One-Text Mediation Process: Clinton's Christmas 2000 Proposal To The Israelis And Palestinians


by Paula Young

This article was first published by the St. Louis Lawyer (Feb. 2001).

Paula Young

President Clinton, in the final days of his administration, provided a proposal for peace between the Israelis and Palestinians. Clinton has used a negotiating approach called the “one-text process.” It sharply contrasts with the “concession-hunting” process typically used in negotiations between highly polarized parties. In concession-hunting, the mediator engages in a form of shuttle diplomacy or private caucuses. Instead of focussing on the parties’ interests and needs, the mediator allows continued focus on the parties’ positions. The goal is to move the parties’ positions closer to each other step-by-step until, it is hoped, the parties reach agreement. The process often fails because it largely relies on each party “taking--then giving up – a sequence of positions.” Fisher; Ury, Getting to Yes: Negotiating Agreement Without Giving Up (penguin Books 1991) at 4. The process requires a war of wills and a party’s ego often gets identified with his or her position. Id. at 5. A party may fear that any concession will be perceived as a sign of weakness. Ury, Getting Past No: Negotiating Your Way from Confrontation to Cooperation (Bantam Books 1993) at 127.

A position can be defined as a unilateral and sometimes inflexible proposal of one party expressing an acceptable outcome of an issue in dispute. Interests are defined as desires and concerns which motivate people. Interests are the silent movers behind positions. Getting to Yes at 41. Fisher & Ury give the following example to distinguish the two: “Two men [are] quarreling in a library. One wants the window open and the other wants it closed. They bicker back and forth about how much to leave it open.…Enter the librarian. She asks one why he wants the window open: ‘To get some fresh air.’ She asks the other why he wants it closed. ‘To avoid the draft.’ After thinking a minute, she opens wide a window in the next room, bringing in fresh air without a draft.” Id. at 40. “Your position is something you have decided upon. Your interests are what caused you to so decide.” Id. at 41.

When a party is asked to make a concession from its stated position during the concession-hunting process, the party often considers the following analysis: If I say “Yes” I have to decide what to give up. The hardliners in my group will likely criticize me. I won’t be able to take back what I have yielded. No matter what I give, the other party will always want more. I start down a slippery slope of concessions and I don’t know where I will end up. Yet, I will not be blamed for a failure of the process and there is the chance we might move towards agreement. Fisher, Beyond Machiavelli: Tools for Coping with Conflict (Penguin Books 1994) at 127.

If I say “No” I have no problem deciding what to do. I maintain the hardline position and I look tough and true. By sticking to this position I support the reasonableness of my earlier demands. I can wait to see what the other side does. The other side may make a concession. I can always give up something later. However, I may get blamed for the process not working. Id.

The “one-text process” makes the mediator’s proposal more difficult to criticize and more difficult to reject. It designs a new – and easier – series of choices for the parties. The one-text process allows each party to suggest further refinements based on lingering interests and concerns. When the mediator cannot improve the draft further, he presents it as a final draft for approval. The parties know exactly where they are and they can compare the draft to their WATNAs (worst alternative to a negotiated agreement). Id. 128-29.

Now the parties are faced with the following analysis: Shall I criticize this proposal proffered by the mediator? If I say “Yes” to the proposal as a starting point, I lose nothing. I make no concessions and no commitment. Future drafts of the proposal will better reflect my interests. I keep my options open. I can always say “no” later. Id. at 128.

If I say “No” to the mediator’s proposal I look uncooperative and I antagonize the mediator. I miss a chance to push this draft in a direction I would like. I am likely to face a worst draft tomorrow and I may be put under pressure to accept a later draft. I may face a much worst outcome if I do not accept the proposal. Id.

So how might this work in the Middle-east conflict? Here are the elements of the mediator’s proposal:

(1) Sacred Shrines: Arab neighborhoods will be under Palestinian control and Jewish neighborhoods under Israeli control. The sacred sites known to Jews as the Temple Mount and to Muslims as Haram al Sharif would be under a two-tiered control. The Palestinians would have control over the Al Aska Mosque and its compound plus the adjacent Dome of the Rock shrine. The area underneath the Muslim shrines, where the ruins of the ancient Jewish temples are found, would be under Israeli control or recognized as sacred to Jews with no excavations allowed. The Western Wall and adjacent Jewish Quarter would be under Israeli control, but the Christian and Muslim Quarters would be under Palestinian control.

