MEDIATING NATURAL RESOURCE CONFLICTS: USEFUL TOOLS AND CONCEPTS MICHAEL BROWN SENIOR MEDIATION EXPERT STANDBY MEDIATION TEAM UN DEPARTMENT OF POLITICAL AFFAIRS

OVERVIEW OF THE PRESENTATION 1.Introduction to some mediation basics 2.Asessment phase – tools and concepts 3.Pre-negotiation preparedness phase – tools and concepts 4.Negotiation phase – tools and concepts 5.Implementation phase – tools and concepts 2

A working UN definition (United Nations Guidance for Effective Mediation, page 4) “Mediation is a process whereby a third party assists two or more parties, with their consent, to prevent, manage or resolve a conflict by helping them to develop mutually acceptable agreements” 1. INTRODUCTION TO SOME MEDIATION BASICS 3

FOUR BASIC POINTS ABOUT MEDIATING INTEREST- BASED NEGOTIATIONS 1.Separate the people from the problem 2.Concentrate on interests and not positions 3.Develop options that benefit both sides 4.Insist on using some objective criteria for evaluation the options

MEDIATION FUNDAMENTALS ACCORDING TO THE UN “GUIDANCE FOR EFFECTIVE MEDIATORS”:  Preparedness  Consent  Impartiality  Inclusivity  National Ownership  International Law and Normative Frameworks  Coherence, Coordination and Complementarity of the Mediation Effort  Quality of Peace Agreements

MEDIATION IS A PROCESS Assessme nt Pre- Negotiation Preparednes s (includes Designing a Mediation Process) Negotiatio n (‘Doing’ a Mediation) Implementatio n of the agreement The rest of this presentation is organized around these four phases of a mediation process.

Understand the natural resource and the conflict context:  Understand the resources in dispute (type, quantity, quality and nature)  What are the political-economy linkages?  How do resources relate to ownership, production, wealth distribution and power relations  Situate the resource conflict into the broader political context:  Is the resource conflict linked to a broader political conflict/context?  Do resource revenues finance political or military actors?  Does resource access drive any kind of division (ethnic, religious, etc.)?  How do resource issues interact between different levels of conflict?  Do a conflict analysis 2. ASSESSMENT PHASE - TOOLS AND CONCEPTS 7

Understand stakeholders, capacities, interests and positions:  Stakeholder mapping is essential  Consider positions and interests of key stakeholders regarding natural resources  Evaluate stakeholders’ capacity to engage in mediation  Assess each stakeholders’ access to information about natural resources  Gender considerations are part of this 8

Understand the governance framework for natural resources:  What is the NR governance framework (legal and policy dimensions, dispute resolution mechanisms, etc.)?  Identify NR dispute resolution frameworks (statutory and customary legal frameworks – binding? legitimate?)  Think about specific provisions regarding:  Benefit sharing  Public participation in decision-making  Access to information  Access to justice and dispute resolution  Environmental impact assessment related to NR issues 9

Provide negotiation training and orientation:  Very common to do in resource disputes  Training is common regarding:  Interest-based negotiation  Technical issues/skills regarding the resource  Can also help build mutual understanding and trust  Consider additional or specialized training for weaker parties 3. PRE-NEGOTIATION PREPAREDNESS - TOOLS AND CONCEPTS 10

Seek agreement on process design:  Agreement on process to design mediation can build initial trust and success  Process design issues can include:  Designation of mediator, mediation teams or mediator role  Choice of venue  Composition of negotiation teams  Strong agreement on process design usually translates into greater commitment to mediation process 11

Seek agreement on the scope of the negotiation:  Can agree early on the issues for the negotiation  Common natural resource issues to negotiate include:  Management authority  Wealth sharing  Land ownership  Resource rights  Population displacement  Access to justice  Illegal exploitation and compensation for damage or lost access  Some issues may not feasible to resolve through negotiation, so a mediator may prefer to not address them 12

Focus on the technical aspects:  Common tactic is to direct talks toward technical issues and away from sensitive political, cultural or ideological matters  Particularly common to focus on how to maximize benefits of a resource for all stakeholders 4. NEGOTIATIONS - TOOLS AND CONCEPTS 13

Delink resource ownership from resource use and management:  Ownership of natural resources is typically a delicate and complex issue and may be linked to issues of identify, history and culture  Separating issues of ownership from issues of management or revenue distribution can be useful  Sometimes, can remove ownership question from the negotiation (if too sensitive or complex to resolve) 14

Joint information gathering:  Resource disputes often involve technical information  Disagreements about this can be part of problem  Joint information mechanisms can improve transparency and confidence  Can have agreements on matters such as:  The kind of mechanisms to generate or collect information  The terms of reference required  The selection of technical experts  The review process to validate the information 15

Impartial technical expertise:  Technical experts can help ensure reliable and valid data is provided on a fair basis to all parties  Experts must be seen as impartial  Can help overcome impasses when parties have different information or inaccurate interpretations/conclusions 16

Provide clear implementation guidance on key issues:  Agreement should provide clear guidance for implementation on:  The timetable for implementation  Stakeholder obligations  Other important matters requiring clear implementation guidance include:  Monitoring and reporting process  Governance mechanism for implementation  Amendment mechanism  Dispute resolution clause 5. IMPLEMENTATION - TOOLS AND CONCEPTS 17

Sustainability and dispute resolution during implementation:  Sustainability of an agreement is influence by:  Buy-in of the parties  Extent to which root causes of conflict are addresssed  Agreement’s resilience (ability to withstand stresses of implementation)  Dispute resolution processes are important because grievances arise during implementation 18