THEME: Mediation and International Politics
This article was authored by Shailja Rawal and Girija Bhosale from the National Law School of India Univerisity, Bangalore.
This paper seeks to address the viability and feasibility of mediation as a technique for resolving religious disputes. The primary aim of the paper is to examine whether mediation contains requisite values and principles as a technique of resolving dispute related to religion in particular. It is important to consider this aspect because the nature of religious disputes themselves is very different from any other disputes in which mediation is typically used including commercial or civil disputes. Also the stakes involved in religious dispute are certainly higher as it may also go to the extent of causing international humanitarian crisis. Also more importantly, religious disputes usually do not involve only one particular individual party, rather it is a matter of community or ay collective group. Consequently, the impact of decision related to the same has potential to gave profound impact on the lives of many. Therefore, the paper posits that negotiation gives more scope for representation of all the stakeholders in the dispute, which ultimately helps to bring more perspectives. Such wide representation would definitely increase the acceptance of the decision of mediators.
The paper deals with the reasons of failure of mediation as a technique in Ayodhya dispute, since it was the most recent example of attempt of using mediation in intra country religious dispute. The paper highlights the importance of propriety of procedure to be followed by the authority appointing mediators and existence of willingness of parties to engage in mediation without predetermined bias against each other. Giving the Indian context, the paper examines the viability of mediation in international context and proposes that it would be proved as most useful and viable solution in international context particularly because of the representative value of mediation encouraging its acceptance and automatically resulting in lesser humanitarian damage and ease of enforceability.
In this world of ever increasing crime rates and disputes, newspaper has become a constant source of exasperation rather than a medium of information. Whether it is the Israelis and the Palestinians in the Middle East, Catholics and Protestants in the Northern Ireland or Hindus and Muslims in India all of them tend to fight over religious disputes. One need not go far enough in newspapers to discover such crimes rather they happen on a daily basis and have been normalized to a large extent. For example, an employer dismissing a Muslim women due to her clothing or a Hindu person not being able to marry someone from his religion are cases which are not hard to find. By gone are the days when religion could be used as an instrument to console either of the parties and spread the message of love and peace because now, ironically the root cause of the conflict itself is religion It has gained prominence as a barrier to resolution Religion possess the ability to influence the nature of conflict and because it is deeply seeded in parties’ identities and beliefs, religious conflicts tend to get more intense than nonreligious ones. This leads to conflicts being intractable and indivisible where neither of the parties tends to concede to each other’s demands rather develop a more hostile attitude. This seems to be a perpetual problem because many people argue that there is no solution to such an outlook. However, through the scope of this research paper, the researchers try to explore the possibility of mediating religious disputes. This has further been done by exploring all other options at hand including litigation, negotiation etc and then applying the most ideal approach to the disputes arising in current times
Mediation: A Process With No Winners And Losers
Ever imagined a conflict where both the parties are losers, or in simpler words there is neither victory nor failure? Prima facie it might seem confusing but this unfortunately is the reality and happens on a regular basis in the courtrooms. Yes, this is the process of litigation where both the parties try to resolve their disputes. On the face of it, this might seem innocuous however, often times law suits become a matter of ego clash and people just go on with the suits to ‘win’ it without giving it a due deliberation that whether it’s actually a victory in the true sense of it or not. By the end of the process even the ‘winner’ has lost so much money, efforts and time that sometimes he/she can be seen in a position worse than the losing party. A firm quick resolution is rarely what transpires, while it may seem fancy to bring in the legal hired representatives who can talk a big show, but the outcome is not all rosy as it might seem to be from outside. Abraham Lincoln identified the problem rightly and said:
“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
On the other side of it, a need arises to discover various other forms of alternate dispute resolution mechanisms. One of them being Negotiation, however it often does not work as a viable option because parties keep on passing personal remarks at the table and there is no one like a mediator to control the communication and thereby avoid such personally instigating remarks. Another advantage of having such a third party is the arrangements of personal sessions with him/her which although remains confidential but help the mediator assess whether the parties lie in the same ‘ballpark’. Thus, Mediation seems a viable option as it tries to reduce the divergent perceptions and acts as catalyst to bring the disputing parties together and amicably find a creative solution which might not have been possible in case it only involved two parties that too of opposite and competing claims. It creates an opportunity to arrive at a win-win situation as it is built around a culture of give and take and tries to mitigate hostility between the parties. The researchers do not aim to prove that it is the best option; rather explore its possibility of being adopted as a viable method in cases of religious disputes. If there is an agreement between the parties, then it’s great but even if there isn’t then also mediator can record the proceedings without any opinions or elaborations so that courts can then adjudicate in a non prejudiced manner. Justice Sandra Day O’Connor, a retired Judge of United States Supreme Court rightly observed that courts should not be a place where resolution of disputes begin rather they should be the place where such disputes end, meaning that courts should be the last option and should be explored only once other forms of dispute settlement are tried and exhausted. Mediation therefore as a practice can be summed up by the following quote
“An ounce of mediation is worth a pound of arbitration and a ton of litigation!”
