The Associated Press reported on Saturday that “The United States’ top Mideast envoy [former Senator George Mitchell] failed to bridge wide gaps between Israelis and Palestinians as he ended his most intensive attempt yet on Friday, raising questions about President Obama’s efforts to revive peacemaking.”
Whenever we read a discouraging report such as this one, which tells of the failure of a capable and highly respected diplomat from the U.S. to resolve an international conflict, many mediators search for a reason. If we can resolve complex high-stakes lawsuits through mediation, then why can’t our dispute resolution principles and methods be used to settle conflicts among nations?
A better question might be whether our expectations for solutions to such conflicts through mediation are realistic. History teaches us that even when agreements among nations have been worked out, they can subsequently fail because one of the parties cannot be trusted to comply.
The Treaty of Versailles, which ended World War I, merely set the stage for World War II because an embittered Germany was determined to have revenge by taking over all of Europe. Hitler’s agreements not to invade Poland and Czechoslovakia failed because his word could not be trusted. A more recent example is that of North Korea, which agreed during the 1990’s to abandon its nuclear program, only to restart it several years later.
Lester Pearson, who was prime minister of Canada during the 1960’s, was known for saying that diplomacy is the art of letting the other side have your way. His enlightened view was not shared by German historian Karl Von Clausewitz who stated that "War is diplomacy by another means." Dictators, tyrants and terrorists will take as much as they can get through negotiation, and if their ambitions have not been fully satisfied, they will turn to war, or at least to war-like behavior.
So should we really be so disappointed when we fail to make agreements with parties who have ulterior motives or other agendas? After all, an agreement is really worth no more than the trustworthiness of the people who sign it.
Let's never forget the words of Jimmy Carter after Leonid Brezhnev invaded Afghanistan: "I can't believe he lied to me."
MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.