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One Key to Middle East Peace: How a Dispute Resolution System Could Handle Conflicts Arising from Dismantlement of Settlements in West Bank & Gaza

by Jonathan W. Reitman
May 2004 Jonathan W.  Reitman
As of this writing, Israeli Prime Minister Ariel Sharon, with President Bush’s backing, is planning for a unilateral withdrawal from the Gaza strip, dismantling the Israeli settlements there and relocating the settlers from them (presumably to Israel).

This will be a painful process for Israelis and has aroused fury among the settlers and their political allies in the Knesset, who accuse Sharon of “treason” and worse. Nevertheless, Sharon seems determined to proceed with the dismantlement process. What happens in Gaza will undoubtedly set a precedent for the relocation of settlers from the West Bank.

Precisely which settlements in the West Bank are to be dismantled is hotly contested. Palestinians insist that all West Bank settlements beyond the 1967 “Green Line” must go. Sharon (again with Bush’s support) has said some of the more established, populous settlements will remain, to become part of Israel, in exchange for other land ceded to a new Palestinian state.

Whichever settlements stay or go, it is clear that numerous conflicts will arise when the time comes for settler relocation. How Israel responds to those conflicts will determine how smoothly the process will proceed. Every Middle East observer notes that a successful settlement relocation process is one of the keys to transforming the Israeli-Palestinian conflict.

Thus it seems wise to anticipate how our Dispute Resolution system design principles might apply to these conflicts. Indeed there are some in the Israeli government who are quietly exploring the contours of such a system, and how it might be initiated.

I have been asked to offer some guidance on building such a system.

In designing an ADR system to work with issues arising from the dismantling of settlements, a number of principles should be kept in mind:

1) Who has participated in designing the system? At some point (the earlier the better) settler representatives should be involved. Obviously, this will require reasonable people who are willing to think conceptually (and this point hypothetically) about these issues, realizing it is better to prepare for them calmly, not in a crisis response at the time settlements are actually dismantled. Settler participation at this planning stage creates their "buy-in," but they must be made aware of the limits of what is possible, so unrealistic expectations are not created.

I do not underestimate the difficulty of securing settler participation at this stage. Any such discussions would be accused of “selling out” the settler movement. How to work with this resistance is discussed below.

2) Begin with the end in mind. In an ideal system, what are the objectives of such a system? The following is a starting point for thinking about system design:

a) The system is perceived by all parties (the settlers who are leaving, the government, the communities into which the settlers will move, the international community) as fair, both in its process and results. To the extent possible, all resolutions will be consistent with halachic (Jewish) law.

b) The system recognizes Government's responsibility to assist settler resettlement in light of the Government's policies which encouraged settlement development in the last decade.

c) The system is easy for settlers to access ("one-stop shopping") and each settlement has a representative within Government (one person) who is responsible for resettlement of those within that settlement.

d) The overall costs of the system and the resolutions are affordable to Government. Compensation for property is based on objective assessments of the property's value, as determined by professional assessors.

e) The system creates different dispute resolution opportunities for different categories of settlers (e.g. those who have moved within the past three years vs. those who have been in settlements for a decade, those who have built homes vs. those who have lived in temporary housing, those who have children vs. single people). One size does not fit all.

f) The system examines resettlement from a holistic perspective: what are the settlers' needs for economic assistance, housing, retraining or educational opportunities, retaining a sense of community with those with whom they have lived, and feeling welcomed by their new communities? Interdisciplinary teams of lawyers, social workers, rabbis and educators should be formed to assess these questions, and appropriate support services should be provided.

g) The system resolves disputes and accomplish resettlement within a defined and reasonable period of time. No matter how well designed, the settler relocation process will be traumatic for Israel and should be concluded as quickly as possible.

h) The system has an escalating forum for resolution of disputes:

  • at the first level, informal discussions and information would be shared. At this level settlers would have the chance to voice their concerns, and some typical options (and ranges of compensation) would be explained. While a settlement at this stage is possible, no decision would be required. Settlers would be encouraged to begin to think concretely about their needs.

  • At the second level, problem-solving will begin in earnest. Proposals from settlers will be entertained, then evaluated by the responsible Government official. Wherever possible, the dispute should be resolved at this early stage, which requires Government officials with authority to make an agreement.

  • If there is no resolution, the third level would involve formal mediation, in which the mediators (who have been specially trained) would encourage realistic resolutions. Israel must decide if the settler would be permitted to be represented by legal counsel or other advocates at mediation. It might create a panel of mediators and allow the settler and Government representative to select one from that panel. Israel must decide whether all mediators on the panel will be Israelis, or whether it is useful to have some international mediators as well. Both parties must participate in good faith in the mediation. Mediators should not have a stake in the outcome. The discussion points and results of mediation should remain confidential. The mediation process should allow settlers to make informed, uncoerced and voluntary decisions.

  • A fourth level would provide for non-binding arbitration, in which specially trained Arbitrators would hear argument from both parties and, within a reasonable period of time, render a decision on all issues presented for resolution. Again, a panel of arbitrators would be helpful, with the parties agreeing to select the Arbitrator. Legal counsel should be made available to settlers in Arbitration.

