Much has been written about the collapse of Israeli-Palestinian negotiations, which officially expired yesterday. As I wrote in the context of both the Israeli-Palestinian negotiations and in the context of mediations in Syria, the readiness of the parties to reach a mutually acceptable solution is the most important factor dictating the success of a mediation, and in this instance, either one or both of the parties is not ready to negotiate. Yet mediators, not just parties, can also trigger a blowup of the mediation without intending to.
Mediation is a process that usually proceeds cautiously and carefully. Parties that are mired deep in conflict, with intense mistrust for one another, make incremental and carefully calibrated concessions and gestures towards one another in pursuit of an agreement. Each side is watching the other, looking to see if goodwill is being reciprocated, and if the other side is sincere in its desire to make a deal.
Given this reality, the mediator has a vital role to play – that of conduit of information. Frequently, parties will disclose information to the mediator in a private session (i.e. without their counterparty present) and it is up to the mediator to share that information with the other side in a manner that supports the process, bringing the parties closer to an agreement.
All the while, the mediator must take care that the messages she transmits between the parties are accurate. Sharing inaccurate information is not only unhelpful, it can be downright harmful, particularly when the inaccuracy relates to what either party has or has not agreed to. Why? In the dance of mediation, each party is monitoring the other side, looking to see what concessions are offered. Backing off from a concession already made constitutes a serious breach of trust that can end the process almost instantaneously.
Reports suggest that this dynamic contributed to the failure of the recent Israeli-Palestinian mediation. Both the New York Times and the Times of Israel report that John Kerry had signaled to the Palestinian delegation that they would be able to include Arab-Israeli citizens in the list of prisoners to be released in a fourth round of such releases. The Palestinians relied on this, and considered it to be a concession that Israel had agreed to in the course of negotiations. The Israelis, however, claimed that they never made such a concession at all, and indicated that this premise came from the mediator.
If a disagreement over the inclusion of Arab-Israeli citizens in the list of released prisoners had been tackled head on, with each side’s position made clear, it is possible that some compromise or creative solution could have been found; the reported proposal of the United States to release Jonathan Pollard is one example of that. Perhaps not. But in this case, the discussion of this issue only occurred after each side felt misled and mistreated by the other. The sudden discovery of this gap in perceptions created strongly negative momentum in the mediation, above and beyond the importance of the substantive issue itself.
Many years ago I mediated a civil dispute over $40,000. After a joint session with both parties, I met with each party separately, giving them an opportunity to discuss more openly possible agreements. Given that the amount of damages was a major point of contention, I set out to determine each side’s flexibility on that issue.
The defendant indicated privately that he would be willing to go as high as $30,000. The plaintiff, meanwhile, indicated that he would go as low as $25,000. While I did not reveal these numbers to either side, I did signal to each that the parties were actually quite close, and that I thought an agreement on damages could be reached.
We continued to mediate, discussing a number of other topics and making progress on each. However, when it finally came time to discuss the damages issue jointly, the mediation blew up. It turned out that the defendant had never intended to pay more than $15,000, not $30,000, as I thought he told me. It is to this day unclear whether I had misunderstood him, whether he had changed his mind, or some combination of the two. The defendant made a settlement offer in line with his “bottom line”, which he thought was close to acceptable to the plaintiff; he was shocked and offended by the plaintiff’s indignant reaction. The plaintiff, on the other hand, having continued mediating on the assumption that he would get a payment somewhere in the range of his bottom line, became extremely frustrated, and declared that there was no point in continuing. Ultimately the mediation ended without an agreement, and the parties returned to litigation.
I reflected on that failed mediation, and I have wondered to myself if these parties might have been amenable to compromise if things had been handled differently. That is, if the defendant had offered a $15,000 settlement, and the plaintiff had been free of inflated expectations, would his reaction have been to walk away, or to counteroffer? And in the continuing dance of counteroffers, could these parties have reached some agreement? Or were they simply too far apart, and the mediation would have ended regardless? It is impossible to know. Litigation is expensive and time-consuming, and a $15,000 gap is not that great, considering those costs in time and money.
What is the lesson in this story? Resolving disputes, whether civil or political, is also an emotional process, in which pure rational decision-making is the exception rather than the rule. The emotional shock of having one’s expectations violated certainly makes compromise much harder to achieve. Mediators need to share information as they attempt to midwife an agreement through this process. Nevertheless, there is risk in doing so, and inaccuracies must be avoided. Misinformation is much worse than no information; both parties ultimately feel aggrieved, trust is further eroded, and if a mediation is on shaky ground to begin with, this can be the “last straw” that ends the process.