ADR… What, when, where, who, how and

most importantly WHY?!!

Léna Salamé

UNESCO

Division of Water Sciences

International Hydrological Programme

World Water Assessment Programme

Dispute? Conflict?

What? Since when?

Litigation NegotiationArbitration Mediation… ……

Alternative Dispute Resolution - Spectrum

Adjudication? Where? And how long!?

Gabcikovo NagymarosSlovakia v/s Hungary

Example of a water case & Adjudication:

Pulp Mills on the River Uruguay

Argentina v/s Uruguay

Negotiation? Who does this? Negotiation? Who does this?

Any situation in which two parties or more communicate for the purpose if influencing the other parties decisions.

Interests

BATNA

Options

Relationship

Standards

Communication

Agreement

Negotiation is a process that…Negotiation is a process that…

Satisfies our

Is better than our

Best of many

Builds a good working

Is based on fair

Based on efficient &effective

Results in a clear & operational

Creating Values: Examples

Enlarging the pie in negotiations

1973 Protocol: USA & Mexico over the Colorado

United States reduces salinity of water, ensures acceptable quality

In exchange…

Mexico combats immigration and drug traffic

Columbia River Treaty: USA and Canada

Canada stores water

Flood is controlled for USA

Hydro power is produced downstream by USA

Canada gets 50% of the benefits

Mediation?Mediation? Why do we need that? Why do we need that?

Mediation is a process that employs a neutral/impartial person or persons to facilitate negotiation between the parties to a dispute in an effort to reach a mutually accepted resolution. Mediation is a process close in its premises to negotiation: “mediation is an assisted and facilitated negotiation carried out by a third party”.

- Assisted negotiation

- Mediator designs the process

- Parties own the solution to which they feel

committed

Mediation - Examples

Indus River

Pakistan v/s India in 1947

Mediator: World Bank

Negotiation started over the allocation of water

Zambezi River

11 riparian states

Mediator/Facilitator: The Vatican

Consensus building? When does it happen?!Consensus building? When does it happen?!

“Consensus building” relates to a decision and agreement reached by all the identified parties who have a stake in the outcome and decision. Through this process, thestakeholders create new and more efficient options to resolve the issue at hand.

Consensus Building - Examples

- Brings together all stakeholders concerned

Unanimous agreement

- Voluntarily basis

- Creative and efficient

Reservoir in San Antonio Texas

1st proposal was not implemented

Objections of affected stakeholders

When meetings were open to all stakeholders: it was decided that no reservoir was needed. Policy to manage the old one was established

Sulha

Arvari Parliament

Tribunal de las Agua, Valencia

Traditional Conflict Resolution Traditional Conflict Resolution

Or Or

Water Management ApproachesWater Management Approaches

Sulha

• From musalaha, reconciliation: hostilities ended, honor re-established, and peace restored in the community.

• Two basic elements: rights and honor.• “Resolution of a conflict that involves no humiliation.” (Tarrahdhin)• Used in water disputes, by Bedouins in the Middle East and, Berbers in

Morocco. • “Both Berbers and Bedouins follow this Islamic practice of a ritual ceremony

of forgiveness. Once the ceremony is performed, the dispute may not be discussed – it is as if it never occurred” (Wolf, 2000)

Tribunal de las Agua, Valencia

The 1000 year old Tribunal de las Agua in Valencia, Spain is another old traditional institution for water management, which is still operational. It was established in 960, under the reign of the Calife of córdoba Abderramán III el Grande.

Every Thursday, in front of the Cathedral of Valence, the members of the Water Tribunal meet. The purpose of their meeting is to arbitrate during public sessions, conflicts related to the distribution of water coming from the eight canals that irrigate 1700 hectares where oranges, rice, grapes and peach are produced for the whole of Spain and for export. This ancient « institution » helps avoiding that conflicts between farmers degenerate.

It was inscribed in 2009 on the Cultural World Heritage List of UNESCO.

The “Arvari Parliament” or Arvari Sansad

It was established as an informal decision-making and conflict-resolution body by the people using the river of the small river Arvari in Rajasthan, reviving old Indian traditions (Iyer 2002).

Represents 72 villages, each of which sends two representatives. 142 members who nominated by their respective village institutions

Primary objective: to safeguard Integrated and Water Management efforts of the community of river catchment.

Follows Gandhian ethos of participatory, equitable and decentralized paradigm for water management (Jal Swaraj), where decisions are made at the grassroots not by centralized institutions.

Develop policies and enforces rules to govern the integrated management of interlinked natural resources like water, soils and the forest for the wellbeing of the villagers as well as other forms of life-flora and fauna.

Convenes twice a year to deliberate upon best strategies for resource conservation and management issues.

Altered from the Massachusetts District Court Mediation Project. 1986

Adjudication The rest of ADRsState names and redefines dispute; issues are narrowed Parties define dispute; issues emerge

Bound by law and precedent Solution tailored to situation

Formal rules of procedure and evidence; search for facts Process, which encourages informal exchange of information, feelings

Process may take into account cultural differences and psychological consideration

Process always takes good account of cultural differences and psychological consideration

Parties represented by attorneys Parties speak for themselves

Focus on past to place or deny blame Review of past in order to focus on future, avoids judgments

Judge or jury decide Parties shape settlement

Narrow range of remedies Broad range of remedies

Win/lose outcomes Potential win/win outcomes

Enforceable, but compliance varies Usually not enforceable, but compliance high

Can serve international community by: setting precedent, acting as a deterrent, punishing party found guilty, establishing norms

Can serve the international community interest by allowing parties to get at root causes of disputes which do not require, or respond well to, formal judicial process

Process often confuses or damages relationships Process often clarifies or mends relationships; educates parties

Process is usually costly, scheduled during work hours at convenience of system

Process is usually less expensive, schedule during time convenient to the parties

Process is often mysterious to parties, complex An attempt is made to make the process clear, simple

Process is often delayed Process is usually timely