Technical ReportPDF Available

Natural Resources and Conflict: A Guide for Mediation Practitioners

February 2015

DOI:10.13140/2.1.2803.0248

Report number: 978-92-807-3433-1
Affiliation: UNEP and DPA

Authors:

David Jensen

United Nations Environment Programme

Josie Lianna Kaye

TrustWorks Global

This guide collects and summarizes good practices on the successful mediation of resource conflicts. It consolidates lessons from decades of hands-on experience at both the local and international levels mediating conflicts over extractive resources, land and water. It draws on the field experiences of DPA’s mediators together with 30 additional mediation experts. It also captures lessons learned from UNEP’s work on environmental diplomacy.

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United Nations Department of Political Affairs

and United Nations Environment Programme

A Guide for Mediation

Practitioners

Natural Resources

and Conflict

About this project

Mediating Natural Resource Conflicts is a collaborative research project undertaken by the Policy and Mediation Division of the United

Nations Department of Political Affairs (DPA/PMD) and the Environmental Cooperation for Peacebuilding initiative of the United

Nations Environment Programme (UNEP). The project has also received support from Columbia University’s Center for International

Conflict Resolution (CICR), the Centre for Humanitarian Dialogue (HD), and the EU-UN Partnership on Land, Natural Resources and

Conflict Prevention.

This guide collects and summarizes good practices on the successful mediation of resource conflicts. It draws on the field experiences

of mediators and mediation experts, specifically those with natural resource expertise. It also features lessons learned from UNEP’s

work on environmental diplomacy in different conflict-affected countries, with a particular focus on how to use impartial technical

knowledge to equalize stakeholder information in a mediation process.

This foundational knowledge was supplemented with the experience and insights of over thirty mediators who participated in an

expert meeting in New York to share their own good practices and lessons learned on mediating natural resource conflicts. The

workshop provided an invaluable opportunity to develop and refine the ideas in this guide, and the development team is grateful for

the active and generous engagement of all participants. The guide was also subject to external peer review, which greatly enhanced

the quality and clarity of the content.

This guide also builds on the conflict prevention research undertaken by the aforementioned EU-UN PartnershipI as well as on the case

studies and innovative practices identified within the global Knowledge Platform on Environmental Peacebuilding.II

The primary audience for this guide is mediation professionals and supporting institutions involved in localized or transboundary

natural resource disputes, or those engaged in peace processes where natural resources play a critical role. However, it may also

be of interest to stakeholders and natural resource management experts involved in disputes over natural resources that might be

considering a mediated solution, ranging from governments and companies to local communities and nongovernmental organizations.

It also contains information that is relevant to experts working on conflict-sensitivity, conflict prevention, and peacebuilding linked to

extractive resources, land, and water.

This guide is being published in two formats. A compact version containing only the core guidance (Part A) and short practical examples

that can be used by mediators as a reference for structuring mediation processes, sharing the methodology with key stakeholders, and

delivering training. In addition, a longer version of the guide includes the core guidance plus nine detailed case studies (Part B) that

demonstrate how different strategies and good practices have been combined in mediation processes. This longer version also contains

a list of resources for additional reading. Together, these case studies and reference materials provide a range of successful approaches

that mediators and stakeholders can draw ideas and inspiration from to inform on-going deliberations.

This guide was made possible through the generous contributions of the governments of Finland and Italy, as well as the support

of the European Union.

Other reports in this series

From Conflict to Peacebuilding: The Role of Natural Resources and the Environment (2009)

Protecting the Environment During Armed Conflict: An Inventory and Analysis of International Law (2009)

Greening the Blue Helmets: Environment and Natural Resources in UN Peacekeeping Operations (2012)

Women and Natural Resources: Unlocking the Peacebuilding Potential (2013)

The Role of Natural Resources in Disarmament, Demobilization and Reintegration (2013)

UNEP promotes

environmentally sound practices

globally and in its own activities. This

publication is printed on recycled paper

using vegetable-based inks and other eco-

friendly practices. Our distribution policy

aims to reduce UNEP’s carbon footprint.

First published in February 2015 by the United Nations Department of Political Affairs

and United Nations Environment Programme

ISBN: 978-92-807-3433-1

Job No.: DEP/1874/GE

United Nations Environment Programme

P.O. Box 30552, Nairobi, KENYA

Tel.: +254 (0)20 762 1234

Fax: +254 (0)20 762 3927

Email: uneppub@unep.org

Web: http://www.unep.org

United Nations Department of Political Affairs

United Nations Secretariat

New York, NY, 10017, USA

Email: peacemaker@un.org

Web: http://peacemaker.un.org

This publication may be reproduced in whole or in part in any form for educational or non-profit purposes without special permission from

the copyright holders provided acknowledgement of the sources is made. No use of this publication may be made for resale or for any other

commercial purpose whatsoever without prior permission in writing from UN DPA and UNEP. The specific technical contributions made by

Alex Grzybowski and Josie Lianna Kaye can be used by their respective companies for commercial purposes and training on the condition

that any related products and services do not use any UN logo or imply any formal UN affiliation or endorsement.

The contents of this volume do not necessarily reflect the views of UN DPA and UNEP, or contributory

organizations. The designations employed and the presentations do not imply the expressions

of any opinion whatsoever on the part of UN DPA and UNEP, or contributory

organizations, concerning the legal status of any country, territory, city or area or its

authority, or concerning the delimitation of its frontiers or boundaries.

Series editors: David Jensen and Silja Halle

Design and layout: Matija Potocnik

Cover image: © Albert Gonzalez Farran, UNAMID,2014

Natural Resources

and Conﬂict

A Guide for

Mediation Practitioners

This report was made possible by the generous contributions

of the governments of Finland and Italy, as well as

the support of the European Union

Table of contents

Foreword ...................................................................................................................................................................5

Acronyms ..................................................................................................................................................................6

Executive summary ..................................................................................................................................................7

Part A: Core guidance

1. Introduction ....................................................................................................................................................... 10

1.1 Purpose, structure, and context .............................................................................................................. 10

1.2 Natural resource conﬂicts ........................................................................................................................ 11

1.3 Mediation issues....................................................................................................................................... 11

1.4 Mediating natural resource conﬂicts ....................................................................................................... 13

2. Guidance for mediation of natural resource conﬂicts .................................................................................... 16

2.1 Assessment phase ................................................................................................................................... 16

2.2 Pre-negotiation preparedness phase ...................................................................................................... 19

2.3 Negotiation phase .................................................................................................................................... 22

2.4 Implementation phase ............................................................................................................................. 26

3. Guidance for mediation in speciﬁc natural resource sectors ........................................................................ 28

3.1 Extractive resources ................................................................................................................................. 28

3.2 Land ........................................................................................................................................................... 35

3.3 Water ......................................................................................................................................................... 40

4. Guidance for mediating natural resource issues in a peace negotiation ..................................................... 46

4.1 Considerations for including natural resources in a peace negotiation ................................................47

4.2 Strategies for mediating natural resources in a peace negotiation ...................................................... 48

5. Conclusion ........................................................................................................................................................ 54

Part B: Case studies

1. Aceh, Indonesia: Oil and natural gas .............................................................................................................. 58

2. Bougainville, Papua New Guinea: The Panguna copper mine ...................................................................... 61

3. Alberta, Canada: Gas ﬂaring framework ......................................................................................................... 64

4. British Columbia, Canada: The Great Bear Rainforest .............................................................................. 67

5. Ecuador and Peru: The transboundary Condor conservation corridor ............................................................ 70

6. India and Pakistan: The Indus Waters Treaty ................................................................................................. 73

7. Iran and Afghanistan: The Sistan basin ...........................................................................................................76

8. Sudan: Oil as a peace incentive during the Sudanese peace process ......................................................... 80

9. Additional reading and guidance ..................................................................................................................... 83

Annexes

1. UN Guidance for effective mediation – A synopsis ........................................................................................ 86

2. Options and resources for mediation support from DPA and UNEP ............................................................. 88

3. Acknowledgments ............................................................................................................................................ 90

4. Notes and references ....................................................................................................................................... 93

Foreword

Jan Eliasson

United Nations Deputy Secretary-General

United Nations Headquarters, New York

February 2015

“Natural Resources and Conflict: A Guide for Mediation

Practitioners”, produced by the Department of Political

Affairs (DPA) and the Environmental Cooperation for

Peacebuilding initiative of the United Nations Environment

Programme (UNEP), is an unprecedented, ambitious and

long-awaited undertaking.

