See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/318421561

Mediation

Chapter · January 2005

CITATIONS READS
0 667

1 author:

Rita Namano
University of Nairobi
2 PUBLICATIONS   0 CITATIONS   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

Chapter Review View project

All content following this page was uploaded by Rita Namano on 14 July 2017.

The user has requested enhancement of the downloaded file.

Chapter Review: Merrills, J.G. (2005). Mediation. In International Dispute Settlement (pp. 28-

44). Cambridge: Cambridge University Press

Reviewed by Rita Nangira Namano

R52/87368/2016

Due date 9th May 2017

Table of Contents

Mediation .................................................................................................................... 3

Mediators .................................................................................................................... 4

Consent to mediation .................................................................................................. 5

Functions of mediation ............................................................................................... 6

The limits of mediation ............................................................................................... 8

Conclusion .................................................................................................................. 9

References ........................................................................................................................ 10

Footnotes ...........................................................................................................................11
J.G. Merrills is a Professor of Public International Law at the University of Sheffield, in England.
The book used is the third edition which factors in the ‘diplomatic' means of settlement inclusive
of negotiation (matters in all its entirety are in the other party), mediation, inquiry, and
conciliation. The ‘legal' means consisting of arbitration and judicial settlements, the World Trade
Organization's provision towards Dispute Settlement Understanding, the Law of the Sea
Convention and finally the role of political institutions, the United Nations, and regional
organizations. 1
Merrills, an accomplished Professor in the field and a renowned author has authored this book to
include references with regard to the recent conflicts and expounds on how the UN and the
regional organizations have sought to address the disputes with regard to their mandate. Any
reader would better understand the literature therein with these examples included therein.2
The book International Dispute Settlement (2005), has twelve chapters which include:
Chapter One is on Negotiation, Chapter Two Mediation, Chapter Three is about Inquiry, Chapter
Four Conciliation, Chapter Five on Arbitration, Chapter Six The International Court I:
Organisation and Procedure, Chapter Seven The International Court II: The work of the Court,
Chapter Eight is on the Law of the Sea Convention while Chapter Nine is on International trade
disputes, Chapter Ten is on the United Nations, Chapter Eleven is about the Regional
Organizations and Chapter Twelve is on Trends and Prospects.

This paper thus seeks to summarize Chapter Two of the book that is Mediation as in the
following different segments.
Mediation
In a world that is plagued with disputes there is need to resolve these disagreements
hence Merrills starts off by giving the circumstances under which the parties to an international
dispute are unable to resolve the conflict by negotiation, the introduction of a third party
intervention is deemed necessary towards helping the conflicting parties to come up with
acceptable solution hence breaking the stalemate.

1 Ibid. at ix-x
2 Ibid.. at x
 4
CHAPTER REVIEW
He further goes ahead to help us understand the duty of mediators which include
encouraging the parties to resume negotiations should the conflicting parties reach a stalemate,
they also act as messengers in the mediation process, in some cases, they help in carrying out
conflict analysis for informal proposal of viable resolutions to the parties in conflict. He is of the
view that the mediators acting as intermediaries contribute to the ‘good offices’ in
communication enhancement between the warring parties, as he goes on to say that mediation
may be equated to an intermediate move between conciliation and the offices by a third party.3
Mediation may be equated to negotiation only that the mediators informally propose
resolutions after carrying out independent investigations.
To help us understand the process of mediation, Merrills explains that the parties have to
voluntarily seek for mediation or may be offered by outsiders. 4 At the onset of the conflict,
parties may now have the hope of resolving the conflict. During the mediation process, the
parties in conflict are always open to the mediator's solution but are not compelled to embrace
them in the long run. This helps in ensuring that the parties maintain an upper hand in the dispute
for purposes of ensuring continuity in ensuring that their interests are partially met should the
process fail. Should the degree of the dispute be of high sensitivity, then the mediation process
will not be publicized. Mediation being a voluntary conflict resolution process, its objective may
5
not always parties due to lack of a willing mediator. As a result, not all disputes can be
mediated upon, as there might be the absence of a willing mediator or better still the parties may
not seek for the mediator services due to the fact they feel they are hierarchically ranked high
among the states (that is the periphery countries/ super- power states).

