Good Faith and Intentions: The Key to Mediation
27 December 2022
Dear friends, we often get the question “what are the main prerequisites that must be met for the feasibility of an effort to manage conflict through mediation?” And how to fulfill those prerequisites to make the conflict resolution process more effective? There are many prerequisites that must be met and many factors that could influence it, but all of this would be better if it could be started with the good faith and intentions to make peace of the parties, or at least one of their parties.
Then how do we know the presence of good faith? One indicator is who requested the involvement of the mediator or the mediation institution. If the request for conflict resolution is submitted by the parties themselves, it could be ensured that the conflict resolution process will run more effectively because it shows the seriousness of the conflicting parties to find a way out of the problems they are facing. And it can be expected that the process of reviewing, negotiating, up to the implementation of the peace agreement that departs from those sincere intentions will run more efficiently and with results that could be accepted by all parties to the conflict.
Unfortunately, in practice, the cases of conflicts over land and natural resource to be handled by CRU are mostly not filed by the parties themselves; some are submitted by counterparts, some are submitted by government agencies, or companies. If the case is filed by a third party other than the parties, the steps that need to be taken are quite long; we need to meet each of the parties one by one to explain the intent and purpose of the mediation process and seek their consent to participate in the conflict resolution effort, and this process will take a lot of time and energy. Not infrequently, in this process, one of the parties feels that there is no conflict, or even all the parties do not feel that they are in conflict, so consequently the mediation process does not take place.
Often CRU also obtains requests to handle cases only from one of the parties to the conflict. This is certainly better than if the request comes from third parties. Of course, if a case is filed by only one of the parties, we still have to meet the other party to request approval for handling the case before moving on to the next process.
Thus, it can be said that if the conflicting parties already have the intention to resolve the conflict among them, one important step in the initial process has already been completed, namely the consent of the parties to engage in the common effort to resolve the problems among them. This also means that both parties are aware of the conflict among them. This is important because starting from the awareness of the presence of a conflict and the intention to resolve the conflict, at least two of the basic prerequisites for starting mediation negotiations have been fulfilled.
Does the presence of good faith and intentions mean that the conflict resolution process can be easily pursued? Yes, but only if the good faith is maintained until the end of the process. However, we have found that in some cases the sincere intentions of the parties are disturbed by various factors which may be outside the interests of the parties. For example, interference from parties who feel their interests are disrupted when the conflicting parties reach an agreement to resolve their problems through mediation. It is common knowledge that often in a conflict over land and natural resources there are quite a lot of interests of parties other than the parties involved which are complicating the problem and could erode the parties’ goodwill and motivation. It may even happen that distractions come from outside parties who have certain interests but are not involved as part of one of the parties.
Because of this, it is the responsibility of the conflict resolution convener, including the mediator and/or assessor to maintain the good faith and intentions of the parties from the start. This is needed to build a process that is conducive for the parties to be able to continue to negotiate to resolve their problems, the mediator has the responsibility to guide the process in order to produce the best possible solution for the parties. Therefore, mediators are required to be sensitive to various factors that potentially could disrupt the mediation process, including issues that could undermine the good faith and intentions of the parties, and then find creative solutions to overcome them.
In short, if we want a mediation process to run efficiently in terms of its implementation and to be able to reach an agreement that is acceptable to the parties, then having good faith and intentions to resolve the conflict of the parties is a very good start, and these intention needs to be maintained all throughout the process.
Photo by Asnidamawarni Sitiawan.