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Mediate.com

When to Quit

by Joe Markowitz
August 2012

Mediation's Place by Joe Markowitz

Joe Markowitz

Last week Kofi Annan, as prestigious and qualified a mediator as one could ask for, resigned his assignment to try to broker a peace agreement in Syria. Annan cited the Syrian government's intransigence, and the rebels' desire to achieve their ends by force of arms. In addition, he mentioned that “finger-pointing and name-calling in the Security Council” was making it impossible for him to do his job. Annan was quoted as saying that “without serious, purposeful and united international pressure, including from the powers of the region, it is impossible for me, or anyone, to compel the Syrian government in the first place, and also the opposition, to take the steps necessary to begin a political process.”

Mediators generally hate to admit defeat. We pride ourselves on our willingness to work with parties as long as it takes. Mediators know that the keys to achieving resolution are patience and persistence. If there is any glimmer of hope, we will pursue it. If they parties remain miles apart or appear stuck at impasse, we endeavor to remain positive. If they try to leave the room, we will follow them to the elevator to try to persuade them to stay.

So when is it appropriate for the mediator to send the parties packing? In some situations, probably a small minority, a mediator and the parties might come to the conclusion that the parties are better off resolving their conflict by other means. For example, one or both parties may have a genuine need to pursue their claims in court, maybe to prove a point, or maybe to experience a public airing of the dispute. If that kind of formal resolution is necessary or desirable, the mediator might refrain at some point from pushing the parties to a private, informal resolution that will not satisfy them.

In a case like Syria, it appears that the alternative to a peaceful resolution of this dispute will involve bloodshed and tragedy. A negotiated resolution still seems to represent the best course for all parties. And the outlines of a negotiated resolution are known. But the dictator does not appear willing to accept a resolution that requires his removal--the only possible resolution. And the rebels are unwilling to accept anything less. Those conditions by themselves might be enough to excuse a mediator who reluctantly tells the parties that if they would rather fight the matter to a conclusion, he cannot stand in their way.

Kofi Annan's explanation shows that there is more going on than that, however. He also explained that he is not getting the support needed from the people who hired him, in this case the fractious members of the Security Council. That means there is one dispute going on on the ground in Syria, while another one is going on among the members of the Security Council. (One interpretation of these events published yesterday in the Guardian puts the blame on heavy-handed Western powers, who demanded more concessions than Russia and China are willing to accept.) The mediator cannot continue to serve if he does not have the support of the people who retained his services. It is one thing for parties to a mediation to reach impasse. But if they cannot even agree on the parameters of the process, then it may be time for the mediator to step aside.

Biography


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   



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