Mediators
Merrills identifies the different levels of mediators as international organizations, states,
individuals. Mediation may be carried out by non-governmental organizations the International

3 This comment is derived from discussions Chapter 3; S. Touval and I. Zartman (eds.), International Mediation in Theory and Practice, Boulder, 1985; Chapter 2C;
D.J. Bercovitch and J.Z. Rubin (eds.) Mediation in International Relation, London, 1992Chapter 2B; K.V. Raman (ed.), Dispute settlements through the United
Nations, Handbook on the Peaceful Settlement of Disputes between States, New York, 1992 among other mediation scholars.
4 Ibid. at 29
5 Op. cit.
 5
CHAPTER REVIEW
Committee of the Red Cross (ICRC), intervene when there are armed conflicts and abuse of
human rights but at the same time keeps away from political disputes.6
The international organizations include the United Nations and the Regional
organizations; in order to carry out their mandates with regard to resolving conflicts, they
provide mediators and good offices.
Mediators may be best suited to mediate the dispute in question-based on the religious,
historical, geographical interconnections with the parties in conflict as he gives examples of
conflict between India and Pakistan over Kashmir in 1965 where the Soviet Union was
instrumental in securing a ceasefire when the war had already broken out. This religious and
historical connectedness, later on, morphed to political interests; restoring peace to areas close to
the Soviet borders while avoiding Chinese intervention hence advancing the Soviet influence in
the region. 7 This, then means that, even though mediators go into mediation as individuals, they
at times seek to address the political interests of their states. This may result in the introduction
of proxy wars as additional external parties either directly or indirectly, with known or unknown
interests addressed.
Merrills makes it known that mediation is an avenue towards encouraging the middle
ranked states to have an opportunity towards abetting the Super-power states in conflict and or
dispute resolution through mediation while taking care of their interests. These same comments
are made by Touval and Zartman. 8
Consent to mediation
Merrills considers mediation as a voluntary process and it is never forced on the
conflicting parties rather it is asked for in consensus. 9 Failure to choose this form of bringing
sanity to the conflict may turn out to be problematic. This is due to the fact, the mediator’s
proposals may be acceptable to either or both of the parties though not binding.

6 Cited in the book from D. P. Forsythe, ‘Humanitarian mediation by the International Committee of the Red Cross in Touval and Zartman, International Mediation,
p.233. 1985
7 Ibid. at 30
8 See the partial negotiator Algeria and the US hostages in Iran International Mediation p.21

9 Ibid. p.32
 6
CHAPTER REVIEW
Once the parties to the dispute accept mediation as a way to resolve the conflict, they do
accept the fact that the dispute or conflict is internationalized. He further elucidates that the
concerns raised are legitimately watched upon and that whatever the outcome, the world is made
known of the same. The settlement reached does not always fully satisfy the parties thus a
compromise has to be made by both the parties.
Merrills observes that mediation may at times be the best-preferred choice of peaceful
resolution of a dispute when the parties realize that they are hurting each other (hurting
stalemate) hence the need for a peaceful way of resolving the conflict as well as revision of their
policies. He highlights the fact that stalemate happens the moment the disputing parties
recognize the fact that should they keeping on with the dispute does not guarantee or justify the
end which proves to be more costly, than ending it.10
The proposed mediators must thus be acceptable to both the parties and the conflictual
parties must applaud mediation as the preferred method of resolving the conflict. S (he) must be
neutral, be of great personality, great demeanor, knowledgeable. To some extent, Merrills is of
the view that the mediator should be wholly neutral for the mediation process to be successful.
This view is at times farfetched as most mediators are skewed towards safeguarding their
interests, their organizations' interests and to some point their state's interests. However, some
humanitarian watchdogs tend to be neutral as human rights abuse are inexcusable.
The fact that the mediating individuals have different interests at different levels is not
something to be disqualified on, as at the end of the mediation process, they leave the parties that
which they cannot refuse as it is of great benefit.
It is also worth noting that, the mediator’s non-neutrality may be a driving point towards
ensuring that the objectives of the mediation process are met. This may be realized by having the
other party that has no relationship whatsoever with the mediator feel that solutions to the
conflict will be delivered.11
Functions of mediation
Merrills gives a possibility where parties to the dispute may not think that mediation is
the best means towards resolving disputes, that by themselves, an agreeable settlement may not