Mediation: An Instrument To Resolve Religious Disputes
Taking the above notion forward, the following principles can be used to make mediation an effective instrument in religious dispute resolutions:
Separate Doctrine from Interpretation: In order to have a successful mediation, it is important to separate doctrine from interpretation. Mediator should not indulge or interpret the doctrine, rather consider it as the truth but, they can provide a reasonable interpretation and fine tune its application as much as possible for an amicable dispute resolution. For example if the doctrine says that women should dress modestly its interpretation does not mean that they necessarily have to wear a burkha rather it can be fine tuned according to the concerns of both the interested parties i.e. women and religious leaders in this case. One important thing to note is that the doctrines should not be contested as far as possible because this may attract instigation of religious feelings and it will be difficult for a believer also to suddenly adopt the changed doctrine/faith which he/she had been following from such a long time. This approach, if adopted will only lead to antagonism and hostility within the parties.
Separate Christ from Caesar: The relationship between person’s faith (Christ principle) and its applicability in the real world (Caesar Principle) is analyzed through this rule. Usually Christ tends to influence the people’s faith (Christ) and in such a situation the parties may not be able to exercise their autonomy and self determination. Role of the mediator in such circumstances essentially is not to prioritize the cultural or religious baggage of either of the parties or else either of them may never reach to an amenable solution or choose a middle path. The aim therefore is to separate the faith from social or political reality in order to justify the process of mediation. Without this, it might even become similar to bullying where one parties, blindly following its religious faith will never be able to compromise with the other party. Thus, acknowledging each other’s faith but at the same time not completely indulging into one’s own religious arguments can serve as an effective instrument to mediate such disputes.
Religious positions can’t be mediated but position from religions can be: There lies a difference between religious interpretation and interpreting something religiously. Although a mediator cannot go into the accuracy and validity of religious interpretations because that is something based on faith statements, and mediator cannot possibly fight with any believer over the requisite interpretation however they can mediate on a position which is not directly religious in nature, rather applied to a different situation. For example, if a believer thinks that the world was made in six days, then a mediator cannot go into the authenticity of such a position as it is directly related to a faith of a person but this position if brought into controversy can be mediated. Say, science postulates that it took billions of years for the world to come into existence, so now the mediator can apply such religious position and try to mediate and arrive at a solution that ‘days’ according to that religious faith were equivalent to a span of 1 billion years. By this they are not hurting the sentiments of any of the parties involved and has also successfully arrived at ‘middle path’ by keeping into account the religious considerations from both the sides.
After the above discussion it can be concluded that this area involving religious disputes is a sensitive one and therefore should be treated with due prudence. Any disregard or recklessness may lead to violent uproar amongst the concerned parties but this does not mean that one should turn a blind eye just to be on the ‘safer side’. Ignoring them does an ‘injustice’ and remember that merely closing one’s eye in front of a lion doesn’t mean that it will be vanished in the thin air rather can give an even brutal injury. Thus, in the status quo it has to be understood that religious disputes can pose grave problems and should be dealt tactfully.
