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CIAO DATE: 12/99
Developing Peace: The South African Experience Of The Role Of Civil Society In Facilitation And Mediation
Phase 1: The Art of Mediation Workshop
June 3, 1997
1. Introduction: not prescriptive, sharing experience and information
South Africans strongly resent “outsiders” who visit our country, become experts on our problems within 3 days and come up with solutions, however well meant. I will, therefore, be very sensitive to this and will rather share my experience of the South African situation and how it could possibly be applied by you to your situation.
The Northern Irish situation is in many ways more complex than the South African one was. It has, for example, a longer history and, consequently, a longer and stronger collective memory. It also has both nationalist and religious undertones to contend with, as well as a “third party”(the British government)
It is, therefore, important to map out the South African experience carefully, so that its lessons can be used by the players here to move forward.
2. Types of engagement: shuttle diplomacy, facilitation, mediation, arbitration
As this seminar carries the title “The Art of Mediation” it is fitting to start with a few remarks in this regard. There are different types of engagement by civil society within the political sphere which are related to mediation. Four are relevant here, ranging from less direct involvement to more direct involvement.
In its most indirect form, civil society structures or individuals, given the right credibility, can perform a shuttle diplomacy role between political adversaries who are not willing to engage each other personally (yet). This can take the form of delivering (often confidential) messages and takes place in the pre-negotiation phase or during negotiations when a deadlock has occurred.
A more direct involvement is facilitation, which can be formal or informal. In its most effective form it is informal, whereby individuals act as facilitators of the pre-negotiating process, perhaps by acting as convenors or chairpersons of meetings between the two adversaries. In this case, the facilitator need not be appointed by the parties, but must be acceptable to both sides. In a more formal form, an individual might be formally appointed/agreed upon by both parties and given a specific facilitatory task.
Mediation is a form of direct involvement in which the negotiating parties or adversaries disagree or are deadlocked and appoint/agree on an outsider to help them reach agreement on a specific issue or a range of issues. It is difficult, indeed, almost impossible, to be a self-appointed mediator, because, even if the parties have decided to look for agreement they will generally not be open to an outsider helping them to reach that agreement.
A last form of direct involvement is arbitration, where the parties agree that they themselves cannot reach agreement (even after having used a mediator) and appoint an outsider (often an international figure or figures) to make a judgement on who is right/wrong or which route to take to restart negotiations. This is a rare phenomenon in political negotiations because politicians are often loath to “lose control” and quite understandably so.
It is important for members of civil society to understand these different options and to choose the correct one in a given situation. If not, their efforts will not serve to enhance the process but rather to undermine it.
3. The role and responsibility of civil society to engage the public sector
It is important to realise that in today’s world, civil society has no alternative but to engage the public sector on public issues. This is true of business, the churches and community based organisations. The reasons should be obvious, but often are not. Unless civil society helps to shape its environment (of which the public sphere is an important element), it will be rendered ineffective and ultimately obsolete, with devastating results for society in general.
The levels at which civil society becomes involved in the peace process is also important. In a few rare cases (of which South Africa is one) it is possible to become involved at a macro level until the political players start to negotiate formally and seriously. Their role is then finished unless a deadlock in negotiations necessitates renewed involvement.
More often, and very importantly, civil society becomes involved at a micro level. This creates the environment for the macro negotiations to carry on and succeed, because it is almost always the events at the micro level that bedevil the macro process. In South Africa, the macro peace process preceded the micro process. This resulted in the political parties struggling to adhere to the peace accord at a local level through their local structures. It took several months and many lost lives to build the right processes and multi-party structures at the local level.
4. How civil society became involved in the South African process
There are many examples of how civil society (business, churches, community groups and non-governmental organisations) became involved in the peace process in South Africa. But first, it had to understand its role and the limitations.
Shuttle diplomacy
The business community, given their obvious concern with a macro environment in which it is possible to conduct business, put out feelers to both the NP Government and the ANC in the eighties. This resulted in several meetings at home and abroad, in which informal messages were carried to and fro. It also went hand in hand with the formation of a facilitating organisation, the Consultative Business Movement (CBM), to do the groundwork in this regard.
Later, after the ‘unbanning’ of the ANC and other organisations, commercial and labour sectors and the churches, acted as shuttle diplomats between the NP and the ANC, resulting in the establishment of the formal peace process in May 1991 (which consisted of pre-constitutional negotiations).
During the official negotiations, representatives of the business community again acted as a shuttle diplomat in the periods in which deadlocks occurred. Their most important achievement was the bringing into the election of the Inkatha Freedom Party (IFP) on the eve of the 1994 election.
