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<xTITLE>Mediators Calling For Climate Change Mediation Provision</xTITLE>

Mediators Calling For Climate Change Mediation Provision

by Kenneth Cloke
November 2009 Kenneth Cloke
November 2, 2009

Mediators Beyond Borders (MBB) is calling on all delegates to include a mediation provision in the climate change treaty.

Currently, the Kyoto Protocol includes negotiation, conciliation, arbitration, and judicial options, but not mediation.

MBB has obtained the signatures of over 35 internationally recognized Mediation organizations and nearly 200 prominent individuals globally recognized for their efforts in mediation. All support remedying the omission of mediation from Article 14 of the Kyoto Protocol that was adopted in 1997 and implemented in 2001 and 2005. [See:].

A discussion of conflict prevention and resolution mechanisms is missing from the COP 15 Provisional Agenda, and the range and power of environmental mediation and similar techniques is not widely understood or agreed to by the parties who will be expected to sign the agreement that will replace the one adopted in Kyoto.

Article 14 of the 1992 UNFCCC negotiated in New York and Rio de Janeiro, which is reaffirmed in Article 19 of the Kyoto Protocol, states: “… in the event of a dispute between any two or more Parties concerning the interpretation or application of the Convention, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.”

However, the International Crisis Group, a nonpartisan conflict analysis advisory organization, has pointed out: “[A] key challenge today is to better understand the relationship between climate change, environmental degradation and conflict and to effectively manage associated risks through appropriate conflict prevention and resolution mechanisms.”

Here is the language Mediators Beyond Borders and other conflict resolution organizations are proposing: “1. (A) Reaffirming the principles set forth in Chapter IV, Articles 33-38 of the UN Charter governing the peaceful settlement of disputes, the parties agree that the parties to any dispute resulting from the interpretation or implementation of this treaty “shall first seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

(B) In the event that efforts to negotiate a solution are unsuccessful, parties are encouraged to use mediation to settle their disputes at all stages, including before, during and after conciliation, arbitration, and actions before the International Court of Justice.

(C.) Mediation shall be conducted in accordance with procedures to be adopted by the Conference of the Parties as soon as practicable, in an annex on mediation.

Mediation as a means of conflict resolution has long history in all world cultures. It has demonstrated that it saves human, fiscal and natural resources; opens paths to innovative solutions that become blocked and calcified when people resort to legalistic means without the opportunity to explore diverse avenues forward that validate the concerns and interests of all parties. Once conflicting parties agree to a mediation process, it is possible to dismantle the barriers and obstacles that have brought their conversations – and progress – to a standstill.

It is clear to experienced conflict resolution professionals everywhere that conflict prevention and resolution mechanisms need to be a core part of the Copenhagen climate change negotiations and an indispensible element in international efforts to implement them afterwards. Without these mechanisms, global solutions will be much more difficult to negotiate and implement effectively, and the time available to us to implement effective solutions is running out.

Studies have quantified the benefits of Mediation. One example (available upon request) described in detail:

Wide magnitude of savings:

Evaluation of waste management disputes from Ontario and Massachusetts estimate, “The magnitude of total cost savings from the use of Mediation ranged from U.S. $100,000 to U.S. $3.5 million

Benefits not restricted to monetary payments:

A study of attorneys’ attitudes concerning Mediation reported that those who participated in Mediation were insistent the positive outcomes were not restricted to monetary payments. Other positive outcomes from the use of Mediation include:

  • perceived fairer allocation of costs
  • win-win solution that benefited all parties
  • agreement as to remedial measures
  • greater understanding of opposing parties' interests
  • resolution of tough technical issues.
  • resolution of long-term liability issues
  • positive corporate-government relations

MBB is seeking to actively engage in conversations with delegates in order to understand their concerns about adopting the suggested language and welcome the opportunity for dialogue.

Contacts: Kenneth Cloke President Mediators Beyond Borders

Spanish / French Michael Schneiderman

English/ French: Marilyn Davison


Kenneth Cloke is Director of the Center for Dispute Resolution and a mediator, arbitrator, consultant and trainer, specializing in resolving complex multi-party conflicts internationally and in designing conflict resolution systems for organizations. Ken is a nationally recognized speaker and leader in the field of conflict resolution, and a published author of many books and journal articles. He was a co-founder of Mediators Beyond Borders.

Ken is a nationally recognized speaker and leader in the field of conflict resolution, and a published author of many journal articles and several books, including Mediation: Revenge and the Magic of Forgiveness, The Crossroads of Conflict, The Dance of Opposites, and Mediating Dangerously: The Fontiers of Conflict Resolution.  His consulting and training practice includes organizational change, leadership, team building and strategic planning. He is a co-author with Joan Goldsmith of Thank God It's Monday! 14 Values We Need to Humanize The Way We Work, Resolving Conflicts at Work: A Complete Guide for Everyone on the Job, Resolving Personal and Organizational Conflict: Stories of Transformation and Forgiveness; The End of Management and the Rise of Organizational Democracy, and The Art of Waking People Up: Cultivating Awareness and Authenticity at Work. His latest book, Journeys into the Heart of Conflict was be published in 2015.

Ken received a B.A. from the University of California; a J.D. from U.C.'s Boalt Law School; a Ph.D. from UCLA; an LLM from UCLA Law School; and has done post-doctoral work at Yale Law School. He is a graduate of the National Judicial College in Reno, Nevada. His university teaching includes law, mediation, history and other social sciences at a number of colleges and universities including Southwestern University School of Law, Southern Methodist University, Pepperdine University School of Law, Antioch University, Occidental College, USC and UCLA.

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