Mediating Disputes In Indian Context: Resolving The Ayodhya Conundrum
What went wrong in the Ayodhya Dispute?
Ayodhya Dispute, a politically charged religious issue was not necessarily a property dispute rather a religious issue which although tried its way to go through the mediation process but at the end had to get settled by litigation process only. Even the Supreme Court knew the sensitivity and delicacy of the matter so had recommended it for mediation. Although, it was a good step taken by the Supreme Court by referring the case for mediation however, it did not emerge as a successful option. Researcher, while acknowledging the progressive step taken by Supreme Court discredits its decision of appointing Sri Sri Ravi Shankar as a mediator because ideally a mediator has to be a neutral third party with no inherent biases. In the present dispute Sri Sri Ravi Shankar had already passed controversial statements against the Muslim community and threatened them of a Syria like situation in case of their reluctance or un-cooperation. Not only this some of his remarks showed as if only the Hindu community is the “people of India” which mitigated the confidence reposed by the Muslim community in the entire process. Along with this the mediating parties should sit at the table with an open mind with no previous grudges; however the parties rather acted in a very childish manner. It seemed as if the aim of the mediation process was not to settle the dispute rather criticize the other party. Along with this, the issue also involved lack of trust from the Muslim community which was afraid due to the conflicting interest as against a majoritarian ‘Hindutva’ population which might subdue their legitimate claims and even ask for other disputed sites also. This fear was justified also in light of the slogans raised such as “Yeh toh sirf jhanki hai, ab Kashi, Mathura baaki hai” meaning that Ayodhya is a mere trailer, the entire film still remains which includes Kashi and Mathura. This question of trust could have been settled collectively by the Hindu communities by giving an assurance that this result shall not have any relation to other such ‘mosque’ disputes. Mediation although a great idea to start with, couldn’t meet its desired end due to “ego clashes” of both the communities. It needs to be kept in mind that loss of one community does not make the other community bigger or victorious rather results in the failure of India as a nation which has drifted away from its preamble values of fraternity and unity of the nation with dignity of an individual. These disputes are not just restricted to the current Indian society rather extend in the world outside as elaborated below
Mediating In International Religious Conflicts: Problems In The Status Quo And Way Forward
The world has seen vast number of conflicts between religions and even in the modern world in which there are separate political nation states having mostly secular constitutions, the influence of religion on any kind of division of resources including land, people, water etc, has not been reduced. Over recent years, armed conflicts with a religious dimension have dominated world news, and indeed they have become more frequent. The role and significance of religion in armed conflict is complex. The increased proportion of conflicts with a religious dimension is not only due to an increase of such conflicts, but also due to a decrease in non-religious conflicts overall. Further, not all conflicts where religion plays a role are becoming more frequent, calling for a more disaggregated analysis. Religious conflicts influence such division to the extent to which there arises humanitarian crisis including migration, poverty, and terrorism. Therefore it has to be accepted that finding a solution on such a complex problem will not lead to a straightforward or any simple solution. But mediation can serve as effective tool for resolving or at least reducing the adverse impact of these international religious disputes on humans. Primarily because mediation offers various avenues through which the most convoluted, or emotional facets of a disputes can be addressed which is very much impossible in any other kind of dispute resolution mechanism especially litigation. Considering the very recent ruling of International court of Justice on the Rohingya dispute, though it is a welcome decision the impact and enforcement of that decision is still in doubt primarily because there is no world government to enforce the ruling and the humanitarian damage which has been already done cannot be recovered. In such scenarios, mediation can serve as a best tool primarily because the ‘acceptance’ of decision arrived through mediation will be much higher to both the parties than any ‘ruling’ coming from litigation. Because, ultimately the consequence and effect of the decision would depend on the acceptance especially when the dispute involves people at large as a parties and enjoy local dominance to the large extent.