Recent years have seen growing recognition of land and resource disputes as drivers of

conflict and violence. In parallel, peace negotiations have increasingly addressed these

issues directly. Indeed, all major peace agreements since 2005 include provisions on land

and natural resources.

Yet to date, the role mediation can play in peacefully resolving conflicts over natural

resources has not been examined in a systematic way. Furthermore, mediators unfamiliar

with the issues may be tempted to consider them as largely technical, thereby not fully

appreciating their political nature and strategic importance. A challenge, therefore, is

to ensure that mediators are fully equipped to grapple with the many complex issues

involved.

This Guide bridges the gap between the technical and political aspects by providing a

much needed conflict resolution framework for disputes that center on natural resources.

It can be applied in localized or transboundary conflicts, as well as natural resource

disputes that arise in the context of broader peace negotiations. This Guide distills

decades of experience in natural resources dispute resolution into an easy-to-access

format for mediation practitioners. I believe it should also be useful to parties involved

in resource conflicts, in order to help them identify possible paths towards resolution

through mediation and third party involvement.

The United Nations should be proud of this innovative joint effort by its political and

environmental arms. I am certain that the Guide will become a vital reference for

mediation practitioners and for all those who, more broadly, work to end conflict, secure

peace, and build sustainable futures for the citizens of this planet.

Acronyms

ABG . . . . . . . . . . . . . . . . . . . . . .Autonomous Bougainville Government

AWS . . . . . . . . . . . . . . . . . . . . . .Agreement on Wealth Sharing

BCA . . . . . . . . . . . . . . . . . . . . . .Bougainville Copper Agreement

BCL . . . . . . . . . . . . . . . . . . . . . . Bougainville Copper Limited

CAPP . . . . . . . . . . . . . . . . . . . . . Canadian Association of Petroleum Producers

CASA . . . . . . . . . . . . . . . . . . . . .Clean Air Strategic Alliance, Canada

CBM . . . . . . . . . . . . . . . . . . . . . .Confidence-building measures

CICR. . . . . . . . . . . . . . . . . . . . . .Center for International Conflict Resolution, Columbia University

CMC. . . . . . . . . . . . . . . . . . . . . .Contract and Monopolies Commission, Liberia

CPA . . . . . . . . . . . . . . . . . . . . . . Comprehensive peace agreement

DPA/PMD . . . . . . . . . . . . . . . . .United Nations Department of Political Affairs, Policy and Mediation Division

DUAT. . . . . . . . . . . . . . . . . . . . .Direito de Uso e Aproveitamento da Terra (Land Use Rights), Mozambique

EBM . . . . . . . . . . . . . . . . . . . . . .Ecosystem-based management

ECRB . . . . . . . . . . . . . . . . . . . . .Energy Resources Conservation Board, Alberta, Canada

EEZ . . . . . . . . . . . . . . . . . . . . . . .Exclusive Economic Zone

EITI . . . . . . . . . . . . . . . . . . . . . . .Extractive Industries Transparency Initiative

EIVC . . . . . . . . . . . . . . . . . . . . . . Extractive industries value chain

EU . . . . . . . . . . . . . . . . . . . . . . .European Union

FPIC . . . . . . . . . . . . . . . . . . . . . .Free, prior, and informed consent

GAM . . . . . . . . . . . . . . . . . . . . .Gerakan Aceh Merdeka (Free Aceh Movement)

GBR . . . . . . . . . . . . . . . . . . . . . .Great Bear Rainforest

GDP . . . . . . . . . . . . . . . . . . . . . . Gross domestic product

GEF . . . . . . . . . . . . . . . . . . . . . . Global Environment Facility

GIS . . . . . . . . . . . . . . . . . . . . . . . Geographic information systems

GRC . . . . . . . . . . . . . . . . . . . . . .Government Reform Commission, Liberia

HD . . . . . . . . . . . . . . . . . . . . . . . Center for Humanitarian Dialogue

ILO . . . . . . . . . . . . . . . . . . . . . . .International Labour Organization

IWRM. . . . . . . . . . . . . . . . . . . . .Integrated water resources management

JDA . . . . . . . . . . . . . . . . . . . . . .Joint development agreement

JPNCC . . . . . . . . . . . . . . . . . . . .Joint Panguna Negotiation Coordination Committee

MSU . . . . . . . . . . . . . . . . . . . . . .Mediation Support Unit, DPA/PMD

NBI. . . . . . . . . . . . . . . . . . . . . . .Nile Basin Initiative

OMVS . . . . . . . . . . . . . . . . . . . .Organisation pour la Mise en Valeur du fleuve Sénégal (Senegal River Development

Organization), West Africa

PNG . . . . . . . . . . . . . . . . . . . . . . Papua New Guinea

SPLM/A . . . . . . . . . . . . . . . . . . .Sudan People’s Liberation Movement/Army

UNEP . . . . . . . . . . . . . . . . . . . . .United Nations Environment Programme

UN REDD . . . . . . . . . . . . . . . . .United Nations Collaborative Programme on Reducing Emissions from Deforestation

and Forest Degradation

Executive summary

Natural resources such as land, water, timber, minerals,

metals and oil are vitally important sources of livelihoods,

income and influence for countries and communities

around the globe. When natural resources are poorly

managed or inequitably shared, however, or when business

operations are implemented without due consideration for

context and communities, they can contribute to tensions

that can escalate into violent conflict, or feed into and

exacerbate pre-existing conflict dynamics.

Moreover, population growth and environmental

degradation are intensifying competition over already

scarce resources, such as land and water, and climate

change threatens to increase such competition even

further. It comes as no surprise, then, that many experts

and governments expect natural resources to become key

drivers in a growing number of disputes, with potentially

significant consequences for international, regional, and

national peace and security.

In light of these risks, renewed attention needs to

be paid to mechanisms for mitigating and resolving

natural resource disputes. One particularly useful tool

is mediation, which can be defined as a non-adversarial

and collaborative process through which an impartial

third party helps parties in a dispute reach a resolution

through interest-based negotiations. Indeed, mediation

processes – which are voluntary and consensus-based

– tend to lead to resolutions and outcomes that are

longer lasting and more sustainable than adversarial

processes or otherwise imposed outcomes. In conflicts

involving natural resources, sustainable outcomes are

even more desirable because the shared benefits of these

resources often cross tribal, societal, communal, and

national boundaries. Collaboration over their ownership,

management, and use is therefore critical to peace and

stability.

Importantly, natural resource conflicts are often more

amenable to mediation than disputes where ideology

or ethnicity are the main driving factors. Indeed, finding

consensus and building alliances over natural resources

is often easier because natural resources shape economic

incentives that transcend other divides. Mediation over

natural resources can effectively help parties identify ways

to maximize and share benefits, and ultimately unlock

entrenched or zero-sum positions, allowing parties to

develop cooperative and constructive relationships that can

be carried over to other areas. As such, natural resources

can help provide entry-points to other divisive issues.

Despite its promise, mediation has been underutilized

by the international system in addressing disputes over

natural resources, for three main reasons. First, issues in

these conflicts tend to be very technical in nature and, as

such, require that mediators themselves have extensive

technical expertise or have access to it. In many places,

such specialized knowledge is either not available or

not fully trusted by one or more of the parties in the

dispute. Second, the international system still lags behind

in identifying or acting on opportunities for proactive

use of mediation as a tool for conflict prevention and

peacebuilding. Finally, where technical solutions are

available, the political dimension of natural resource

disputes is often overlooked. Yet resource disputes are

inherently political, in that they feed into power disparities

among various players. Accordingly, any comprehensive

attempt at conflict resolution must take into account the

political context of the conflict along with its technical

dimensions.

This guide seeks to addresses these challenges and

demonstrate the value of mediation as an effective tool

for resolving disputes around natural resources. Drawing

from decades of hands-on mediation experience, it

offers practical advice for mediation professionals

and supporting institutions involved in localized or

transboundary natural resource disputes, or those engaged

in peace processes where natural resources play a critical

role. As a starting point, it offers a structured methodology

for mediating natural resource conflicts, which is

divided into four phases: assessment; pre-negotiation

preparedness; negotiation; and, implementation. Against

this framework, the guide also examines sector-specific

challenges that may arise when mediating conflicts

over extractive resources, land, or water, and provides

guidance on intervention strategies for natural resources

in the broader context of peace negotiations. The guide

culminates with seven key messages for improving the

practice of mediating disputes over natural resources:

1. Context is extremely important. Each natural

resource sector addressed in this guide—extractives,

land, and water—generates multiple forms of conflict,

which require different approaches to mediation.

