Written by - Miss. Sasha Matar
(National Incharge, MediateGuru Lebanon)
Abstract
In a period of tense sectarian-political struggle in Lebanon, leading to more divisions in an already divided society, the need to explore the available possibilities for managing conflict has never been more necessary.
This analysis is considered as an introduction to the different methods available to resolve a conflict in today’s world and their impact on the direction of the conflict at stake, as well as their impact on the future of the relationships among the parties in conflict. This article will not only introduce to its reader the methods used to solve different conflicts but also bring to light the way those methods are being practically used around the Arabian Peninsula, especially in Lebanon.
This article will give a brief historical background about the alternatives available for dispute resolution (ADR), familiarize the reader with these alternatives, display their application how, and then finally reflect upon the future of ADR globally and locally, in the Lebanese society.
I. Introduction
II. Historical Background of Conflict Resolution Mechanisms
III. Different Conflict Resolution Mechanisms
IV. Future of ADR Usage
I. Introduction
“Conflict can and should be handled constructively. When it is, relationships benefit. Conflict avoidance is not the hallmark of a good relationship. On the contrary, it is a symptom of serious problems and of poor communication.”
― Harriet B. Braiker,
(Social and Clinical Ph.D. Psychologist, Best-selling Author, Internationally-renowned expert in women’s issues.)
Conflict is when two or more strong motives that cannot be solved consensually arise. When such motives are driven with strong impulses, a person is less able to bring rational thinking when handling the problem.[1] Given the possible absence of rationality, a third party’s involvement in the process to resolve a conflict deems necessary. Hence, conflict resolution refers to the process geared towards reaching an agreement in any kind of dispute between two or more parties.[2] Multiple elements can further influence the rise of conflict. Consequently, conflict resolution literature has been studied in multiple disciplines whether law, economics, psychology, anthropology, etc… And the strategies used differ from one discipline to another.
II. Historical Background to Conflict Resolution Mechanisms
A layman's natural tendency to fix any legal dispute would be through a lawsuit in state courts. Thus, litigation is the most common form of judicial dispute resolution.[3] However, litigating a dispute is increasingly being considered as slow, costly, and very rigid in its application, while its public nature is being regarded as privacy invasion[4]. In some cases, the judicial system is being accused of its dependency on other powers of governance, corrupt and biased ones.
With the intentions to avoid complications due to the weaknesses of the judicial litigation process, the Western societies were the first to develop and institutionalize alternative methods to the judiciary and litigation process and encourage their usage. [5] However, The Middle East and particularly the Islamic world, have centuries of understanding when it comes to resolving disputes outside of a court trial.[6]
Furthermore, the initialisation of Alternative Dispute Resolution (ADR) witnessed in the Arab countries in alignment with the interests of the international community as it has been illustrated throughout the years, are allowing the Middle to take part of the fast-growing club of successful emerging markets.[7] Lebanon is influenced by the Arab and Muslim culture in the practice of ADR, where a third party usually intervenes to solve a conflict between two members sometimes neighbours! Which shows that a third person is usually used for the resolution of conflicts but this third party is commonly related to the parties.[8]
III. Different Conflict Resolution Mechanisms
“The most significant beneficiary of the increase in international benefits, creating international disputes in the Middle East has been arbitration.”[9]
1. Arbitration is a pacific, but always jurisdictional, way of settling disputes by an authority, which is usually made of one or several arbitrators that have the power to judge, where the delegation does not come from the state , but from an agreement whose parties may be individuals, companies or states. Thus, it is a “private justice” increasingly used with the development of international trade. [10]The regulations governing arbitration in Lebanon and internationally are present in the Lebanese Code of Civil Procedure (LCCP).[11] The regulations governing the ADR make Lebanon one of the friendliest countries for arbitration in the Middle East.[12]
2. Mediation is a method of settling disputes outside of a court setting, which calls for the imposition of a neutral-third party, known as a mediator, to act as a link between the parties.[13] The mediator is usually personally involved in the process and uses social and subjective arguments to resolve the dispute. He is chosen based on his reputation, age and experience, by the local business community.[14] Mediation was introduced in Lebanon through the Centre Professionel de Mediation (CPM) at the Saint Joseph University, a mediation and training academy, with the purpose of promoting the concept of mediation in Lebanon. On September 24, 2018, The Lebanese Parliament passed the Judicial Mediation Law.
