This article was prepared by Rasim Gjoka, Merita Bala and Constantin-Adi Gavrilă, mediators and company-community facilitators.
The idea to write about this topic came up after a meeting of community and company members, discussing on finding solutions to sensitive issues -related to environment, safety, investment and employment.
After the interactive communication and dialogue, and sometimes debate, between the parties, by the end of the meeting one of the participants, who was a stakeholder but not a permanent member of the dialogue group, among others expressed interest to attend other meetings, particularly in the meeting when the parties will agree and vote on the solutions to the issues of the dialogue agenda.
Vote in mediation? We were faced with an interesting question, which at first sight could be seen as one of those dilemmas that are encountered in many cases while mediating disputes that are complex and involve many stakeholders, like the disputes between investing companies and communities affected by the investment. Put differently the question, which needs to be considered, could be phrases like “Could parties’ voting be used in dispute resolution and mediation processes, as an instrument to reach the settlement, to satisfy the parties involved or to overcome any deadlock?
The situation is an interesting one and it deserves to be a topic for conversation that can be informed by different areas of dispute resolution and mediation.
We started by reviewing our own cases, looking for any case where, as an agreed process, the parties had voted to agree on the solution. We did not find any case to refer
We then searched for any reference or example in training manuals on mediation and in international guidelines or legislation of certain countries, whether voting has been provided for or recommended to the parties to be considered during the mediation process. We did not find such reference or example, as well.
Voting, a democratic instrument, is widely and frequently used in finding solutions to social and economic problems faced in our lives; it is used in electoral processes as well as in the political discourse, but it is not used as an instrument in the disputes resolution and mediation process.
Although it is a democratic instrument it carries on the right of one party, the majority, to impose to the minority, therefore opposing the will of the latter.
Mediation, as a dispute resolution tool, is a voluntary process, in which a third natural and impartial party (the mediator) helps the parties in a dispute to communicate and achieve an acceptable solution by them.
Mediation strives for the agreement of all the parties, of every single person involved, and even if one doesn’t agree, no solution is archived. Mediation should consider everyone equally important.
Mediation, conceived and assessed as communication process, an interaction between the parties, is developed and works on the bases of principles like self-determination, the neutrality and impartiality of mediators and process confidentiality. The question is how voting fits in, if ever?
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Very interesting and challenging discussion of where mediation can go. It highlights the value of mediation as a process that can integrate other processes in a constructive way (and we already see expert determination being used effectively to solve side issues within a mediation). Great to see mediation presented within an ‘and and and’ frame rather than an ‘either/or one.
Thanks Rosemary. It may be worthwhile to look at mediation in the space created by different DR processes, even in the context in using hybrid processes.
Voting can be a useful method of determining preferences or even ranking priorities. In multi-party and multi-issue mediation, I can see how it could be a useful tool in narrowing down resolution points. The important thing is that, at all times, every stakeholder should sustain their volition and have an unrestrained voice in arriving at the solution.
Yemi Akisanya
Good point. Many thanks for your comment, Yemi!
I think it is well understood that democracy is an imperfect tool. I think there’s a Churchill quote… ‘Democracy is the worst form of government, except for all the others.’ Voting on a solution to a conflict risks simplifying the issues and results in parties focusing on positions rather than the underlying interests e.g. the Brexit vote in or out, but nothing in between.
That said, some conflicts – particularly large multi-party ones, and those on a national or international scale – voting can be a very useful tool. It has advantages such as speed and legitimacy, by allowing more people to participate. Furthermore, the interests of the many are obviously important and voting can provide a useful indicator of what these are. The interests of the few can still be protected provided that the voting process is not definitive and is still accompanied by some constructive discussion.
Thanks John. The balance between keeping the process effective without simplifying the issues is important indeed.