|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Forum LOS ANGELES DAILY JOURNAL .. WEDNESDAY, FEBRUARY 27, 2008 .. PAGE 6Crisis in Africa: Mediation Could Play a Crucial Role in HealingBy Roger D. Hartstone B lood stains the soil beneathAfrica’s abundant acacia trees. As it seeps into the water table beneath, the bodies and souls of millions disappear. Throughout the continent there are endless wars. Some are over scarce resources, some are over abundant resources and still others are born from the seeds of colonialism. Mediation may be applicable. This effective method of dispute resolution can overcome the hopelessness, the poverty and the callousness toward human life. On July 24, 2007, a survey was released expounding the hopefulness of sub-Saharan Africa. According to the New York Times, "Despite a thicket of troubles, from deadly illnesses like AIDS and malaria to corrupt politicians and deep-seated poverty, a plurality of Africans say they are better off today than they were fi ve years ago and are optimistic about their future. " Absent a middle class, abject poverty and corrupt politicians beget genocide. The alternative, also about power, is to have mediators, elders and power seekers negotiate over the ownership and transition of control. In the Darfur region of Sudan (about the size of Texas), rape, death and despair continue unabated, while the government in Khartoum gets bloated on oil revenues. Mediation could serve to thwart the violence while perpetuating the oil income. As with all systems, dispersal of wealth is the issue. Mediators, perhaps serving as ombudsmen, could demonstrate that violence reduces the productivity in the oil fi elds and thus minimizes the infl ow of capital. Given the economic model of maximizing the cash fl ow from the natural resource, the coffers of both those in power and those who wish to take power could grow. In essence, a power-sharing model might be exploited, via mediation, thereby releasing the political strife and increasing the wealth. Burundi continues to smolder as the government and the Forces Nationales de Liberation have struggled, since March 2006, to decide which side has the right to institute peace talks. Several years of unproductive negotiations have passed. In Rwanda, the potential catalyst for the 1994 genocide occupies the presidency while the U. N. International Criminal Tribunal for Rwanda holds purposeless trials in Arusha, Tanzania, removing the reality of that genocide from the lives of everybody in Rwanda. Inept jurisprudence ought to be replaced by in-country mediations wherein the present government negotiates to retain power with the past government. In this way, both sides could grow and co-exist without the need for additional destruction. he American Bar Association, in 2004 and 2005 and in association with the Rwandan Ministry of Justice, raised expedited mythology to an art form. They asserted that they trained 18,500 mediators throughout the country. Their goal: to bring justice to the common person. These 18,500 trained mediators must become their own army — an army for reconciliation. This can only be accomplished by convincing the oppressors that they will remain in offi ce longer and more safely with dispute resolution than with war. The Democratic Republic of Congo has seen 4 million people die as a result of war, poverty, disease and starvation since 1998. Mediated settlements between the government and the rebels may very well be the best answer to protecting the mountain gorillas, which were threatened last year as pawns that attract tourist dollars. Their extinction could be prevented by mediated accords. Rwanda has exported killing via the Interahamwe, the very same maniacal Hutus who brutally called for the extermination of the Rwandan Tutsi minority in 1994. The Ivory Coast has been divided in two since the 2002 coup attempt, leaving one to wonder when that nation’s civil war will begin in earnest. During two weeks at the end of March 2007, a cargo jet and a helicopter were shot down over Mogadishu, Somalia. As of April 26, 2007, the government reports that the insurrection is quelled. Impossible. The fi re cannot be extinguished so long as the fuels of despair, starvation and greed persist. Apartheid is gone from South Africa, but the ravages of HIV/AIDS are not. While wars continue, surviving children do so without parents, without education, without clean water and without hope. According to NPR, "Over the last two decades, the number of Africans living in extreme poverty has nearly doubled. " Angola, Nigeria and Sudan have oil, which through negotiated transitions might offer a cohesive approach to leave the remnants of colonialism behind, while proceeding forward in a united front of common interests. There is a huge potential market for Western companies providing services and goods, and from which Westerners could buy, not pillage, many products, including oil, foods and locally produced items. Mediation, along with education, economics and a sense of the cultural past can lift people together who would otherwise be enemies. They have common land, resources and futures that, through mediated agreements, they may realize together. Mediation can play a healing and signifi cant role where legal systems are sparse to nonexistent, where education is minimal, and where respect for life is constantly assailed. The alternative, though, is the clear-cutting of humanity across the African landscape.Roger Hartstone sits as a judge pro tem for criminal and civil matters in Apache County, Ariz. He may be reached at his fi rm, The Proper Process, at (520) 425-6886 or properprocess@gmail. com.
