Refugee policy- negotiations

MEDIATION OF THE CURRENT DISPUTE OVER REFUGEE POLICY

The Hon Neil Brown QC


The failure of negotiations between the government and the opposition on refugee policy should come as no surprise.

When negotiations on commercial and personal disputes take place without a trained mediator, the failure rate is very high. This must especially be so where the dispute is infected with the hot passion of political argument and bias and the desire to win at all costs.

But when negotiations on commercial and personal disputes are under the supervision of a trained mediator, the success rate has been shown, over and over again, to be much higher. There is no reason why the same success could not be achieved in the mediation of political disputes.

The reasons why negotiations without a mediator typically fail should not come as much of a surprise. First, the parties come to the table with pre-conceived notions and there is nothing in the talks to encourage them to let go and look at the dispute from a fresh perspective. Secondly, the only solution to the dispute that the parties can see is their own brilliant suggestion, no matter how much they say they are open to a settlement. From that entrenched position the negotiations become less of a genuine desire to solve the problem and more of an effort to intimidate the other side and show how stupid they are for not seeing the wisdom of the suggestions being put to them. This is more so when, as in the present case, the protagonists issue press releases showing how perceptive their own side is and how narrow minded and recalcitrant is their opposition. Thirdly, the absence of a mediator enables each side to wriggle away from keeping the negotiations going and provides endless scope for giving excuses for not reaching agreement, usually that the other side is so bloody-minded and prejudiced.

What is less understood is the great change that can be brought about when a skilled mediator is in charge. First, the mediator , if independent, has no preconceived ideas and that position permeates and colours the whole proceeding, making it more likely, although not of course certain, that a resolution will be reached. Secondly, a good mediator will bring out solutions that the parties have never thought of, because the mediator has not been involved in the trench warfare and point scoring that has permeated the history of a dispute. The mediator has an open mind and it is the open mind that generates the new idea and the lateral thinking that so often leads to solving the dispute. Thirdly, with a good mediator, there is a new element hovering over the negotiations, namely a genuine desire to get the dispute resolved, rather than the genuine desire of the parties to crucify the opposition. After all, the mediator knows that his or her reputation will be enhanced by achieving a settlement that results in each side signing on the dotted line.

Above all, a trained mediator knows that what the dispute is really about is often not the nitty gritty issues that the parties think and say the dispute is about. There are almost always other issues that have prevented a settlement and they are often the most potent of factors that are stopping a settlement from being reached. For example, I had an apparently intractable dispute a few years ago where the parties were tearing each others throats out over some very dry issues of money and land and it seemed to me that people could not possibly hate each other so much if that was all that was motivating them. I elicited during the mediation that there had been sustained personal friction between them on emotional and, indeed, sexual issues and the land and money had become merely proxy soldiers for the real but unspoken antagonism between them. Knowing that, my approach to the mediation changed and I was able to suggest different solutions that solved the dispute, as much to my own surprise as that of the parties.

There is no reason why talks on political issues, with a mediator, should not be met with the same success that mediators can and do produce every day of the week, domestically and internationally, in commercial and personal disputes. But it will only work if the above principles are understood and applied. The deep and unspoken antagonism between political opponents makes it virtually impossible for disputes between them to be resolved without a skilled outsider to hold the ring, keep the parties from veering into irrelevancy, encourage them to concentrate on the real issues in dispute and stop them from grandstanding and point scoring.

Finally, there is another ingredient that should and can be added; the impartiality of the mediator. History shows that the parties must have confidence in the mediator and in particular the mediator’s apparent and real impartiality. It might be thought, therefore, that it would be impossible to find someone to mediate on a political dispute who is, like Caesar’s wife, above reproach. But, in fact, this may be a real strength because recent developments in advanced and complex mediations show that there is a real advantage in having two mediators who sit and work together, bounce ideas off each other, road testing possible solutions and bringing to bear a political background and context to dispute resolution.

Indeed, two mediators in a political dispute should give the protagonists confidence that the presence of the mediator they nominate ensures that they will get a fair go.

The refugee issue is now so alarming in so many ways that there is an obligation on all of us to help by offering our own skills in the hope that they may produce a solution, no matter how optimistic that hope may be. I am prepared to act as a mediator, fee declined and I can think of a dozen others from a different political background whose skills could also be used in tandem with my own modest efforts, to solve this toxic political dispute. Those concerned should remember that all disputes are capable of solution, with the right mechanism and the right will. At least, let us try.

Neil Brown QC is a former minister in the Fraser government who practices in mediation and arbitration.