  • As a fifth and final level, an arbitrator's decision could be appealed to the courts. However, there should be limited grounds for such an appeal (e.g. the arbitrator "clearly exceeded his authority," or to prevent "manifest injustice.")

i) The system must be understandable by settlers, which requires some education.

j) The system should include a feedback and evaluation component, and be capable of revision as implementation is undertaken. Israelis have immediate and appropriate concerns about questions of timing and the initiation of any ADR process, in light vocal settler opposition to anything which hints at concessions. This is a dilemma which North American conflict resolution professionals confront in many community situations.

That experience and the literature on these processes suggest that they should NOT proceed unless the issues are "ripe" for consideration & resolution. What does this mean for Israelis considering designing an ADR system?

"Best Practices" suggest exploring the following criteria:

1) The issues are of high priority and a decision is needed.

2) The issues are identifiable and negotiable.

3) There are enough time and resources to undertake ADR.

4) The political context is favorable (leadership supports the ADR approach).

5) The parties are willing to negotiate and representatives for their interests are available.

My understanding suggests #1,2 & 3 are present, #4 is possible, and #5 is questionable. Under these circumstances, what seems called now for is intensive discussions about designing a workable system and “below the radar” exploration of support for its use (both among settlers and the government). While intervention as soon as practicable will is helpful, premature intervention will cause more problems that it solves (thus violating the cardinal rule of “do no harm”).

It is commonly assumed that there will be no cooperation from the settlers at this stage. I am sure that is true for many (most?) settlers. I wonder, though, if there are not some settlers who are willing to talk. It will be hard for many settlers to participate if they feel they are being asked to abandon their passionate commitment to the principles of settlement, but some don't have that commitment.

I believe Israel must identify, seek out and build relationships with those settlers whose ideological commitment is not so deep: some settlers live in settlements because the housing is cheaper. Some commute and work in Tel Aviv and Jerusalem and Haifa (in the last three years, I have taught many of them in my graduate courses on Negotiation, Mediation and Conflict Management for Clark University’s Israel program).

There is always concern that inducing settler participation will be seen as "manipulation," but these discussions will be open to anyone. The government could publicly announce its desire to have settler participation in shaping any legislation governing relocation.

As others have recognized, it is essential that the political leadership be part of Israel’s consideration and creation of support for any ADR plan. Professor Robert Mnookin from Harvard Law School is working with Gilead Sher, former lead negotiator at the Camp David Summit in 2000 to develop model legislation or relocation. It is respectfully suggested that the ADR system is an essential element of such legislation.

Although the Likud leadership has supported the Gaza pullout, the rank and file has rejected it. Neverthless, Sharon has signalled his determination to proceed with a modified relocation, despite the referendum results.

In conclusion, I strongly urge the Israeli government to explore these questions NOW, so that as the process moves forward and relocation becomes seen as inevitable, Israel will have a plan and people in place, ready to go.

Biography


Jonathan W.  Reitman is a practicing attorney since 1978; full time mediator, facilitator and arbitrator since 1990. Practice concentrates on mediation, training, conflict resolution and consulting. Substantial experience (1000+cases) in the mediation and arbitration of a variety of complex civil disputes, including business, commercial and insurance matters; employment, labor relations and workers' compensation; environmental and land use; boundary and property disputes; construction project matters; family law, and public policy matters involving state and federal agencies. Extensive facilitation of multi-party stakeholder groups on public policy issues (environment, telecommunications, higher education, transportation, workforce development), involving as many as 60 parties. Has served as Court-appointed mediator, referee or Guardian ad Litem in more than 200 cases.

Frequent lecturer and trainer on ADR, including presentations at national and regional conferences; Adjunct Faculty, University of Maine School of Law since 1996; has conducted multi-ethnic workshops on Conflict Transformation in Bosnia and Republika Srpska; has trained participants from 15 different countries in England and Italy. Trained Arabs and Jews in Negotiation, Mediation and Conflict Management, Israel College, Tel Aviv, Israel, 2001-2006.

Facilitator of multi-day strategic planning retreats for statewide university systems, law firms, a national environmental coalitions, a national conference on "Reinventing Justice," and a national advocacy organization on end of life issues. Has designed and facilitated community meetings with 250-300 attending on highly contentious ecopnomic development, land use, community services and transportation issues. Sample facilitation list available on request.

Co-chair of 2000 Annual Conference and Board member, New England Chapter ofAssociation for Conflict Resolution (ACR); former chair and newsletter editor, International Sector of Society for Professionals in Dispute Resolution (SPIDR). Membership on mediation panels including American Arbitration Association Labor, Commercial Panels; CADRES Land Use, Civil Litigation and Domestic Relations panels; General Services Administration Panel of Mediators for EEO disputes in federal agencies; United States Postal Service REDRESS Panel of Mediators; National Employment Mediation Services (NEMS); National Roster of Environmental Conflict Resolution and Consensus Building Professionals, U.S. Institute for Environmental Conflict Resolution.



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