Mediate.com Simplicity Works by Roger D. Hartstone
April 2008 A ball. A bat. A glove. A field, A player. Baseball is brilliant in its simplicity. So too is mediation. Sometimes we forget the basics, while other times we complicate them for a variety of questionable reasons. The process of mediation ought not become burdened with new terms, alternative tools, legalese, convoluted techniques, or confusion. Two opposing parties and a neutral. That is it. A settlement conference is not a mediation. The difference is in the approach, the parameters, and the details. In confusing the two, a disservice is done to the clients. As important is the perpetuation of ignorance foisted on the public. It is the public, after all, that stands to benefit from mediation rather than the anguish of litigation. Expeditious and cost effective dispute resolution is better and eventually will be more acceptable than is prolonged litigation. A settlement conference is part of the court proceedings and is conducted by a judicial officer. Therein lies a major difference. The black robe, whether worn or inferred, is ever present. The clothing, therefore, is yet another difference. In a settlement conference, attorneys are often asked by the courts for a memorandum of points and authorities. While advantageous at trial, and possibly required by statue for settlement conferences, it only serves to entrench the parties by encouraging them to posture. Therefore, for a mediation it is counter-productive. When local rules of court use mediations and settlement conferences interchangeably, the result is confusion. In a settlement conference, discovery may be a goal of one or both sides. The sides may add to interrogatories and depositions, the settlement conference step. A skilled mediator will prevent a mediation from serving as merely an information gathering exercise. A settlement conference is valuable in finalizing proceedings before court sometimes, but it is drastically different from a mediation. Attorneys sometimes cloud the issue when they have a different agenda from their client. This usually rears its ugly head, is unacceptable in mediation, and can be dealt with expeditiously by reminding the attorney, in front of the client, that multiple agendas may preclude the client from actually disposing their issue. While some attorneys resent the obvious implications, they rarely persist. When attorneys become adversaries, the mediation process can be undermined. The neutral must react with clarity and firmness. Establishing and enforcing guidelines is a continual and essential part of the mediation process. When the attorneys become sales agents for the resolution, the neutral must utilize their assistance. Judges, as I have recently discovered, do not distinguish between the two processes. In fact, a group of fifty judges recently extolled the virtues to me of pre-mediation written statements wherein they required the attorneys for both sides to write a memorandum outlining the strengths and weaknesses of their arguments. A skilled neutral will discern for his/herself what the strengths and weaknesses are. Acknowledging the questionable betrayal of the client, why should an attorney reveal to a judge that there are weaknesses in their arguments? Further, such a statement can only serve as a half hearted, on-paper negotiation if it is assumed that the settlement conference for which the memorandum is created is a mediation. Written statements serve to anger and frustrate the participants. Therefore, it is a bad tool for a successful mediation. Mediation and settlement conferences are not the same process. A mediation, by definition, does not seek truth, does not adhere to rules of civil procedure, and has flexibility that is often lacking in a settlement conference. A mediation rarely allows the introduction of evidence or witnesses. They are superfluous to the process of reaching an accord. Lastly, mediation presumes that the parties will arrive at their own truths, absent blame, and with which they can proceed forward. Settlement conferences, as a judicial proceeding, seek conformity with the law and application of the law. There may be creativity, but much more severely constrained than in a mediation. Both processes have their own timely advantages. To confuse the two is unnecessary and complicates what ought to be a simple step. A mediation is a symphony, of words, emotions, people, and goals. As in a symphony where there are types of instruments, genres of works, and styles of conducting, so too is a mediation. In fact, a mediator is very much like a conductor. He or she does not play an instrument, but rather brings all the sounds together, cohesively. A mediator does not offer substance in the mediation, but rather clarifies and synthesizes the information offered. Biography
Roger Hartstone received his BA from the University of California, Berkeley, and his JD from Southwestern University School of Law, Los Angeles. He has mediated over 300 cases in a wide variety of civil matters and sits as a Judge Pro Tem for criminal and civil matters. His long standing interest in international mediation applicability was part of the reason for his recent trip to Tanzania, Kenya, and Rwanda.
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Home