10 op.cit. p.33
11 Touval and Zartman, International Mediation, p.257.
 7
CHAPTER REVIEW
be reached at on their own. Should such a situation occur, then the mediator has to come up with
a ‘win-win’ solutions that both parties will be satisfied. If not, then the mediation process will be
termed as a failure. Usually this is not recommendable as it is the role of the mediator to ensure
that parties do not withdraw from the mediation process without a favorable agreement.12
Communication with the parties in conflict is of great importance as it helps in loosening
from the existing tension and creating a favorable atmosphere for mediation to take place. Once
the communication avenues are open, the mediator may act as a go-between in relaying
information between the parties in conflict. 13
Merrills gives a caveat that not all disputes can be solved by doing away with
misunderstandings. The parties rely on its identity, their stand on its interest vis-à-vis the
adversary’s capabilities and intentions.
To some extent, a stronger state may force its aims on the disputing parties so as to ensure
that a settlement is reached whether accepted by the opposing party or not. This poses a great
challenge should the parties in conflict be equally strong as mediation may fail should the other
party does not accept to compromise. It is thus the duty of the mediator to manipulate them to
reach an agreement.14
Super-power states are the most preferred mediators as they do force the parties to accept
the solutions proposed towards dispute settlement. This is realized by threatening the parties with
economic sanctions or by rewarding the parties. This results to the parties sacrificing their main
objectives for purposes of saving the image and avoiding losses where some kind of winning
proposals are made. This at the end of the day, is deemed as an achievement and not a ‘lose-lose’
settlement.
Merrills reminds us of the fact that during the mediation process the mediator has to
make sure that the conflicting parties adhere to the International law and the United Nations
Charter, and conform to the judicial decisions and resolutions of the international organizations.15
Parties may foresee a ‘lose-lose’ outcome amongst the parties, hence may choose to walk
away from the mediation table. This kind of gesture may seem like the mediation process has

12 Ibid. at 36
13 Ibid. at 37
14 Ibid. at 38
 8
CHAPTER REVIEW
failed but in real sense the parties may go for other conflict resolution methods hence the
resettlement of the dispute.
The limits of mediation
Even though the voluntary process and the mediator's willingness to mediate in the
dispute results in dispute settlement, Merrills echoes other scholars view that mediation is subject
to important limitations. The timing and the parties’ willingness to make concessions, contributes
towards having a successful mediation process. 16 The conflict’s ripe moment has to be reached
at for the mediation process to be called upon and a viable settlement reached. He further
elucidates that in some conflicts as was in the Falkland Crisis 17 , it is necessary to have a
mediated settlement when one or both the conflictual parties abandon their claims, doing away
with the losses. Mediation should thus be thought of at the time when both sides believe in their
military capacity and that to that extent, may not be able to yield the desired goals.18
Conversely, Merrills warns that a future derived settlement may not be viable to ensuring
the success of the dispute resolution agreed upon as it may be ineffective. To ensure the
implementation of the agreement, there has to be someone to supervise its implementation.
He also goes ahead to mention that exhaustion or the risks of escalation are factors that
may help the mediator19 thus help in reaching a settlement as he gives the example of Kashmir
dispute which had reached the ripe moment
At times, partial solutions may be derived from mediation and not the much expected
permanent solution. This he posits that in the long run, it may turn out problematic. This is due to
the fact that, not all interests will be fully met in the agreement. As one of the party will have to
some extent abandon its main objective and receive a little in return20 hence the ineffectiveness
of mediation. He goes ahead to point out the reason as to what circumstances led to the Gulf War
of 1991. 21