3. Negotiation is a method of dispute resolution where either the parties themselves or representatives of each party attempt to settle conflicts without resorting to the courts. No third party is involved.[15] Negotiations may be used to resolve an already-existing problem or to lay the groundwork for a future relationship between two or more parties.[16]
Every aspect of our lives involves negotiation, it is present in our daily lives and it is not surprising to find negotiation one of the essential ADR’s.
IV. Future of ADR Usage
In societies where there is political and cultural distance from the law, it is necessary to seek alternatives to resolve disputes.[17] Thus, the continuous promotion of the ADRs not only in Lebanon, but on a global scale, requires a whole strategy which includes; establishing training centres, organizing events and seminars the way MediateGuru is acting to showcase ADR and particularly mediation, and of course, creating links with the respective governments for more credibility. Furthermore, it is important to encourage further foreign investments in such projects …
In societies where there is political and cultural distance from the law, it is necessary to seek alternatives to resolve disputes.[18]
The Arab League is already trying to advance its capabilities and usage in conflict resolution. The entity has made efforts to achieve reconciliation or negotiation, for example, in Iraq but failed given the fear of the predominant Shia in Iraq being oppressed by the mostly-Sunni parties of the Arab League.
The Arab League has also tried to mediate some disputes in Lebanon between the March 8 blocks and March 14.[19]
Looking farther into the future, Lebanon can expand its ADR capacity through collaboration with other international actors by implementing internationally accredited academic curriculums in different faculties around the country dedicated to showcase ADR and their importance in the future of dispute resolutions. Small efforts are being made, introducing MG in Lebanon was a major step. The importance of peace building through negotiation cannot be stressed enough, especially in the lights of the foggy future of Lebanon.
[1] Encyclopædia Britannica, “Conflict”, The Editors of Encyclopaedia Britannica, Encyclopædia Britannica inc, February 03, 2014, https://www.britannica.com/science/conflict-psychology. [2] de Dreu, C. K. W., Beersma, B., Steinel, W., & Van Kleef, G. A. (2007). The psychology of negotiation: Basic processes and principles. In A. W. Kruglanski & E. T. Higgins (Eds.), Social psychology: Handbook of basic principles (2nd ed., pp. 608-629). New York: Guilford Press. http://psychology.iresearchnet.com/social-psychology/antisocial-behavior/conflict-resolution/ [3] https://en.wikipedia.org/wiki/Dispute_resolution [4] Advantages of ADR, https://lawhandbook.sa.gov.au/ch27s10s01.php [5] M. Jamal Chaykhouni (Arbitrator & Courts Expert since 2006), ADR & Arbitration in Middle East, a Story to Share, May 27, 2015 [6] Idem. [7] Arbitration & Mediation in The Arab World: A Growing Phenomenon, Nasser Ali Khasawneh & Vicky Sfeir, April 2011, https://www.mediate.com/articles/AliKhasanwehN1.cfm [8] El Meouchi C., Torbey R., Abdallah F., Absi S., “Lebanon Country Chapter”, ADR Centre, MED 200/086-828. [9] https://www.corporatedisputesmagazine.com/alternative-dispute-resolution-in-the-middle-east [10] Prof. Habib Kazzi (Full Professor of International Trade and Investment Law at the Lebanese University), Arbitration Law Lectures. [11] Art. 762 to Art. 808 LCCP [12] Jana Karam, Arbitration in Lebanon, International Arbitration, June 2015, https://www.international-arbitration-attorney.com/arbitration-in-lebanon/#:~:text=Arbitration%20proceedings%20in%20Lebanon%20are,(Articles%20809%20to%20821). [13] Definition of Mediation, Stephen H. Gifis, Barron’s Law Dictionary, Sixth Definition 2010. [14] El Meouchi C., Torbey R., Abdallah F., Absi S., “Lebanon Country Chapter”, ADR Centre, MED 200/086-828. [15] Definition of Negotiation, Stephen H. Gifis, Barron’s Law Dictionary, Sixth Definition 2010. [16] https://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/03.html [17] Michael W. Suleiman commentary on Cathie J. Witty, Mediation and Society Conflict Management in Lebanon. New York Academic Press. 1980 [18] Hesham Youssef, Mediation and Conflict Resolution in the Arab World: The Role of the Arab League, IFSH(ed.), OSCE Yearbook 2013, Baden-Baden 2014, pp.299-310 [19] Idem.
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