This article was first published by the St. Louis Lawyer (Feb. 2001).
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
(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.
(5) Declaration: The agreement would Israeli Prime Minister Barak These proposals offer a swap on Second, Israelis have a huge The parties also face deadlines
(4)Security: The Palestinian state would agree not to hold heavy weapons. Israel would maintain troops in the Jordan
Valley for only six years.
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.
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).
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.
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.
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?
(5) Declaration: The agreement would
Israeli Prime Minister Barak
These proposals offer a swap on
Second, Israelis have a huge
The parties also face deadlines
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