The design of a mediation process should take into

Executive summary

account the characteristics and functionality of the

resource in question, together with mechanisms for

dealing with uncertainty. In all cases, it is essential

to understand the root cause of the conflict, the

interaction of natural resources with other conflict

drivers, the broader political economy, and the

entry-points for a mediated solution.

2. Effective mediation requires a clear but nuanced

mapping of actors and interests. Mediators should

only enter into the interactive phases of the mediation

process once they have become well informed about

the complex network of relationships among natural

resource actors and their interests. The analysis

should consider direct and indirect actors at the

different levels of the conflict dynamic, and should

capture the range of their multifaceted interests.

3. Equal access to impartial scientific and technical

information about the resource in dispute is key.

One of the prerequisites to effective mediation

processes over natural resources is for all parties to

have equal access to impartial scientific and technical

information about the resource in dispute. This can

be jointly generated by the parties themselves or

by an independent third party. The very process

of generating common information can also have

confidence building benefits.

4. Careful attention is needed to identify the

stakeholders that should be engaged in the me-

diation process. Designers of mediation processes

should think carefully about which stakeholders to

involve. Inviting the participation of all stakeholders

may, for example, prove too unwieldy or fragmented

to produce consensus. Understanding which actors

to include in mediation, and the potential political

impacts of including some and excluding others,

is essential. In turn, ensuring consultation with a

sufficiently wide set of stakeholders is crucial to

establish and maintain the legitimacy of the process.

This can be particularly important with groups that

tend to be marginalized, such as indigenous people,

women, or youth.

5. Mediation should aim for collaboration over shared

benefits, which can generate the trust needed to

tackle other issues. Mediators approaching a conflict

over natural resources should try to help parties

move past zero-sum, win-lose positions. Mediators

should try to identify ways that stakeholders can

maximize shared benefits and address common

problems and challenges together. When possible,

natural resources should be treated as a platform for

cooperation that transcends religious, ideological,

political, or tribal differences, as initial cooperation

over natural resources can sometimes be leveraged

to tackle more challenging problems down the line.

6. Mediation techniques are available to overcome

critical impasses and entrenched positions. Once

involved in negotiations, mediators can break down

impasses using a number of techniques: focusing the

talks on technical issues; conducting joint information

gathering; identifying and sharing multiple benefits;

or using scenario-building approaches. Altering

fixed or inflexible default positions can sometimes

be achieved by moving parties away from questions

of natural resource ownership and toward broader

issues of benefit-sharing, predictable access, and

management—areas where opportunities for mutual

benefit can be found.

7. Natural resource issues in peace negotiations are

frequently addressed to lay the foundation for future

reforms, and not necessarily to resolve problems

immediately. Mediators addressing natural resource

conflicts in a peace process should keep in mind

that their objective is not necessarily to resolve the

issue during the negotiation, but often to create an

institutional framework and momentum that can

deal with natural resource issues at a later time. This

can often be achieved by including direct or indirect

provisions on natural resources in the peace agreement.

Alternatively, issues of natural resource governance

can be embedded in a follow-up track to that peace

agreement—for example, through a commission, a

needs assessment, or a peacebuilding plan.

Part A

Core guidance

1. Introduction

Introduction

1.1 Purpose, structure,

and context

Mediation is an underexploited and useful tool that is

often well suited to prevent and manage conflicts linked

to natural resources.

This document offers guidance to mediation profes-

sionals and supporting institutions on good practice

concerning the mediation of natural resource disputes

in the context of conflict, violence, and peacebuilding.

It can also be used by diverse stakeholders and natural

resource management experts considering a mediated

solution to a resource dispute, ranging from governments

and companies to communities and nongovernmental

organizations.1

Specifically, the guide helps to address (1) stand-alone

natural resource disputes or disputes that form part

of a larger political struggle; and, (2) natural resource

disputes set within the context of peace negotiations.

It consolidates lessons from decades of hands-on

experience at both the local and international levels

mediating conflicts over extractive resources, land and

water.2

This guide is divided into two main parts. Part A

includes the core guidance of the report. It begins

with an introductory section that presents concepts

and definitions related to natural resource conflicts,

mediation, and the challenges specific to mediating

natural resource disputes. Section 2 establishes a four-

phase methodology for mediating natural resource

conflicts: assessment, pre-negotiation preparedness,

negotiation, and implementation. Section 3 then

examines sector-specific challenges that may arise when

mediating conflicts over extractive resources, land, or

water. Section 4 looks at natural resources in the broader

context of peace negotiations and provides guidance on

intervention strategies. The final section offers some

concluding messages and strategies to improve the

practice of mediating disputes over natural resources.

Practical examples are included throughout the text to

illustrate selected strategies and good practices.3

Part B of the guide includes eight case studies that

demonstrate how different strategies and good practices

have been combined in mediation processes. Each case

study presents the key conflict context, the highlights

of the mediation process, an overview of the final

agreement, and the key implementation challenges.

Part B also contains a list of resources for additional

reading. Together, these case studies and reference

materials provide examples of successful approaches

that mediators and stakeholders can draw upon to

inform new or ongoing mediation processes.

This guide builds on a growing recognition of the

important linkages between natural resources, conflict,

and peacebuilding by the United Nations (UN) and other

international actors. Reviewing a decade of academic

research and UN experience, the UN Environment

Programme (UNEP) has found that 40–60 percent of

civil wars over the past sixty years have been associated

with natural resources, and that at least 18 violent

conflicts since 1990 have been fuelled or financed by

their exploitation.4

The Secretary-General’s 2010 report, ‘Peacebuilding

in the Immediate Aftermath of Conflict,’ identified the

need to increase national capacity in natural resource

management, calling upon Member States and the

UN “to make questions of natural resource allocation,

ownership and access an integral part of peacebuilding

strategies.”5 The Secretary-General also requested the

international community to do “more to prevent conflicts

over natural resources and maximize their benefits for

maintaining and building peace,” and insisted that “the

resource curse must no longer be allowed to undermine

the security of fragile and conflict-affected states and the

foundations of sustainable development.”6

In the field of mediation, the Secretary-General has

noted several key aspects of dealing with today’s

complex conflicts:

Mediators have to grapple with a wider range

of substantive issues. In contrast to the mostly

ideologically based conflicts of the 1970s and

1980s, conflicts over the control of government, as

well as natural and economic resources, dominate

the present agenda. These disputes are overlaid with

ethnic polarization, socioeconomic tensions and

poor governance, and are exacerbated by climate

change.7

1. Introduction

1.2 Natural resource

conﬂicts

The term ‘natural resources’ refers to oil, minerals,

forests, water, and fertile land that occur in nature and

can be exploited for economic gain. These resources

frequently represent an important source of income and

power; land, in particular, is essential to the livelihoods

of millions of people. When poorly managed, distributed

or controlled in an unfair or unequal manner, natural

resources can also be a major driver of conflict or

instability. The features of natural resource conflicts

most relevant to mediation practitioners are highlighted

below.

1.2.1 Categorizing resource conﬂicts

Resource conflicts are typically categorized according to

the primary resource involved and to the main conflict

driver. Typical resource categories include extractive

resources (e.g., hydrocarbons, minerals, gemstones, and

timber),8 land, and water. Of course, many conflicts involve

the interplay of more than one type of resource. Indeed,

in the majority of cases, one or more of the following

drivers are at play: (1) conflict over resource ownership;

(2) conflict over resource access; (3) conflict over decision

making associated with resource management; and (4)

conflict over distribution of resource revenues as well as

other benefits and burdens.9

1.2.2 Unique characteristics of natural

resource conﬂicts

A number of characteristics associated with natural

resource conflicts contribute to their complexity and,

in turn, influence approaches to their resolution. The

scarcity or abundance of a specific natural resource

fundamentally influences the conflict dynamics at play

and the mediation opportunities available. In addition,

one or more of the following characteristics may

influence the dynamics of a resource conflict:

 Many resources are influenced by a range of

natural and social factors leading to a high level

of complexity and uncertainty in their availability,

quality, and value.