(2) Refugees: Palestinian refugees would be able to return to the Palestinian state, but not to Israel (with some exceptions to allow the unification of families in Israel). Arab states would receive financial aid to fully integrate refugees now within their borders.

(3) Borders: The Palestinian state would be established on 95 percent of the West Bank and 100 percent of the Gaza Strip. Israel would annex Jewish settlements on 5 percent of the West Bank.

(4)Security: The Palestinian state would agree not to hold heavy weapons. Israel would maintain troops in the Jordan Valley for only six years.

(5) Declaration: The agreement would declare the “end of conflict” and each party would relinquish claims against the other party. Greenberg, “Clinton’s Trade-Offs: Ancestral Lands and Sacred Sites,” New York Times (Dec. 29, 2000). One Israeli official described the proposal as an opportunity for Israel to have the “largest Jewish Jerusalem in the history of the Jews.” At the same time, Palestinians end up with a “state of viable size and contiguity.” Id. Yet, the Clinton proposal requires wrenching concessions from both sides right from the start.

Israeli Prime Minister Barak summarized the potential effect of the proposals on the parties: “It is not at all easy for us to accept them. The natural tendency is of course to want to make many changes to them. I believe if Yasir Araft accepts things as they are presented by President Clinton, we are also compelled to accept them.” Perlez, “Clinton Presents a Broad New Plan for Mideast Peace,” New York Times (Dec. 26, 2000). The New York Times described the Clinton proposal as “something close to Israel’s best offer – too good an offer, in the eyes of many Israelis. Part of Mr. Arafat’s quandary is that he probably understands that there is not likely to be a better deal than this one.” Perlez, “Fork in Arafat’s Road,” New York Times (Dec. 29, 2000).

These proposals offer a swap on two key interests of the parties. First, Arafat has made the Temple Mount a symbol of Palestinian national aspirations. The Camp David negotiations in July 2000 broke down when Israelis expressed total opposition to Palestinian sovereignty over the Temple Mount. On the other hand, Israelis fear they will be unable to pray at the West Wall if control of the Temple Mount is given to Palestinians.

Second, Israelis have a huge concern about the return of the Palestinian refugees to Israel. After Israel declared its independence in 1948, some 750,000 Palestinians fled to 23 neighboring Arab states. Now some 4 million people who are mostly second and third generation descendents of the original refugees, their admission to Israel would overwhelm the Jewish state, whose population consists of 5 million Jews and 1 million Israeli Arabs. Palestinians, on the other hand, view U.N. Resolution 194 (III) of 1948 as the expression of international law that gives them the right of return to ancestral lands. They view it as a matter of basic human rights. Ghanna, “Where Will They Go?,” ABA Journal (Dec. 2000); Singer, “No Palestinian ‘Return’ to Israel,” ABA Journal (Jan. 2001) at 14-15.

The parties also face deadlines beyond their control that may preclude the Clinton option in the future. Barak, whose popularity has declined significantly, faces a February 6 election. He could be succeeded by the more conservative Sharon. Barak would like to complete an agreement before the election and use the election as a referendum on his policy. On the other hand, if Sharon wins the election, Arafat may soon be negotiating with a hardliner backed by hardliners. Sharon sparked the current violence by leading a contingent of Jewish officials and armed policemen to the Temple Mount. Finally, Clinton leaves office January 20 and President-elect Bush is unlikely to pursue the same strategy or perhaps even the same policy towards the parties. While the mediator’s “one-text” proposal cannot possibly satisfy all the interests of the parties, Barak and Arafat are likely considering the WATNAs faced by the stakeholders the two leaders represent. What can these parties live with? What potential gains are they willing to die for if they walk away from this proposal?

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Biography




Paula M. Young is an associate professor at the Appalachian School of Law located in Virginia teaching negotiation, certified civil mediation, arbitration, and dispute resolution system design.  She received in 2003 a LL.M. in Dispute Resolution from the top ranked program in the U.S.   She has over 1400 hours of alternative dispute resolution training.  Missouri and Virginia have recognized her as a mediator qualified to handle court-referred cases.



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