns for the Mediation Option by the Other Side
·Power imbalance
·Retaliation
·Lack of participation by parties
·Lack of willingness to participate
·Partiality of the facilitator (HR or CR)
What would be some basic rules to apply in negotiations between HR and CR practitioners, in other conflicts, too?
·Basic Rules may include:
·Knowledgeable of the issues
·Impartiality and neutral
·Fairness and reasonable
·Manage emotions, risks and facilitate discussions
·Allow each side to fully tell their story
·CR and HR practitioners should not fall in love with their own solution
·Understanding of human rights (if it relates to human rights)
·Knowledgeable of the culture and sensitivity
·Build insights to allow others to understand each other's' perspectives
·Knowledge of the conflict and underlying issues and causes
You are a human rights practitioner; You are a conflict mediator. You are having a negotiation about how to address human rights violations: through courts or through mediation. What are your major concerns for each of the options? What do you think will be the concerns of the other side for each of the options?
What would be some basic rules to apply in negotiations between HR and CR practitioners, in other conflicts, too?
No matter if I´m a mediator or one of the parts of the negotiation, and even it doesn´t matter if it is through courts or mediation, something that really worries me is the parts legitimacy to make decisions and compromise or even assume some responsibilities, if that legitimacy isn´t real or strong enough all the agreements and the resolutions done, are not going to be put in practice and problem will continue. And I think this is a concern that is always going to be present in all the related parts, because the power to make a decision or to put in practice a legal resolution, depends mainly on legitimacy, and time and resources are being invested on the way to resolve the problem.
I think that all, HR and CR practitioners should focus on getting the best result for all, no matter if the other part or if both parts are focusing in human rights or not, while the problem exists or worst while it grows, anything could be achieved, and negotiation would be just a waste of money and time.
You are a human rights practitioner; You are a
conflict mediator. You are having a negotiation about how to address human
rights violations: through courts or through mediation. What are your major
concerns for each of the options? What do you think will be the concerns of the
other side for each of the options?
HR practitioners' concerns about courts
-Selection of court (where and which court be the most appropriate?)
-Power imbalances in cases involving the state (political influence)
-No confidence of ruling in favor of victims
-Time and cost ineffective
Conflict mediators' concerns about courts
-Conflict or violation may continue even after justice achieved
-Lack of chance to understand each other
-Both parties might not satisfied with ruling (lose-lose situation)
-Time and cost ineffective
HR practitioners' concerns about mediation
-Possible to negotiate with perpetrators?
-Selection of mediator (Is he/she reliable? - fairness)
-Negotiation circumstance (will victims not be intimidated or offended facing violators?)
-Justice may not be achieved (imposing impunity)
-Can the result be trusted to be kept by violators? (Isn't court ruling more reliable?)
Conflict mediators' concerns about mediation
-Not easy to bring both parties to the negotiation table
-Inefficient for sustainable peace
-Maintaining to be impartial
-Making consistent dialogue with HR practitioner (Controlling HR reports not to harm the negotiation)
-Pressure on leading progress for both parties (Otherwise, it would affect negatively to the legitimacy of ADR)
What would be some basic rules to apply in negotiations between HR and CR practitioners, in other conflicts, too?
-Consistent dialogue between HR and CR practitioners for not to harm each other's practice methods (HR practitioners try not to make a negative impact on peace process, CR practitioners' duty to update its process to HR practitioners and to inform them when and how they want HR practitioners' interventions when it comes to mediation)
-Collaborated assessment defining characters of conflict in order for which approach would be effective to apply
-Collecting exact information and knowledge of conflicts
-Understanding cultural backgrounds of conflict
-Respect each others' perspectives in any circumstance