MEDIATING NATURAL RESOURCE CONFLICTS:

USEFUL TOOLS AND CONCEPTS

MICHAEL BROWNSENIOR MEDIATION EXPERTSTANDBY MEDIATION TEAM

UN DEPARTMENT OF POLITICAL AFFAIRS

OVERVIEW OF THE PRESENTATION

1.Introduction to some mediation basics

2.Asessment phase – tools and concepts

3.Pre-negotiation preparedness phase – tools and concepts

4.Negotiation phase – tools and concepts

5.Implementation phase – tools and concepts

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A working UN definition(United Nations Guidance for Effective Mediation, page 4)

“Mediation is a processwhereby a third party assists two or more parties,with their consent,to prevent, manage or resolve a conflictby helping them to developmutually acceptable agreements”

1. INTRODUCTION TO SOME MEDIATION BASICS

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FOUR BASIC POINTS ABOUT MEDIATING INTEREST-BASED NEGOTIATIONS

1.Separate the people from the problem

2.Concentrate on interests and not positions

3.Develop options that benefit both sides

4.Insist on using some objective criteria for evaluation the options

MEDIATION FUNDAMENTALS ACCORDING TO THE UN “GUIDANCE FOR EFFECTIVE MEDIATORS”:

PreparednessConsentImpartialityInclusivityNational OwnershipInternational Law and Normative FrameworksCoherence, Coordination and Complementarity of the Mediation EffortQuality of Peace Agreements

MEDIATION IS A PROCESS

The rest of this presentation is organized around these four phases of a mediation process.

Understand the natural resource and the conflict context:Understand the resources in dispute (type, quantity, quality and nature)What are the political-economy linkages?How do resources relate to ownership, production, wealth distribution and power relationsSituate the resource conflict into the broader political context:

Is the resource conflict linked to a broader political conflict/context?

Do resource revenues finance political or military actors? Does resource access drive any kind of division (ethnic, religious,

etc.)? How do resource issues interact between different levels of

conflict?

Do a conflict analysis

2. ASSESSMENT PHASE - TOOLS AND CONCEPTS

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Understand stakeholders, capacities, interests and positions:Stakeholder mapping is essentialConsider positions and interests of key stakeholders regarding natural resourcesEvaluate stakeholders’ capacity to engage in mediationAssess each stakeholders’ access to information about natural resourcesGender considerations are part of this

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Understand the governance framework for natural resources:What is the NR governance framework (legal and policy dimensions, dispute resolution mechanisms, etc.)?Identify NR dispute resolution frameworks (statutory and customary legal frameworks – binding? legitimate?)Think about specific provisions regarding:

Benefit sharing Public participation in decision-making Access to information Access to justice and dispute resolution Environmental impact assessment related to NR issues

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Provide negotiation training and orientation:Very common to do in resource disputesTraining is common regarding:

Interest-based negotiation Technical issues/skills regarding the resource

Can also help build mutual understanding and trustConsider additional or specialized training for weaker parties

3. PRE-NEGOTIATION PREPAREDNESS - TOOLS AND

CONCEPTS

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Seek agreement on process design:Agreement on process to design mediation can build initial trust and successProcess design issues can include:

Designation of mediator, mediation teams or mediator role

Choice of venue Composition of negotiation teams

Strong agreement on process design usually translates into greater commitment to mediation process

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Seek agreement on the scope of the negotiation:Can agree early on the issues for the negotiationCommon natural resource issues to negotiate include:

Management authority Wealth sharing Land ownership Resource rights Population displacement Access to justice Illegal exploitation and compensation for damage or lost access

Some issues may not feasible to resolve through negotiation, so a mediator may prefer to not address them

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Focus on the technical aspects:Common tactic is to direct talks toward technical issues and away from sensitive political, cultural or ideological mattersParticularly common to focus on how to maximize benefits of a resource for all stakeholders

4. NEGOTIATIONS - TOOLS AND CONCEPTS

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Delink resource ownership from resource use and management:Ownership of natural resources is typically a delicate and complex issue and may be linked to issues of identify, history and cultureSeparating issues of ownership from issues of management or revenue distribution can be usefulSometimes, can remove ownership question from the negotiation (if too sensitive or complex to resolve)

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Joint information gathering:Resource disputes often involve technical informationDisagreements about this can be part of problemJoint information mechanisms can improve transparency and confidenceCan have agreements on matters such as:

The kind of mechanisms to generate or collect information The terms of reference required The selection of technical experts The review process to validate the information

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Impartial technical expertise:Technical experts can help ensure reliable and valid data is provided on a fair basis to all partiesExperts must be seen as impartialCan help overcome impasses when parties have different information or inaccurate interpretations/conclusions

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Provide clear implementation guidance on key issues:Agreement should provide clear guidance for implementation on:

The timetable for implementation Stakeholder obligations

Other important matters requiring clear implementation guidance include:

Monitoring and reporting process Governance mechanism for implementation Amendment mechanism Dispute resolution clause

5. IMPLEMENTATION - TOOLS AND CONCEPTS

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Sustainability and dispute resolution during implementation:Sustainability of an agreement is influence by:

Buy-in of the parties Extent to which root causes of conflict are addresssed Agreement’s resilience (ability to withstand stresses of implementation)

Dispute resolution processes are important because grievances arise during implementation

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