The translation for the Portuguese version of this article which is to be posted simultaneously was undertaken by David.
Like many people around the world we wish him well in coping with all the strife and disputes in the world with the demands of what must be an extremely difficult job. It is clear from a recent BBC news report that he has a very distinguished political track record that will stand him in good stead. He has reportedly expressed a desire to hopefully address the issue of conflict and his previous efforts in helping to resolve past issues in East Timor have been widely acknowledged.
David recalls that between 1999 and 2002 when he was Prime Minister of Portugal Senhor Guterres gave the cause of mediation a very significant boost. Under his leadership, the then Minister of Justice, Antonio Costa who is currently the Portuguese PM reconstituted the Julgados de Paz on which David currently serves, as a tribunal and mediation body. Senhor Guterres knows a great deal about mediation and when he was PM, he was known to the Portuguese as “Mr. Dialogue”. Following on when he made his first speech as the UN’s SG said that he would be “the mediator”.
Clearly, dispute resolution goes to the very heart of Senhor Guterres’ new role. There will be innumerable territorial disputes and along with civil strife there will be any number of multifaceted trade or commercial disputes involving nation states and trading blocs and global players such as banks, financial institutions and other multinationals. In many instances of commercial dispute obtusely drafted treaty rights may be invoked or relied upon.
The new Secretary-General will have to keep an eye on such fundamental issues as Brexit and at the very least will have to ensure that he maintains the support and confidence of all UN members and delegates, and of course, the members of the UN Security Council, many of whom are very powerful.
How will he tackle these issues? In many conflict situations the UN will engage and work with negotiators and other officials on the ground. Some of these people will act as negotiators as they endeavour to for instance bring about a cease-fire, try to ensure safe conduct for civilians and refugees or monitor elections. Others will be working in a whole variety of scenarios in order to try to bring about lasting settlements and in so doing will probably use mediation as the mechanism of choice. Anecdotally I am aware of the sterling efforts of the international mediation community who are working around the world to very good effect. Not long ago I was given an illuminating and inspiring account of the considerable successes that have been achieved in the former Yugoslavia and indeed it seems that in Kosovo at least, the concept of mediation has been very warmly embraced*.
However, in international circles are arbitration and mediation used sufficiently and are they used effectively? How might Senhor Guterres respond to this question? What might he do during his first year in office to change and improve the status quo? What might he do to change the hearts and minds of influential people in the international community who either vehemently oppose forms of ADR such as mediation and arbitration or disingenuously pay lip service to them?**
Thinking aloud, could he convene an international ADR forum in either New York or Geneva that went beyond speeches and platitudes? Could he approach the incumbent US President and Secretary of State for trade and suggest, even recommend that Federal legislation is enacted so that American antipathy to cost effective commercial arbitration can be ended? Could he applaud the EU for its ADR directive*** and publicly exhort other countries and political blocs to follow suit? In the same way that the World Health Organisation monitors worldwide health provision, could he implement mechanisms so that the justice systems that exist in different countries could be scrutinised and compared?
Closer to home could Senhor Guterres take something from his home country which currently is embracing mediation and further incorporating it into its justice system? Could he even take something from the very effective Mediation Awareness Weeks that have recently taken place in the UK, Portugal and Brazil?
Not all of these suggestions can be easily implemented. However, with the benefit of a modest demonstration of political will on the new UN Secretary-General’s part, a great deal could be done in a relatively short period of time. Improved ADR means improved justice, surely something that the UN is all about!
* See www.cssp-mediation.org/projects/republic-kosovo/
** Compulsory International Mediation or Conciliation Doomed to Fail? ASM blog June 27, 2016 By Ben Beaumont, Associate Civil Mediator and Arbitrator, Albert Square Mediation.
*** DIRECTIVE 2013/11/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2013 and Amending Regulation (EC) – No 2006/2004 and Directive 2009/22/EC
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.