Certainly it is a very challenging process to address any international religious disputes. It is also important to mitigate the other factors which may aggravate such disputes. The general culture of extremism and fanaticism needs to be actively curtailed. We must find an approach that promotes understanding, tolerance and unity among religious people. Any element leading to the culture of extremism needs to be curtailed with the collective effort of political leaders, general religious community, religious leaders, etc.
Advantages of using mediation in international religious disputes
Being involved with both faith-based interventions and secular interventions, Jacob Bercovitch and Ayse KadayifciOrellana, scholars and authors who specialize in international relations and conflict resolution, set out the following advantages of mediation for faith based disputants:
a) Explicit emphasis on spirituality and/or religious identity;
b) Use of religious texts;
c) Use of religious values and vocabulary;
d) Utilization of religious or spiritual rituals during the process and;
e) Involvement of faith-based actors as third parties.
Handling ‘Religious’ Cases With Due Care: Suggestions To A Mediator
The experience of people working in the field of dispute resolution in international religious context, there are certain important issues or facets which need to addressed and considered while resolving any religious disputes or even a dispute in which faith based claim has been made. Such factors have been discussed in this part of the essay.
Finding ‘true facts; and using caucus
At the core of any religious dispute, the statement of truth is the most important. There are always multiple stories with multiple versions claimed by both the parties. A successful mediation involving religious principles or institutions requires a dramatic shift in people’s version of truth as well as a storyline that allows everyone to move towards a more amicable path. However, when the conflict itself involves religious values or religious practices, the issues may be a constant reminder of faithfulness toward the personal truth. The core conflict involves both personal and group identity. With effective use of caucus, religious parties can enjoy the safe space they need to share their personal stories surrounding faith and conflict. As Professor Lela P. Love of Cardozo School of Law and I have written, “Ignoring religious precepts may involve peril: peril to our soul and, perhaps, to our pocketbook.” Every major religion, in its own way, promotes spirituality-based at the centre of any religion is a statement on truth, so a successful mediation involving religious principles or institutions requires a dramatic shift in people’s version of truth as well as a storyline that allows everyone to move toward a more amicable path. As Karen Armstrong, a former nun who has written widely about religion and society, explains, “All faiths insist that compassion is the test of true spirituality,” which then brings us all into relation with the “transcendence”. A compassion-based mediation process provides the parties clear process wins, a kind of Golden Rule benefit, over the traditional process of litigation. One other big advantage is that the parties may enjoy being part of the mediation.
Understanding values and religious text of community
For the mediator, it is important to understand that a mediator should know the values and religious text of the community whose dispute is being mediated. Utilising that shared text as a source of guidance and direction throughout the mediation garners legitimacy between parties and promotes buy-in from both sides. Flexibility and respect to the values cherished by the religious community, is important. Religions are complex, and within each religion, people have different levels of adherence. Individual differences make practices and beliefs even more subjective.
Understanding religion as the identity marker of the conflict parties
There is a vast reservoir of information in sacred texts on peacemaking and on prosaical and antisocial values that affect conflict. This literature contains a litany of individual struggles with the inner life that have led either toward or away from a violent disposition. religion plays the central role in the inner life and social behaviour of millions of human beings, many of whom are currently actively engaged in struggle. Diplomats and mediators could benefit from an in-depth understanding of the motives for either violence or coexistence. The fault lines of conflicts follow religious identity lines, either between world religions or between different strands of the same world religion. Religion can be both a way of identifying with a given group, as well as a way of differentiating from another group. In this brief, we will call such conflicts religious identity conflicts. Religion can shape what the conflict parties fight about. Religious issues can, in turn, have higher or lower importance relative to other issues in the conflict.
Appreciating the extent of influence of religion on the dispute
It is important to stress that religion per se is not the problem. The encounter of parties with different beliefs is at different extent. Understanding the extent of involvement of religion is important in order to know the extent to the factor if religion is to be considered. Sometimes, religion is only one of the factors of the dispute along with many other factors which for the entire dispute. At such times, resolving the other issues may be easier and it may also result in the dispute resolution as a whole. Successful resolution of religious issue conflicts point to the importance of disentangling the religious from the political components, and/or to adapt classical conflict resolution tools to better deal with differences in religious beliefs.