 Natural resources that are embedded in global supply

chains are subject to high levels of price volatility

that can have destabilizing effects or lead to sudden

shifts in investment strategies and opportunities.

 Resources involved in disputes are often ascribed

with highly sensitive historic and symbolic values

that may be linked to national or group identity, or

to a specific livelihood.

 Natural resource conflicts often occur at different

scales or levels in ways that interconnect at local,

regional, national, transboundary, or international

levels.

 Resource disputes often involve uneven geographic

patterns of resource distribution that can be

particularly salient when they occur along ethnic,

religious, or linguistic lines.

 Tensions between competing livelihood groups

over scarce natural resources often occur in

seasonal cycles, which can escalate into violent

outcomes following sudden shocks or stresses to

the system.

 Natural resources can play a number of different

roles in the generation and escalation of tensions

between stakeholders, ranging from triggering and

intensifying conflicts to prolonging them.

 Resource conflicts can involve a wide range of

actors and stakeholders, including nation-states,

local governments, ethnic groups, communities,

civil society organizations, and private companies.

 Natural resources frequently play a key role in the

broader political economy, often reinforcing the

power of elite actors.

 Resource disputes are sometimes associated with

significant power imbalances and asymmetries

between the parties (e.g., international corporations

versus local communities, or lack of formal

representation of a specific livelihood group in a

decision making process).

 In many situations natural resources are governed

by a combination of customary and statutory

institutions, or hybrid political orders.

Approaches for dealing with these characteristics are

addressed in relevant sections of the guide.

1.3 Mediation issues

One definition used by the UN describes mediation as “a

process whereby a third party assists two or more parties,

with their consent, to prevent, manage or resolve a

conflict by helping them to develop mutually acceptable

agreements.”10 This section highlights mediation issues

specifically relevant to resource conflicts.

Interested readers can look to other sources for a general

introduction to key concepts and principles of mediation

and what is known as ‘interest-based negotiation’.11

Simply put, interest-based negotiation is an approach

that advocates for focusing on interests (needs that can

be met) rather than positions (distinct points of view

which often constitute a pre-determined outcome). By

focusing on interests, the disputing parties can more

easily move beyond zero-sum options to options for

mutual gain. For mediation in the international context,

the UN Guidance for Effective Mediation is a useful and

succinct reference that presents a series of fundamental

issues for consideration.12 (Annex 1 contains a summary

of the Guidance).

1. Introduction

Mediation takes place in a wide range of contexts,

conflict dynamics, procedural settings, and cultures.

There is no single way to approach mediation. Each

situation requires a tailored approach as outlined in the

following sections.

Some of the key considerations when mediating a

conflict are as follows:13

Mediator roles: Mediator roles are based largely on

the type of relationship between the mediator and

the parties to the conflict; it is possible to identify at

least three different types of mediator roles: insider

mediators; authoritative mediators; and independent

mediators. Each of these roles are relevant to natural

resource mediation, and a given engagement process

may involve differing aspects of each of these roles at

different moments during the process:

 Insider mediators are well-respected individuals

with close community affiliations whom the parties

already know, or know of. Their legitimacy is based

on their respected status and their impartiality to the

process, and sometimes the issues, as well as their

reputation as trustworthy and fair individuals. They

may be a community leader, a religious figure or

other honorable member of the community. They

leverage insider knowledge and understanding of

community, cultural and interpersonal dynamics

to help reach and enforce resolutions. They

tend to prioritize the stability and durability of

community and interpersonal relations as important

aspects of any agreement, and often have a role in

implementation.

 Authoritative mediators have some kind of

relationship of authority vis-a-vis the parties. This

authority may be used to influence or determine

parameters of the procedures, the substantive

content of the resolution or aspects of enforcement.

This is a wide-ranging category with sub-types such

as: mediators with authority based on reputation,

status and/or position; and mediators with authority

based on occupying a superior position in an

administrative or managerial structure. Authoritative

mediators may be impartial with regards to the result

or they may have an established interest regarding

certain aspects of the resolution.

 Independent mediators are characterized as an

impartial ‘third party’ who has no affiliation to the

actors to the dispute prior to engagement in the

process. Through mutual agreement, the parties

accept and engage the mediator whose role is to

help them through a voluntary process that aims to

reach a resolution that is mutually acceptable.

Mediator directiveness: Mediation styles can be

described as ranging along a spectrum of “directiveness”

in the dispute resolution process, irrespective of the kind

of mediator role involved. At one end of the spectrum,

the mediator can be very directive regarding both the

substance and the process. They tend to prescribe

solutions and orient the process towards particular

outcomes. Directive mediators tend to be more engaged

in discussions around substance and may express their

opinions on certain matters or propose solutions to the

parties. At the other end of the spectrum, a facilitative

mediation style is non-directive and focuses on helping

the parties decide objectives and solutions for themselves.

These mediators tend to avoid touching upon substance

and, instead, provide primarily procedural assistance,

which may also seek to help strengthen or establish

relations between the parties. Given the fluid dynamic

of natural resource disputes, a mediator may ebb and

flow along this spectrum depending on context and

dynamic.

Mediator focus: Mediators vary on the degree of focus

given to the substantive, procedural, and psychological

aspects of the dispute. A substantive focus deals heavily

with the interests of the parties, helping them assess

their case, evaluate their proposals, identify criteria

for consideration or even recommend the contents

of an agreement. A procedural focus concerns the

process-related aspects of the mediation, such as issues

around communications, timing, sequencing or the

administrative elements at play. A psychological focus

prioritizes the relationship and trust between the parties.

A given mediation process on natural resources will

shift the focus as needed based on the dynamics of the

negotiation.

Mediator functions: The functions of a mediator in

a given process will be influenced by many factors,

including the kinds of issues discussed above and the

dynamics and context of a given dispute. In particular,

a mediator may convene and facilitate meetings in a

safe and impartial space; encourage participation by

relevant stakeholders; assist the parties in mediation and

joint problem-solving; provide access to objective and

impartial analysis; build capacity to reduce technical or

negotiating asymmetries; monitor the implementation

of agreements; ensure coherence between related

interventions; help resolve implementation disputes;

and catalyze sustained political and financial support.

Individual or institutional entity as mediator: A

mediator may be an individual or, alternatively, a group

or institution such as the UN or another organization

that specializes in mediation.14 When the mediator is an

individual, a person with some degree of gravitas may

be appropriate.15 In turn, a country can also play the

mediator role.16

Mediator entry into the process: How a mediator enters

a dispute can have an important impact on the process;

there are few key ways that a mediator may enter the

dispute:17 contact with the mediator is initiated directly

by one or more of the parties; a secondary party refers

the mediator to the parties; a mediator initiates the

intervention directly; or the mediator is appointed by

a formal authority of some kind. In complex disputes,

a range of questions influence how entry takes place:

Will the mediator be an individual or institutional

1. Introduction

entity? What kind of mediator roles are most needed?

Is the impetus for mediation driven by local, national,

or international pressures? Should a sole mediator or a

mediation team be involved?

Irrespective of the means of entry, a mediator has

to accomplish certain tasks relatively quickly: build

credibility (personally, institutionally, and for the

process); build rapport with the parties; educate the key

actors about the mediation process; and get an agreement

or mandate to begin mediation. Timing of a mediation

intervention is also very important (i.e. determining the

“ripeness” of the dispute).18 This is a critical issue that

depends on the specifics of the conflict in question.

Some practitioners believe that early intervention has

the advantages of alleviating polarization on issues,

avoiding unnecessary hostility and emotional damage

between the parties, and preventing energy-draining

conflict escalation. Other practitioners argue that later

interventions can also be beneficial, as the parties may

see their options more clearly and be more inclined to

negotiate after having tested their coercive power or

expressed their frustration. Timing of entry depends on

the nature of the conflict and should be assessed on a

case-by-case basis.

Mediator expertise on natural resource issues: Broadly

speaking, there are two options for selecting mediators

for natural resource disputes. One involves appointing

a mediator with limited knowledge of natural resources

while relying on a technical support team of natural

resource specialists. The other involves a mediator

with solid technical background on natural resource-

related issues, perhaps supported by other mediators.

Determining the mediator(s) and other support experts

required for a mediation process is tied directly to the

complexity of the dispute as well as the objectives of the

mediation and the needs of the parties.

