EVOLVING EFFECTIVE STRATEGIES FOR CONFLICT
MEDIATION, MANAGEMENT AND RESOLUTION
Anyim Pius Anvim, GCON
Former President of the Senate
Federal Republic of Nigeria
(PAPER DELIVERED AT AREWA TRADITIONAL AND RELIGIOUS LEADERS
HELD APRIL 27 – 30, 2009 AT THE BANQUET HALL AREA HOUSE, RABAH
Conflict is a universal phenomenon and an everyday occurrence. Because of differences amongst people, there are bound to be disagreements and sometimes open conflict in human interactions. Conflicts should not be regarded as inherently ‘good’ or “bad’.
Rather, what is important is the ability of leaders and conflict resolution practitioners to manage differences when they arise and tap on their potentials to lead a more harmonious and smooth-working relationship between parties in conflict. To achieve this goal, those who regularly get involved in conflict management and resolution must be able to conduct a proper diagnosis of the conflict before deciding on the appropriate mechanism for dealing with the disagreement.
This is especially so where the parties have interdependent relationship which gives rise to the need to focus more on the processes that would not only enable them resolve a present conflict, but also help them in building a stronger relationship in the future. Since the return to civil democratic rule in Nigeria, conflict and coexistence have become a recurrent issue in the nation’s body polity.
There is no doubt that this problem is a product of years of neglect complicated by the level of corruption and indiscipline in our national life. My mandate in this paper is to explore how conflicts can effectively be managed by using traditional processes, techniques and mechanisms for dispute resolution.
2. BENEFITS OF EFFCTIVE TRADITIONAL CONFLICT
Active involvement of traditional leaders in conflict mediation and resolution is not only necessary but desirable in view of the numerous benefits to the nation. Institutionalised traditional conflict management and resolution system will be beneficial in the following Ways:
(a). Build (or rebuild) public trust in traditional rulers and the traditional institution.
(b). Contribute to reduction of social conflicts and violence.
(c). Create a clearly defined and legally recognised role for traditional rulers.
(d). Promote security, peace, rule of law and sound democratic culture.
(e). Help in attainment of the 7-Point Agenda of the Federal Government.
3. DIAGNOSING CONFLICT
To properly understand a conflict, three fundamental questions may be used as a guide:
1. What is the nature of the difference between the parties? People may disagree on any of the following:
2. What factors may underlie the difference between the parties?
When people have a disagreement it is usually not enough to know just what the difference is about, it is equally important to ascertain why the difference exists. In trying to know why the dispute exists it is necessary to consider some of the underlying factors that could lead to disagreement between people. The factors include:
-Differences in experience or orientation
-Differences in information
-Differences in circumstance – roles / jobs
3. How long has the dispute existed or at what stage of the development is the disagreement between the parties?
4. MANAGING/RESOLVING CONFLICTS – MEDIATION
There are several options available to parties in a conflict situation. They may take unilateral action by way of self-help. Any of them may seek legal remedy in court. Alternatively, all parties concerned may work together and search for a solution to their problem. Because unilateral actions are usually either legally proscribed or result in unsatisfactory outcomes, third party intervention and assistance seem to offer more acceptable options for conflict resolution. This intervention may be in the form of mediation by traditional / religious leaders. As a process, mediation is known to provide better opportunity for parties to a conflict to dialogue and transform conflict situation towards a more positive outcome in their relationship. Some of the key features of mediation include:
• Future Focused
• High Party Involvement/Participation
. Largely Interest Based
Most times, it is difficult for parties involved in a conflict to negotiate constructively in their direct attempt at the resolution of their conflicts. In a good number of cases, their emotional attachments to their positions in the matter prevent the parties from jointly searching for a common ground for the settlement of their dispute. Mediation usually helps to overcome this problem.
Mediation is an informal method of conflict resolution where a neutral third party called the mediator, assist the parties in finding a resolution to their problem through the mediation process. Mediation is about the simplest and most widely used form of conflict resolution process globally.
The process works best when the parties are both seeking resolution in their conflict (or potential conflict) and have no hidden agenda. Mediation is basically a continuation of negotiation between the disputing parties, albeit with the introduction of third party neutral- the mediator. Accordingly, the major task of parties in mediation is usually not to convince the mediator about the merit of their case, as against that of the opponent, but, to persuade the opposing party to reach an agreement.
In mediation, the outcome is not binding except the parties agree. Traditional rulers / religious leaders are in positions that make then natural institutions for conflict mediation / resolution. Nigerian courts have consistently recognised the validity of customary mediation / arbitration. The Supreme court in the case of OHIAERI vs. AKABUEZE (1992) 2 NWLR (Pt. 221 ) 23., held that customary arbitration (which includes mediation) will be accepted and considered binding if certain conditions are satisfied.
The conditions include:
(a). That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons.
(b). That it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding.
(c). That the said arbitration was in accordance with the custom of the parties or of their trade or business
(d). That the arbitrators reached a decision and published their award.
(e). That the decision or award was accepted at the time it was made.