The advantages of using empathy as a basis for devising mediation strategies is that there would be a built-in spiritual motivation to engage in exercises emanating out of a familiar value. As an example, hearing the public testimony of parties to a conflict is critical to Moral Re-Armament’s conflict resolution process at their retreat centre in Caux, Switzerland. Empathy is evoked by the painful story of the other party, and, in this religious setting, both parties refer to God’s role in their lives. For example, in a dialogue or conflict resolution workshop involving devout Christians and Muslims, one might frame the discussion in terms of emulation of God’s empathy as a vehicle toward understanding each party’s needs and aspirations. Allah is referred to throughout the Qur’an as “the Compassionate and the Merciful,” and Jesus’ empathy with others in their suffering is well illustrated throughout the New Testament. 
Use Of Mediation In Current World Religious Disputes
In 1975 – the earliest data available in the Religion and Armed Conflict (RELAC) dataset – religious conflicts represented only a minority of all conflicts, and almost all of these were religious identity conflicts. The number of identity conflicts has decreased slightly but constantly since, resulting in only five or less per year since 2012. This steady decrease may indicate that conflict prevention and resolution mechanisms have been effective for managing these types of conflicts. Religious issue conflicts were a marginal phenomenon in 1975. To analyze the trends in conflicts with a religious dimension, the distinction of identity and issue conflicts introduced above is used The first increase of such conflicts occurred in 1979, driven partly by the dynamics following the Soviet invasion of Afghanistan and as a reaction to the Islamic Revolution in Iran. Since then, the frequency of such conflicts has increased steadily, and with accelerated speed since 2010. In 2015, religious issue conflicts were the majority (56%) of all armed conflicts. Research suggests that such conflicts are more intractable than other types of conflicts and are less likely to be solved through peace settlements. This indicates that existing conflict resolution and prevention mechanisms may not be adapted to this particular type of armed conflict.
The Four Sublime Moods of compassion (karuna), equanimity (upekkha), joy in others’ joy (mudita), and loving kindness (metta) are an important tool of conflict resolution available in the Buddhist context; they also have important pedagogic value for the general understanding of changes necessary in internal perceptions of the “Other” who is an enemy.
Sanctity of human life as endeavoured by all religions
Human life has always been considered to stand at qualitatively higher level as compared any other life form, by almost all the major religions in the world. This common thread across religions can be used in mediation.
Religious societies are conscious and aware of inner life of an individual. Prayer, meditation, the experience of divine love, ecstasy, guilt, and repentance all reflect the central importance of the inner life. Appealing to these aspects dictating inner morality of the parties may prove to be extremely useful in the process of mediation.
A critical concept for the inner life in the Eastern traditions of Jainism, Buddhism, and Hinduism is ahimsa, nonviolence, made famous in the West by Mohandas Gandhi.  Certainly, in an Asian context, the elaboration and use of this principle could be a critical cultural tool to traverse ethnic and social boundaries.
Gandhi combined religious discipline, pluralism, and conflict resolution. Religious fasting and dietary restrictions were used on Gandhi’s Tolstoy Farm as a means of promoting mutual respect and tolerance, as each religious community member–whether Parsi, Hindu, Christian, Jewish, or Muslim–would aid the others in the observance of the discipline of their respective traditions. Consider the effect on the participants or the witnesses to Gandhi’s encouragement of Christians and Parsis to help a young Muslim to fast the whole day during Ramadan and to provide food at night for him. The fast itself is rooted in ancient tradition. Yet it is transformed, in Gandhi’s hands, into a moment of inter-religious discovery of immense power that leads the participants to nonviolence. Gandhi’s concern was to provide a model for religious observance that simultaneously creates tolerance.