Mentors, conveners, and sponsors: Complex resource

disputes involve three sets of supporting actors: mentors,

conveners and sponsors. Mentors are those who typically

decide to launch the mediation initiative. They tend to

appoint a convener and/or a mediator. The convener is

the person or institution who invites the participants to

the negotiation. The convener should bring legitimacy

and an ability to enable the parties to take ownership

of the process. Sponsors typically finance the initiative

and may be international donors, governments, or UN

agencies.

1.4 Mediating natural

resource conﬂicts

There are unique aspects of mediating natural resource

conflicts that require additional considerations by the

mediator.

Power asymmetries: These are a common and especially

challenging feature in natural resource disputes. The

power imbalances can be significant. First, a basic

principle of interest-based negotiation is that all parties

should get more from a negotiation than they are able to

achieve without negotiating. In other words, they should

only come to a resolution through mediation if they can

achieve more than their best alternative to a negotiated

agreement (BATNA). With this general principle in mind,

section 2 below offers specific ideas and techniques to

address power asymmetries in relation to some of the

phases of a mediation process. Second, it is important to

note that significant power asymmetries may mean that

mediation is not the most appropriate tool to resolve a

conflict (see section 1.4.1 on suitability and limitations

of mediation for natural resource conflicts).

Multiple-level mediation tracks and integrated

approaches: Natural resource disputes often involve

dynamics and actors at more than one level. One

framework for multiple-level engagement commonly

used by the UN Department of Political Affairs describes

different mediation tracks as follows:19 Track I entails

formal processes of interaction among the leadership

of the parties in conflict or their representatives; Track

1.5 refers to informal interaction among these same

leaders and officials; Track II covers interactions among

non-governmental actors; and Track III encompasses

interaction among grassroots actors. A multiple-level

engagement or mediation strategy for natural resources

may be appropriate, targeting actors at different levels

and often involving mediators and facilitators at different

levels. The processes should be complementary

and preferably integrated. Issues concerning what

is addressed by whom and in what manner are very

important. Attention to timing and sequencing of the

activities at the different levels is critical and can have

significant strategic impact. A mediation process to

reach agreement with a limited number of parties may

be complemented by other peacebuilding tools with a

broader range of actors at other levels. For example, a

broader consultation or dialogue process with a wider

range of stakeholders can complement a mediated

negotiation process (see section 1.4.2 below on

mediation alongside other peacebuilding tools).

Stakeholder engagement in natural resource mediation

processes: One of the difficult questions faced by

a mediator is whether and how to involve different

stakeholders – either directly or indirectly – in the

mediation process. While every mediation process will

involve a unique mix of stakeholders, strategies for

engaging different stakeholders should be considered.

Stakeholders clearly include the resource users (i.e.

the range of actors using a given resource, whether

communities involved in direct extraction, companies or

some other users). Other stakeholders include regulators

(e.g., national and local government actors), beneficiaries

(downstream buyers, consumers, illegal or illicit users),

and impacted groups (those that experience a net loss

from extraction activities).

Inviting the participation of all stakeholders might at first

seem to be the most sensible policy to achieve ownership

and long-lasting success. However, processes involving

1. Introduction

too many stakeholders can become unwieldy or may be

too fragmented to produce consensus. Understanding

which actors to include in a mediation process, and the

potential political impacts of including some and excluding

others, is essential. In turn, ensuring consultation with a

sufficiently wide set of stakeholders is crucial to establish

and maintain the legitimacy of the process, and vital to

its success. When certain stakeholders are not directly

involved in the mediation process itself, they can be

involved in a broader process of dialogue (see section

1.4.2 below on mediation alongside other peacebuilding

tools).

Uniquely vulnerable stakeholders: Experience shows

that certain categories of stakeholders warrant special

attention in mediating resource conflicts because they

face specific vulnerabilities linked to natural resource

exploitation. In particular, certain stakeholders are

not traditionally included in decision making, or can

represent relevant interests in the talks that would

otherwise be marginalized. For example, stakeholder

characteristics such as gender, ethnic affiliation,

and socio-economic status may influence resource

ownership or access as well as opportunities to

meaningfully participate in decision making processes.

In some parts of the world, indigenous peoples as well as

migratory pastoral communities are disproportionately

affected by resource disputes given their historical and

cultural connection to the land and its resources, and

the associated customary rights they often claim or

defend. Specific reference to these vulnerable groups

will appear in different sections of this guide.

Natural resources in fragile states: Natural resources in

conflict-affected and fragile states often act as powerful

drivers of conflict for four main reasons. First, such

states generally have weak governance institutions

and limited capacities for conflict management and

dispute resolution. Second, conflict-affected and fragile

states typically have inequitable and non-transparent

distribution of resource revenues and benefits. Third,

civil society actors in these countries are usually

constrained in their ability to demand efficiency,

accountability, and transparency in the governance and

management of natural resources. And finally, fragile

and conflict-affected states are often characterized by the

presence of armed groups, non-state actors, or criminal

networks that have a strategic interest in maintaining

instability in order to profit from illegal exploitation and

trade of natural resources. Taken together, these factors

can significantly influence the successful initiation and

outcome of a mediation process.

1.4.1 Suitability and limitations of

mediation for natural resource

conﬂicts

Using mediation as an effective tool requires an ability to

adapt it to the specificity of natural resource conflicts on the

one hand, and a deep understanding of its limitations on the

other. When applied to disputes not suited to a negotiated

settlement, the intervention is likely to fail, resulting in a

deterioration of the conflict and a potential loss of legitimacy

for those involved in the mediation process.

The degree to which mediation is appropriate to address

a specific complex resource conflict is grounded in the

nature of the dispute resolution technique, and how this

relates in turn to the context in question. Mediation can

be particularly useful to transform fixed positioning and

help unlock zero-sum positions; similarly, mediation

approaches can help maximize mutual benefits and

reframe conflict to allow greater opportunities for

collaboration and building constructive relations across

community, ethnic, national, or regional divides. In

this regard, economic incentives and multiple benefits

associated with resource use are important features of

resource conflicts suited to mediation. Flexible mediation

processes can also be very useful when dealing with

relationship issues and complex political dynamics.

Furthermore, mediation offers many techniques

and approaches to deal with complex technical and

scientific information common to resource disputes.

Mediation can complement other peacebuilding tools

(e.g. dialogue) and should not be seen as the only tool in

the toolkit when facing complex resource disputes.

However, important factors can limit the extent to

which mediation is an appropriate tool to use for

natural resource conflicts. First, win-win solutions are

not always possible, especially in situations of absolute

resource scarcity or incompatible land use. Certain

disputes are intractable by nature, especially when some

parties refuse to enter into negotiation, or when the

differences between core values cannot be reconciled.

Second, mediation is a more limited tool when major

power imbalances exist between the parties. Similarly,

for natural resources that are embedded in global (or at

least external) supply chains, the parties to a mediation

process may be unable to control key parameters

such as market value and demand. In such cases, the

potential impact of such uncertainty and price volatility

on the mediation process needs to be considered.

Third, mediation is of limited use when the conflict is

characterized by protracted or deep-rooted structural

issues that can only be addressed through legal,

economic, political, or social reforms. In other words,

mediation is not intended to fundamentally transform

unequal or unjust power relations or social structures,

although in the context of broader mediation processes,

such as peace agreements, it can establish a starting

point for more suitable mechanisms (see section 1.4.2

below on meditation alongside other peacebuilding

tools).

Factoring the suitability and limitations of mediation

together, experience shows that mediation tends to be

particularly effective in addressing resource conflicts

that involve unsustainable resource use, conflicting

demands over resource use, or the sharing of revenues

and benefits. Mediation is notably less effective in

addressing those aspects of a dispute grounded in

1. Introduction

structural inequalities or different identities and cultural

values; however, in these situations, mediation over

natural resources can prove to be an entry-point to

addressing broader conflict drivers as part of a more

comprehensive peace agreement.

1.4.2 Mediation alongside other

peacebuilding tools

When considering complex resource disputes, medi-

ation should be seen alongside and as complementary to

other peacebuilding tools. A resource mediation process

will frequently require engagement at different levels or

with different groups of actors beyond the immediate

parties to the dispute. Accordingly, other peacebuilding

tools will be needed. In the case of natural resources in

the context of broader peace negotiations, the multiple

processes will inevitably involve a range of different

tools (see Section 4).