15 Ibid. at 40
16 Ibid. at 40
17 Ibid. at 41
18 See Cohen, ‘Cultural aspects’ p.120.
19 Ibid. at 42
20 Ibid. at 43
21 Freedman and Karsh, The Gulf Conflict p. 430-2
 9
CHAPTER REVIEW
Merrills is concerned that should an issue in dispute has been ingrained in the state's
politics of one or both parties, the government may come up with solutions that may not be
deemed fair by the other party. This in its own share, results to criticism and impracticality to
follow consistent procedure. Domestic consequences are experienced hence the need for
confidentiality.
He concludes that mediators’ role is not only to guide the mediation process rather they
facilitate dialogue, give information and suggestions, identify a wide range of solutions for
purposes of ensuring success of the process. Thus both the mediator and the conflicting parties
need to demonstrate trust and be open to the suggestions presented.22
Conclusion
To this end, it is my view that Merrills seem to support scholars on mediation with regard
to the conflict ripeness (Zartman, 2008); the existence of a mutually hurting stalemate, but fails
to acknowledge the fact that time in conflict is not measurable.
That in some conflicts, should the interests are not the same as the values some conflicts
issues may be redefined or fractionated to different subunits, and to that effect tackled differently
(Rubin, 1981).
With the internalization of conflicts and in some cases when a conflict unexpectedly
erupts, it is to some extent impossible to clearly define the group characteristics and the conflict
boundaries in question. Merrills does not acknowledge the fact that with the entry of different
parties into the conflict that the conflict may seem a challenge to resolve.
Merrills does not tackle in depth, the functions carried by mediators, as proposed by
(Touval & Zartman, 1985), which include according to them ‘communicator’, ‘formulator’ and
as a ‘manipulator’. That the mediator may at times empower the underdogs in the conflict so that
they may not be forced by the top dog into agreeing to a one-sided agreement. This ensures
ownership of the agreement, the longevity of the agreement, and acceptance of the agreement
and may subsequently lead to the implementation by both parties of the agreement.

22Ibid.. at 44
 10
CHAPTER REVIEW
References

Forsythe, D. (1985). Humanitarian mediation by the International Committee of the Red Cross.
In Touval, & Zartman, International Mediation in Theory and Practice (p. 233).
Rubin, J. (1981). Introduction. In Dynamics of third party intervention. Kissinger in the Middle
East, 136-147.
Touval, S., & Zartman, I. W. (1985). Introduction: Mediation in theory. In I. W. Zartman, & S.
Touval (Eds.), International mediation in theory and practice (pp. 7-17). Bouder, CO:
Westview.
Zartman, I. (2008, December 20). ‘Ripeness’: the importance of timing in negotiation and
conflict resolution. Retrieved from E- International Relations: http://www.e-
ir.info/2008/12/20/ripeness-the-importance-of-timing-in-negotiation-and-conflict-
resolution/
 11
CHAPTER REVIEW
Footnotes
1 Ibid. at ix-x

2 Ibid. at x

3 This comment is derived from discussions Chapter 3; S. Touval and I. Zartman (eds.), International Mediation in Theory and Practice, Boulder,

1985; Chapter 2C; D.J. Bercovitch and J.Z. Rubin (eds.) Mediation in International Relation, London, 1992Chapter 2B; K.V. Raman (ed.), Dispute

settlements through the United Nations, Handbook on the Peaceful Settlement of Disputes between States, New York, 1992 among other mediation

scholars.

4 Ibid. at 29

5 Op. cit.

6 Cited in the book from D. P. Forsythe, ‘Humanitarian mediation by the International Committee of the Red Cross’, in Touval and Zartman,

International Mediation, p.233.

7 Ibid. at 30

8 See the partial negotiator Algeria and the US hostages in Iran International Mediation p.21

9 Ibid. p.32

10 op.cit. p.33

11 Touval and Zartman, International Mediation, p.257.

12 Ibid. at 36

13 Ibid. at 37

14 Ibid. at 38

15 Ibid. at 40

16 Ibid. at 40

17 Ibid. at 41

18 See Cohen, ‘Cultural aspects’ p.120.

19 Ibid. at 42

20 Ibid. at 43

21 Freedman and Karsh, The Gulf Conflict p. 430-2

.
22 Ibid. at 44

View publication stats