Facilitation—informal and formal
In the whole process of negotiating both the peace and constitutional reform, there was only one instance where actors from civil society were formally appointed at a macro level. This happened in May 1991, when the political parties agreed to the formation of a Facilitation Committee, consisting of politicians, business leaders, church leaders and labour leaders. By mutual consensus, archbishop Desmond Tutu and business leader John Hall co-chaired this committee for several months. After the signing of the National Peace Accord in September 1991, John Hall carried on chairing the National Peace Committee, but it consisted only of political parties. A lawyer, Antonie Gildenhuys, was made available to chair the National Peace Secretariat, which was responsible for the establishment of local multi-party peace structures. These structures ceased to exist soon after the democratic elections of 1994.
But for the most part, facilitation by civil society in the macro negotiating process in South Africa does not exist. Although the CBM was appointed as administrators of the Multi-Party Negotiating Process by the political parties, theirs was not formally a facilitating role. Where the CBM did facilitate and acted as shuttle diplomats, it was usually outside the formal process.
Mediation
Examples of mediation by civil society in the macro negotiating process in South Africa do not exis either. The IFP almost convinced the ANC to being in international mediators to deal with several deadlocked issues, but were not ultimately successful, and Henry Kissinger and his team had to return without getting down to work. This was a good example of the willingness of politicians to place control of (at least part) of the process in the hands of outsiders.
Civil society did play a role at the micro level in the peace process, where local disputes between especially the ANC and IFP were mediated by the local peace organisations—which often included members of civil society. she services of a non profit organisation, the Independent Mediation Services of South Africa (IMSSA) were also often sought at local level. After the 1994 election, a state-funded mediation body was formalised for disputes between business and labour.
Arbitration
In the South African experience, there are no examples of arbitration engagement by civil society.
5. The principles used for successful negotiations 1
Principled negotiation, not positional bargaining
The bottom line for the successful outcome of these processes is to principled negotiation, not positional bargaining. This means adhering to seven principles:
Time does not allow a more detailed approach of these principles. The two books referred to in the footnote give adequate direction in this regard. Suffice it to say that understanding these principles is necessary for any person from civil society wanting to engage in political or peace processes.
Building constructive relationships
It is important to point out the importance of working relationships between negotiators, but also between shuttle diplomats, facilitators and mediators on the one hand and parties on the other. It is important to build a relationship that can deal well with differences—this does not mean approval, avoiding disagreement, sharing values. It does mean to disentangle relationship issues from substantive ones and to be unconditionally constructive.
The basic elements of a working relationship can be summed up as follows:
Members of civil society cannot build these relationships directly between politicians, but can create the circumstances which will make that possible. They can also, at times when parties refuse to talk to one another (let alone negotiate), build trust by being a trustworthy intermediary/facilitator. Although written for negotiators, all these principles can and must be applied by and to facilitators.
6. The South African practice
Awareness of the importance of “process issues ” The South African negotiators, almost “forced” together by external issues, decided at an early stage that they should build a common South African-ness, based on patriotism. This was an important element in keeping the negotiating process on track, even under difficult circumstances.
The negotiators, having successfully negotiated and signed a National Peace Accord in September 1991, made several mistakes in the first round of constitutional negotiations (CODESA). This was especially true of the negotiating structures, but was corrected when the second and final round began in March 1993 with the MultiParty Negotiating Process (MPNP).
The new approach also made provision for deadlock-breaking mechanisms, and a negotiating process that was as informal and flexible as possible. The MPNP was, in addition inclusive (until some parties withdrew unilaterally) and transparent (the media and even the public was allowed to attend).
The MPNP was managed through a “process alliance” by the ANC and the NP, built on their political will to succeed and the personal relationships and trust that had been built between individuals in these two parties and other participants. Finally, the parties were aware of the importance of managing well their constituencies and the pressures from below .
The importance of organisational maturity In the successful South African negotiating process, the participants (with a few exceptions) showed increasing organisational maturity and confidence to negotiate. There was leadership at crucial times, champions within the parties and the necessary mandates. This resulted for the most part in trust by the followers.
The importance of “oiling the process wheels” The South African negotiating process was marked by several interventions and engagements by civil society which helped “oil the wheels of the process”. These included facilitators (early on in the process), a non-partisan, credible administration (from the business sector), technical advisers often used as deadlock breakers and a sensitivity to the views of the international community (although there was a strong resistance to active involvement from this side).
7. Lessons and principles applicable to the Northern Irish situation?
In conclusion, the following issues, based on the South African experience, are put forward in the hope that they might be applicable in the Northern Irish situation.
Endnotes
Note 1: These principles have been developed by the Harvard Negotiating Project in several publications, the best known of which are “Getting to Yes”(Fisher & Ury, 1981) and ‘Getting Together’ (Fisher & Brown, 1989). The work done by Roger Fisher and Bill Ury with the two biggest negotiating partners in the South African situation, the ANC and the National Party, has contributed significantly to the success of the process. These two books are strongly recommended for anyone who needs to understand negotiating and facilitating political processes. Back.
Note 2: Taken from ‘Getting Together; building a relationship that gets to yes’ (Fisher & Brown, Business Books, 1989). Back.
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