While the list of peacebuilding tools and interventions

can be long and definitions can be subject to debate,

this guide underscores the fundamental importance of

seeing mediation as one tool in a toolkit of processes

and approaches. Accordingly, mediation should be used

alongside tools such as conflict prevention, preventive

diplomacy, facilitation of dialogue, consensus-building,

and peacebuilding.

Dialogue is a term or tool frequently used within the UN

and by other international actors. It can be thought of as

a “process of people coming together to build mutual

understanding and trust across their differences, and

to create positive outcomes through conversation.”20

As such, dialogue easily complements mediation

with regards to resource disputes, or it can be used if

mediation is not the best tool. In particular, dialogue

can complement mediation by: addressing levels of the

conflict not suited to mediation; connecting different

levels of the conflict to the mediation; and, extending

the reach and impact of the mediation through wider

participation of stakeholders to generate broader buy-

in. Dialogue may be used to achieve a range of

outcomes that are constructive even though they do not

resolve the dispute. These outcomes include building

or strengthening mutual trust and understanding across

differences; expanding public participation around

relevant issues; analyzing a problem or context jointly;

developing a shared agenda of action; and/or developing

conflict-sensitive programming with broad buy-in.

2. Guidance for mediation of natural resource conﬂicts

Guidance for mediation

of natural resource conﬂicts

This guide adopts a four-phased framework reflecting

the UN’s mediation practices and UNEP’s approach to

providing environmental diplomacy support (see annex 2).21

This section provides a description of those four phases of

the mediation process and provides guidance for each. The

four phases are: assessment, pre-negotiation preparedness,

negotiation, and implementation. It provides a framework

for mediation professionals and their supporting institutions

facing a resource conflict, irrespective of the natural resource

sector involved. It will also be relevant to stakeholders that

are considering a mediated solution to a natural resource

dispute, who are seeking a basic understanding on the four

main steps and requirements.

2.1 Assessment phase

The first phase of the mediation process is an assessment

of all aspects of the conflict dynamic in order to determine

whether a mediated approach is appropriate and likely to

result in an agreement. Depending on the context, it may

be conducted by a mediation support institution rather than

by a mediator per se. Various conflict assessment tools have

been developed to help mediators assess the context.22 At

a minimum, this step involves an understanding of: what

the conflict is about; who the actors are; what the larger

context is; and where the sources of power and leverage

lie. The assessment should first establish whether suitable

conditions exist for mediation. During the assessment,

the mediation support institution also begins thinking

about how the mediation process needs to be designed to

maximize the chances of success, as well as the individual

profile of a potential mediator.

The types of general issues considered in an assessment

include:

 The issues in contention;

 The parties, their interests, their interconnections,

and their capacity to engage;

 The status and condition of the relevant governance

frameworks, including those for dispute resolution;

 The political, socioeconomic, and environmental

context;

 Potential entry-points to start the mediation

process;

 Possible elements of process design from each

party’s perspective.

An assessment typically involves a mix of desk research

and fieldwork, often grounded in direct engagement

with stakeholders. Direct engagement with a range of

stakeholders is essential to ensure a clear and accurate

understanding of the conflict, as well as to garner

sufficient ownership and buy-in for the mediation

process that is expected to follow. Those undertaking

the assessment must engage with a range of actors,

including top officials, government administrators, civil

society and community representatives, private sector

actors, individuals knowledgeable about the conflict,

relevant technical experts, and those whose voices

are usually not heard (e.g. marginalized populations,

youth, armed groups, etc.). The methodologies for data

collection and analysis will vary based on context and

whether the mediation support institution has been

formally asked to engage in the process, or is simply

assessing the feasibly of the context prior to offering its

mediation support. The key steps and good practices

that should be undertaken during the assessment phase

to address these issues are suggested below.

Assess natural resources, governance, political

economy, and conflict dynamics: The assessment

should gather information about the type, quantity,

quality, and location of the natural resources that are

involved in the dispute. The assessment should map

these resources, and try to understand the benefits

that arise from them, the livelihoods that depend upon

them, the negative impacts from their exploitation, and

the political economy they support. It is also important

to assess if the conflict is (partly) driven by confused,

conflicting, or inconsistent information held by the

different parties, or perceived unmet expectations and

broken promises. It may also be useful to understand the

supply-and-demand trends for those resources, as well

as any related shocks and stresses from climate change,

natural hazards, or natural variability.

The assessment should also gauge how effectively natu-

ral resources are governed and whether the governance

structure is a source of conflict among stakeholders.

There are several dimensions to consider: the legal

and policy dimensions of current natural resource

management; statutory and customary mechanisms

for managing resources and resolving disputes;

specific statutory provisions regarding benefit-sharing,

transparency, and accountability safeguards; public

2.1 Assessment phase

The Comprehensive Peace Accord, signed in November 2006, put an end to the ten years of violence in Nepal between the

government and the Maoist insurgency (the Uniﬁed Communist Party of Nepal). During the assessment phase leading up to

the formal peace mediation process, international facilitators conducted an informal participatory analysis with key stakeholders

to map the root causes of the conﬂict, which included inequitable land access and discriminatory decision making over natural

resources. This analysis was undertaken as an initial step in the process, and the ﬁndings informed many aspects of the mediation

process thereafter, particularly the manner in which land and natural resource issues were addressed.

Source: Expert meeting on mediating natural resource conﬂicts.

In practice: Assessing natural resources and conﬂict dynamics

for the Comprehensive Peace Accord in Nepal

Root causes of the conﬂict in Nepal included problems of differential land access and decision making over natural resources

2.1 Assessment phase

participation in decision making; and, environmental

protection and compensation provisions. Participatory

approaches in the assessment phase can set the stage

for a more inclusive and nuanced understanding of the

drivers and causes of conflict, which can then inform

the mediation approach.

Analyze the natural resource stakeholders, including

their capacities, positions, interests, and relationships:

The assessment should include a stakeholder analysis

that involves a clear and nuanced mapping of actors,

their positions, and their interests with respect to natural

resources. The analysis must capture the range of actors

and institutions at all relevant strata, recognizing the

multileveled nature of many resource disputes, and

the fact that such disputes – and therefore stakeholder

positions – evolve over time. Participatory stakeholder

mapping using focus groups can be a helpful tool.

Stakeholder capacity to engage in a mediation process

should be evaluated in order to identify areas where

capacity-building could prove instrumental later in

the process. In particular, proactive consultations

should be conducted with women and women’s

organizations to ensure their input and concerns are

specifically documented, given that their voices are often

marginalized. When indigenous and traditional societies

are involved, their particular history and dynamic with

regard to the resource and territory involved should be

noted. Inter- and intra group dynamics within traditional

societies that may be pertinent to the conflict should be

noted.

Identify mediation entry-points: Opportunities and

entry-points for initiating a mediation process should be

identified and prioritized based on the dimensions of

the conflict and the likelihood that the parties will be

able to negotiate the issues through a mediated process.

Consideration must be given to the kind of mediator

role, style, and profile that would be most effective

for possible entry-points. It is equally important to

identify if there are any particular individuals, groups,

or institutions that carry strong legitimacy in the eyes of

key actors, and whether they can be used as an initial

entry-point to kick-start the mediation process. It is also

important to understand the history of any previous

attempts to address the dispute and see if these offer

lessons on what should be followed or avoided. Clarity

is also needed on how different government agencies

could provide entry-points and support, or potentially

hinder, the process.

Consider options for design of the mediation process:

It is essential to determine the pre-conditions that

must be met to ensure the mediation process is locally

owned and deemed to be legitimate in the eyes of key

stakeholders. It is crucial to identify which actors must

be engaged in the mediation, and to assess the political

impact of including some and excluding others. Given

the nature of resource disputes, it is important to

consider whether a multi-level or multi-track process

is needed, including the establishment of broader

consultation and dialogue processes. At the same time,

any other significant ongoing or planned processes

that could influence the interests of the parties should

be identified. These would include local or regional

dialogues, legal reforms, judicial outcomes, award of

concession contracts, and national planning or zoning

processes. The mediation process design may need to

establish formal or informal links to these initiatives, or

build on their outcomes.