Messianism and Imagination
All three monotheisms have a crucial contribution to make to conflict resolution studies in their vision of a more just society amid new possibilities for the human social order. The phenomenon of religious messianic dreaming and envisioning of new realities should be studied in terms of how to combine it with the imaginative element that is necessary for conflict resolution.
There are two basic approaches for resolving conflict. Firstly, removing the sacred from the conflict. Secondly, adapting traditional conflict resolution tools for dealing with religion. The first approach attempts to desacralize the religious dimension of the issues parties fight over. The goal of this process can be to change an actor’s priority ranking of the various conflict issues, ultimately aiming to remove the religious issues from the conflict or otherwise lower their importance relative to others.
In Indonesia, the government granted permission to the Aceh region to implement sharia law. This accommodated some demands of the Free Aceh Movement rebels, thus taking the religious issue out of the conflict and laying the ground for continued negotiations and the peace agreement in 2005.4 Alternatively, the aim can be for actors to re-frame the religious message by focusing on the more moderate and cooperative aspects of religion. Conflicts can also become desacralized due to changes in the structural dynamics of the conflict, which are outside the scope of action of a mediator. An actor can lose backing of its core supporters due to moral outrage about particularly violent conflict behaviour. Similarly, a new group can emerge which forces all actors to reposition themselves, typically leading to a more moderate and a more extreme group. Alternatively there can be a shift in the society which leads to a narrowing of the religious divide between the various sections of the society, ultimately making the religious dimension of the issue at stake less relevant. Adapting conflict resolution tools Given the deeply emotional nature of worldviews, people and societies tend to react strongly to perceived pressure to forgo their beliefs. As a consequence, attempting to mitigate religion or to negotiate religious views can lead to polarization and hardened positions. Out of this consideration, another line of thinking concentrates on adapting conflict resolution mechanisms so that they are better equipped to deal with religious issue conflicts. This approach accepts that religion can be a key component in a conflict – not just as an instrument of recruitment or identification – but as a conflictual issue in its own right. Consequently, the religious component is taken into account when analyzing and when dealing with such conflicts.
As an early adopter of this thinking, Switzerland used this in the early 2000s in Tajikistan. Other actors such as US pastor Bob Roberts have also worked in this manner in Afghanistan and Palestine. Most of these approaches stress that the focus of the conflict resolution process should not be on negotiating the differences in the religious beliefs. Instead, the idea is to create a “safe space” in which convictions and beliefs are not questioned or challenged. The process is instead structured so as to allow actors to reinterpret the practical implications of their beliefs themselves. If the process focuses on discussing the actors’ views, both sides are likely to defend them, leading to a hardening of those views. Instead, the idea is to find and implement joint practical solutions to the parties’ conflict. This allows them to manage differences in a non conflictual way, increases the trust between actors and allows each group to re-evaluate their positions on practical questions while remaining true to their beliefs and faith.
The paper focuses on viability of mediation as a technique for resolving international religious disputes. It discusses the nature of religious disputes and the analyses the utility of techniques in mediation in the process of resolving these disputes. It has been concluded after the study of use of mediation as a dispute resolving mechanism both at national and international level, that mediation can be proved to be the best possible solution available on religious disputes. Primarily because, through mediation claims of both the parties get validation from each other to the certain extent and the acceptance of decision arrived through mediation is much more compared to that of litigation or negotiation.
The paper discusses various principles in mediation which can be effectively used while resolving a dispute in Indian context, considering the vast variety of religious communities existing in India. It can be further concluded after the discussion of failure of mediation in the recently adjudged Ayodhya dispute that the willingness of parties and moral propriety expected out of authority appointing mediators are vital factors impacting the ultimate result of mediation.
Further, various factors which would be particularly useful for international religious disputes have also been discussed. The empirical trends and currently existing mode of mediation in international religious dispute has been examined which lead to the conclusion that in international context, mediation would be particularly useful technique because it will entail more effectiveness, validity and acceptance than any ‘ruling’ considering the absence of enforcement authority unlike at national level.
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