Apart from direct interpersonal conflicts, the traditional institution is a necessary structure for the effective management and resolution of most religious, ethnic and communal conflicts that continually threaten our corporate existence as a nation. With adequate training and capacity building in conflict management and resolution skills traditional rulers can effectively play their natural roles as mediators and conciliators in times of crises.
5. WHY MEDIATION WORKS WHEN NEGOTIATION FAILS.
As stated earlier mediation is basically a continuation of negotiation. In mediation, the mediator can assist the parties to explore realistic options for settlement and can recommend a negotiation strategy designed to achieve settlement that meets the parties’ needs. In the hands of a skilled and experienced mediator, settlements can be achieved over 80% of the time, even if prior negotiations have been a total failure. Some of the reasons why mediation may work where prior negotiations failed include:
1. Effective negotiations may never have really occurred in the first place. Effective negotiations require that people issues be separated from the problem. This may be difficult to achieve in most cases where the parties negotiate directly. In direct negotiations, parties may become emotionally affected, thus making the negotiation characterized by hard bargaining, unrealistic proposals and other tactics which only emphasize the differences between the parties. As a result the parties become more defensive and entrenched in their positions, and refuse to make concessions. But, when communications are skill fully directed by the mediator, the focus of the negotiations will gradually shift from emotional issues to a constructive resolution of the real issues at hand.
2. During mediation, the parties have the opportunity to hear directly from the other side and in turn, are given the opportunity to educate and influence them. As a result, a mediation session provides each side with more realistic view of opponent’s position, thus allowing for the consideration of settlement proposals that otherwise would have been rejected.
3. Mediation allows each side to “test market” a settlement proposal by privately conveying the proposal to the mediator. During the course of mediation, the mediator will often meet privately with the parties to confidentially discuss settlement proposal.
4. Mediation offers each party a realistic look at their case. As the parties become clear on what they can realistically expect to achieve if they do not settle, their positions on settlement often become more reasonable and flexible.
5. Mediation assists the parties better in developing options for settlement. The more options that are developed, the greater the chances of an agreement. It is usually the mediator’s job to help the parties identify and expand the menu of options so that less obvious solutions and alternatives can be explored.
6. ROLE OF A MEDIATOR.
A mediator is employed by the disputing parties not to judge the rights and wrong of their dispute but to act as a catalyst for better communication and problem solving. The mediator is a person who has been permitted by parties to intervene in the dispute arena solely for the purpose of assisting and empowering them to achieve their own lasting settlement.
The distinction must always be preserved between role of the mediator, who is the person in control of the mediation process, and the role of the parties, who are the persons in control of the content and outcome of the mediation. It follows from this fundamental division of roles that the key role of the mediator is always that of the neutral and impartial facilitator.
As with any other human activity, certain personality types are better suited to being mediators than others. It is not difficult to surmise about some of the desirable natural qualities for becoming a successful mediator;
• To have a quick mind capable of picking up on clues about the real dynamics between disputants and for teasing out hidden agendas;
• To possess some intuition. Many successful mediators claim to rely on their *gut feeling’ in directing the critical stages of mediation;
• Being possessed of much patience and a real interest in the problems of others:
• Having genuine humility- a mediator must know when to be self-effacing and quietly draw back from the centre stage.
7. WHEN MEDIATION FAILS.
Sometimes mediation fails in the sense that the parties are unable to reach a settlement through the process. But, when viewed as a process which basically aims at facilitating communication between the disputing parties, mediation should not necessarily be seen as having failed merely because the parties could not reach a settlement.
This is so because theoretically there are many mediations in which settlement might not even be appropriate for any of a number of reasons, such as; lack of sufficient information to make wise decision at the time; a differing understanding of the applicable law which only a judge can appropriately decide; or the offers being presented at the time are simply not mutually acceptable.
When settlement is not reached in mediation, a number of options remain. The options include, mediation at a later date, with more information available; mediation with a different mediator, with whom the parties may feel a stronger rapport or have a “fresh start” and/ or mediation with attorneys or other expert advisers present. Other options include: continued negotiations (perhaps through attorneys); arbitration; or litigation.
Before the advent of colonialism in Africa, the various communities had well established institutions and mechanisms for conflict resolution and management. African traditional justice systems were essentially designed to promote stability and cohesion in the society as well as the maintenance of order and social equilibrium. Over time the influence of western culture and practices seem to have overshadowed the relevance of traditional conflict resolution mechanisms.
Increasingly, all stakeholders in peace building and conflict resolution are realising the important role of traditional rulers and religious leaders in conflict mediation, management and resolution. In evolving effective strategies for conflict mediation, management and resolution, particularly with reference to the role of traditional / religious leaders, there is the need for a well coordinated and sustainable programme of capacity building for the leaders. It is important that conscious effort is made to effectively harmonise the role of traditional rulers in conflict management and resolution. This is where I must commend the efforts of the organisers of this retreat for creating this forum for all stakeholders to brainstorm and fashion out ideas that will help strengthen the traditional institution in Nigeria.