Decide on the feasibility of a mediation process and

determine conditions for formal engagement: In

addition to understanding the technical dimensions of

the resource dispute and the interests of stakeholders,

the key outcome of the assessment phase is to identify

the minimum required conditions to advance to the

next phase of the mediation process. This involves

understanding the level of support and perceptions

of legitimacy the parties express towards a mediation

process. It also combines an internal analysis of the

political risks, costs and benefits of engagement and

the potential outcomes by the different parties together

with ways to navigate existing power imbalances.

These range from capacity-building on mediation skills

and the use of technical information, to other creative

approaches that can diminish power asymmetries. For

example, a group that may be weak might enhance its

power and influence by either joining a larger coalition

of actors, interconnecting their interests with those of

other stakeholders, or reframing their interests. These

dynamics will inform any decision to proceed with the

mediation, re-design it or make it conditional upon an

agreed set of ground rules. The main outcome of this

phase is that the identified parties give a formal mandate

to the mediator or mediation support institution to

proceed to the next phase.

2.2 Pre-negotiation preparedness phase

2.2 Pre-negotiation

preparedness phase

The pre-negotiation preparedness phase lays the

foundation for negotiations and is focused on

establishing the best possible conditions for a suc-

cessful mediation. The issues addressed in this phase

usually relate to procedural matters about who should

be involved, the timing and location of negotiations, the

structure of negotiations, and the items on the agenda.

Clear agreement on the design of the process usually

translates into greater commitment by all parties to the

mediation itself. Common issues to address in this phase

include:

 Goals and objectives of the negotiation;

 Scope of the negotiation and key principles;

 Parties in the negotiation and issues around their

representation;

 Mediator(s) and other technical support that will be

required;

 Process methods and modalities to be used;

 Work plan, sequencing, logistics, and location;

 Capacity-building;

 Mediation process design.

Some of the key steps and good practices that should

be undertaken by a mediator or mediation support

institution during the pre-negotiation preparedness

phase are described below.

Define the goals and objectives of the negotiation: To

prepare for and design a negotiation, the various short-

term objectives or long-term goals must be clear. While

these may evolve over time, the parties should at least start

with a clear view on what the process intends to achieve.

Objectives may include creating a safe space or building a

relationship among the stakeholders, or proposing solutions

to a problem. The longer-term goal may be to achieve a

legally binding final decision on an issue. Objectives may

require linking the negotiation to other conflict prevention

tools such as broader processes of dialogue to ensure an

adequate flow of information or buy-in within a broader

spectrum of society beyond the negotiation table. In any

event, it is essential to know how the mediation process

will lead to a decision and appropriate follow-up action.

Establish the scope of the negotiation and key princip-

les: The pre-negotiation phase determines the breadth

of issues that will be addressed in the mediation and

any principles the parties may agree on in order to

guide the process forward (see annex 1, a synopsis of

the UN Guidance for Effective Mediation). Common

issues to address include management authority; public

participation in decision making; free, prior, and informed

consent; equitable benefits-sharing; land ownership and

tenure; resource access and rights; population resettlement

or displacement; access to justice and dispute resolution;

illegal and illicit resource exploitation; and compensation

for environmental damage or lost livelihoods.

Determine parties and their representation in the

negotiation: Based on the stakeholder analysis in

assessment phase, a key issue is to determine the parties

to the negotiation, how they should be represented, and

what other actors should be informed or engaged. This

requires identifying who should be in the negotiation

and who should be excluded.

There are many categories of people to consider for

either direct engagement or consultation: resource users

(communities, companies, etc.); resource regulators

(governments, whether local or national, or others who

set the rules); beneficiaries of the resource (those who

get or buy the resource once exploited, whether legally

or illegally); and other stakeholders who face the negative

impact of the resource’s exploitation. It is important to think

through who is truly essential for the negotiation, factoring

in considerations about potential spoilers and how they

can be handled. Casting the net too wide can result in an

unwieldy process that becomes difficult or impossible to

conclude, but excluding key groups may result in a process

being seen as illegitimate, or being derailed by groups

who feel they deserve a seat at the table.

Another fundamental issue to address is whether mecha-

nisms are in place to ensure that representatives can take

decisions on behalf of the parties they represent. Furthermore,

the mediator should consider if consultation and validation

procedures will be used between representatives and

their constituencies. Particular care is needed in regards

to indigenous and traditional communities, where issues

of representation can be challenging. Special procedures

may be useful to ensure that representatives communicate

regularly with civil society organizations and local

communities. In establishing the mediation process design,

it is imperative to consider how gender roles, socio-

economic status, and ethnicity may influence men and

women’s relationship with natural resources and whether

these concerns are being adequately reflected.23

Assess options for the mediator and other support:

Determination of the mediator(s) and other support required

for a mediation process is tied directly to the possible

entry-points as well as the complexity and objectives of the

mediation. The mediator, whether an individual or a team,

must have the requisite skills and legitimacy to manage the

many dimensions of mediation. A team can sometimes be

useful in balancing different mediator roles, bringing a range

of technical skills to the table, or bolstering perceptions

of legitimacy. A balance of insider and independent

mediators may be needed. Moreover, a mediation team

may be needed when a dispute is expressed at multiple

levels and multi-track processes are required.

The combination of mediator and support expertise must

also anticipate linking mediation to other peacebuilding

tools (see section 1.4.2 on dialogue). Technical and legal

experts on natural resources can have an important role

in supporting a mediation team, depending on the nature

of the resource disputes. At this point it is also useful to

identify any potential supporting actors to the mediation

process, including mentors, conveners, and sponsors.

2.2 Pre-negotiation preparedness phase

In practice: Process design and key principles in the Indus Waters Treaty

In the Indus Waters Treaty, an agreement on process design and key negotiation principles was an important precondition in

preparing the ground for the negotiations over the allocation of the Indus River and its tributaries between India and Pakistan.

The World Bank helped the parties to design the process and agree on initial key principles on the nature of the solution that

the parties would aim for, as well as the type of representation needed to increase the likelihood of reaching a ﬁnal agreement.

In particular, the parties agreed to negotiate on a functional rather than political basis, resulting in the appointment of engineers

from both countries to engage in the negotiations, supported by an engineer from the World Bank. This technical approach

allowed both parties to overcome various barriers and helped contribute to the adoption of the Indus Waters Treaty.

Source: Expert meeting on mediating natural resource conﬂicts. See also case study 6 in Part B of this report.

Pakistan’s Indus water commission ofﬁcial, Shiraj Mamon (center left in red jacket) walks with Indian ofﬁcials on the banks

of the river Tawi in Jammu, India. The Indus Waters Treaty of 1960 created the permanent Indus Commission, promoting

cooperation on transboundary water issues in the basin

Prepare mediation methods and modalities: Preparation

requires thinking through the range of methodologies

and modalities that will be needed to achieve successful

meetings and all of the other activities that form part

of the negotiation process. Tools such as stakeholder

consultation meetings, joint fact-finding, brainstorming

sessions, the use of outside experts, confidential

caucuses, thematic subgroups, field trips, and com-

munity information sessions can be utilized throughout

the process. By varying the interactions between the

parties, interest in the process can be sustained and

relationships can be built in different ways.

Establish a work plan, sequencing, logistics, and

location: An essential aspect of negotiation preparation

is determining when the mediation process should

begin, how it should be sequenced, and where meetings

should take place. For example, are quick early wins

needed to develop momentum and build initial mutual

trust, or are easy wins best used later in the process?

It is important to think through how long individual

meetings will last and to include contingencies for

process delays. Setting milestones and targets for the

overall mediation process can be extremely helpful, yet

forced deadlines can sometimes backfire. If training will

be part of the process, when should it be sequenced in?

With regards to location, some processes or meetings are

best held discreetly in private while others may be more

appropriately done in public. Furthermore, a mediator

must ensure all proposed locations are comfortable to

all parties, represent a safe, ‘neutral’ space, conducive to

building and maintaining trust. It is essential to estimate

the costs involved and ensure financing is available to

support the process through to its conclusion. Typically,

a sponsor will play the financing role.

Offer training on negotiation skills or technical topics:

If the assessment phase identified major asymmetries in

the negotiation or technical skills of the parties, training

may be needed to equalize the negotiating capacities

and technical capabilities. Negotiation training should

focus on interest-based negotiation techniques, with

an emphasis on effective process design as well key

principles of collaborative negotiation and consensus

building. This can increase the negotiation skills of

weaker parties, such as traditionally marginalized

communities or social groups like women and youth,

and thereby increase the likelihood of negotiation

success. Technical training can introduce basic technical

information on specific natural resource topics and

provide participants with case studies on how similar

resource disputes were resolved in other situations.

2.2 Pre-negotiation preparedness phase

In practice: Pre-negotiation

preparedness in Bougainville,

Papua New Guinea

The initial discussions between the rival factions in

the Bougainville crisis were mediated by New Zealand

from 1997 to 2001. During the pre-negotiation phase,

the parties agreed to hold the talks in a military camp

in a secure, foreign, and neutral territory. This decision

helped the parties feel safe in speaking freely about

their grievances and helped increase the perception

of negotiating on an equal footing. Throughout the

process the mediators facilitated the talks but did not

run them. Instead, they wanted to ensure that the

negotiating parties themselves mainly managed the

talks and thereby owned the outcomes.

Source: Expert meeting

on mediating natural resource conﬂicts.

See also case study 2 in Part B of this report.

In the case of the Nile Basin, several week-long training courses in Cairo, Bujumbura, and Nairobi helped set the stage for the

negotiation of the Nile Basin Interim Procedures for Data and Information Sharing and Exchange, which were agreed upon in

2009. Training activities were also instrumental for issues related to consultation and consent in the negotiation of the Mekong

River Basin Agreement, signed in 1995. Leading up to the 2010 Boreal Forest Agreement in Canada, negotiation training was

employed in the pre-negotiation phase to help increase the conﬁdence and capacities of some of the stakeholders.

Source: Expert meeting on mediating natural resource conﬂicts.

In practice: Training for negotiation

Training can be an important aspect of the pre-negotiation phase, enabling stakeholders and increasing the

chance of success

A training environment provides an initial opportunity

for the parties to explore the issues in a neutral and

‘safe space’. The views and positions expressed during

training are without prejudice to future negotiations and

can therefore help the parties to speak more freely. In

some cases, joint training can begin building dialogue

and confidence between the parties, albeit at an informal

or indirect level. The training can also give the mediator

deeper insights into the substantive, procedural, and

psychological interests at play that can further inform the

mediation process design.

Adopt mediation process design: All aspects of the process

design, as outlined above, should be agreed upon by the

parties to the mediation and adapted where necessary.

The agreement process itself represents an important

opportunity to build confidence, find early consensus, and

establish clear ground rules for the substantive mediation

to which the parties can then be held accountable. Clear

agreement on the process design usually translates into

greater commitment to the mediation itself.

2.3 Negotiation phase

The negotiation phase is where the substance and terms

of the agreement are addressed. During the negotiation,

the mediator helps the parties come to a mutually

acceptable agreement. Under the right conditions,

mediation can also help conflicting parties strengthen

their relationship and move toward cooperation. Within

this phase, it is generally necessary to:

 Clarify the issues;

 Develop a common information base;

 Investigate alternative approaches or models for

resolving issues;

 Identify potential elements of an agreement that all

parties are likely to support;

 Develop conditional elements of an agreement that

integrate the interests of some or all parties to the

negotiation;

 Prepare proposals by the parties;

 Consider trade-offs that may be required to

overcome outstanding issues;

 Present proposals from the mediator to overcome

impasses;

 Consider implementation requirements, including

provisions for addressing unforeseen barriers to

implementation and any ongoing governance

requirements;

 Achieve an agreement on a final package,

including testing that outcome with relevant

constituents, and ratification.

The good practices outlined below can help mediators

during the negotiation phase of a resource conflict. First,

a framework is described that helps identify possible

intervention entry-points based on different problem

dimensions of a conflict. Following this, additional

strategies useful for resource-specific disputes are

described.

The identification of entry-points is facilitated by the

framework below, which organizes the dispute into five

possible dimensions:24, 25 data/information problems;

structural/systematic problems; relationship problems;

conflict of values/beliefs; and conflicts of interests.

Possible intervention activities associated with each of

the five conflict dimensions are outlined below.

 Data/information problems: Possible mediator

interventions can include coming to an agreement

about the relevance of the data/information or the

approach that will be used to compile it; establishing

shared criteria to collect and evaluate the data/

information; or using outside expertise to provide

advice or resolve differences of opinion about data/

information.

 Structural/systematic problems: Possible mediator

interventions can include setting up a fair decision

making process that is accepted by all parties; re-

framing the dynamics to bargaining based on interests

rather than positions; redistributing ownership,

control, access, or management of disputed resources;

adjusting the ways in which the parties exert their

leverage by moving to greater persuasion and less

coercion; adjusting the timelines involved to permit

greater or less time; and adjusting factors that bring

outside pressures to bear on the parties.

 Relationship problems: Mediator interventions

may include promoting constructive joint problem

solving; establishing rules and procedures to

manage the emotional aspects of communication;

establishing supportive processes to encourage

emotional expression and legitimize feelings where

appropriate; unpacking perceptions and articulating

them clearly; strengthening overall communications;

and limiting repeated patterns of negative behavior

through procedural adjustments;

 Conflict of values and beliefs: Intervention strateg-

ies can include reframing matters to avoid a narrative

around conflicting values or beliefs; promoting

agreement with parallel understandings to ‘agree to

disagree’ on other matters; promoting constellations

of issues characterized by common values where

possible; identifying overarching objectives that are

held by all parties; and accepting that fundamental

conflicts over values and beliefs may not be resolved

through a mediation process.

 Conflicts of interest: Intervention strategies can

include prioritizing interest-based approaches

that avoid zero-sum positioning; creating win-win

solutions; seeking means to increase mutual benefit;

employing criteria that are objectively grounded;

and seeking resolutions that are integrated and

complementary regarding the interests of the

different parties.

In addition, a few ideas for interventions particularly

relevant to mediating natural resource disputes are

highlighted below:

Conduct joint information gathering: Natural resource

conflicts are often driven by confused, conflicting, or

inconsistent information held by the parties, which can

fuel mutual distrust. In such cases, joint procedures to

gather, validate, and analyze the information can be very

useful for establishing a common understanding and for

building trust between the parties. This approach can

be used to address a wide range of information issues,

such as the extent or amount of the resource; the rate

of exploitation involved; the distribution of costs and

benefits; or the influence of other factors such as climate

change. However, joint approaches have to be designed

carefully, especially when there are asymmetries in

technical capabilities to collect and analyze information.

The design of joint procedures needs to be based on a

solid understanding of what each party considers relevant

information, different “ways of knowing”, and what role

technical information plays in their understanding of the

problems and solutions.

2.3 Negotiation phase

The International Columbia River Engineering Board was established by the United States and Canada in 1944 to study the

river basin’s hydrology, population, economics, and existing dams. It is an example of joint information gathering that helped

to overcome years of unproductive dialogue and to unblock negotiations, resulting in the Columbia River Treaty, signed by

the two countries in 1961 and ratiﬁed in 1964.

Source: Expert meeting on mediating natural resource conﬂicts.

In practice: Joint information gathering for the Columbia River Treaty

Bonneville Dam on the Columbia River near Cascade Locks, Ore

A related approach involves establishing joint information

platforms that both parties can contribute to on a regular

basis. Such platforms can improve transparency and

confidence in the mediation process and equalize the

information held by the parties. Building such platforms

may require agreement on a range of issues, such as

the type of mechanism or scientific protocol needed to

generate or collect information; the terms of reference

for the process itself; the selection of relevant experts;

and, the design of processes to analyze and validate

the information. In some instances, ground rules may

be required to ensure parties cannot misuse the need

for better information as an excuse to avoid negotiating

difficult issues.

Seek impartial technical expertise and lessons learned

from other cases: Natural resource negotiations can be

influenced by the manner in which the parties interpret

the available data or by significant gaps in factual

information. Impasses are more likely to occur when

the parties base their positions on conflicting data or

diverging interpretations of the same data, or when they

believe the other party is withholding or misrepresenting

essential data. Impartial technical experts can ensure that

reliable, scientifically valid data and analysis is provided

to all parties on an equal basis. Impartial third parties may

also have access to state-of-the-art technologies (field

sampling and laboratory analysis, remote sensing and

geographical information systems, drone photography,

etc.) that can expand the existing sources of information

Natural Resources and Conflict: A Guide for Mediation Practitioners

Abstract