Professional mediators say there are some disputes you just can't resolve.
George W. Bush's conflict with Saddam Hussein may be one of them.
"This whole process has not been reassuring from a mediator's point of
view, " said Charles Doran, executive director of Mediation Works, a Boston
dispute-resolution firm. "I kept listening for diplomatic openings.
Instead, all I heard was posturing and threats."
That hasn't changed over the past few days. On Monday night, President Bush
charged the Iraqi leader with "decades of deceit and cruelty," and
gave him until tonight to go into exile or face the wrath of the U.S. military.
Hussein responded Tuesday by saying he isn't going anywhere. He warned that
U.S. forces will be met by an Iraqi soldier "behind every rock, tree and
wall."
While mediators acknowledge that Hussein almost certainly has violated
disarmament accords stemming from the last Gulf War, they say the White House
has given him no room to explore a peaceful settlement to the situation.
"It appears that it was never the intent of the Bush administration to
have a meaningful negotiation," said John Bickerman, whose Washington firm,
Bickerman Dispute Resolution, has handled arbitration for some of the world's
biggest companies.
"It's always been this administration's position to depose Saddam
Hussein," he said. "That doesn't leave a lot of room for talks."
Is Hussein contractually obligated to disarm? Legal experts say that's
debatable because he wasn't actually a party to United Nations resolutions
calling for destruction of his various weapons.
"But if he did have contractual obligations, that sets up an even better
case for mediation," said Merri Baldwin, a San Francisco attorney
specializing in contract law. "It gives the mediator something to work
with."
Still, corporate mediators emphasize that the only way a dispute can be
resolved short of out-and-out warfare -- whether waged in court or on the
battlefield -- is if both sides are willing to at least discuss other options.
"They've got to want to resolve it," said Steve Rosenberg, a Mill
Valley mediation lawyer who also teaches mediation techniques at the University
of San Francisco. "Otherwise, there's no reason to begin talks."
He and other mediation experts say that even if neither side in a dispute is
willing to make the first move toward settlement, there must at least be an
openness to meeting with a neutral third party.
Kofi Annan, the U.N. secretary general, would in theory be the best person to
initiate such a move, and in all likelihood, he did send feelers to both Bush
and Hussein.
For whatever reason, though, a U.N.-brokered mediation effort never got off
the ground.
Meanwhile, with Bush repeatedly insisting that other nations "are either
with us or against us," virtually no other world leader was able to
approach the dispute from a position of relative neutrality.
"Who is there that Bush would listen to as a mediator?" asked
Rosenberg. "The power balance is all out of whack."
Mike Kasperzak, head of Dispute Resolution Specialists, a Mountain View
corporate arbitration service, observed that if the U.S. and Iraqi sides had
been serious about finding a peaceful solution to their differences, they'd have
done everything possible to meet at the negotiating table.
"The Camp David accords (between Egypt and Israel) resulted from both
sides recognizing that something has to be done," he said. "They
wanted to work things out, but they needed some help.
"One of the fundamentals of mediation is that it's a voluntary
process," Kasperzak added. "The parties come to the table because they
want to reach some resolution."
He and other professional mediators took the absence of talks between
Washington and Baghdad as a sign that neither side in the conflict had an
interest in seeking common ground.
"Without a willingness to negotiate, even the best mediator in the world
couldn't accomplish anything," Kasperzak said.
Had Bush and Hussein agreed to hash things out, though, each mediator
interviewed said the first step would be to get past their harsh public
pronouncements and ascertain their true agendas.
If for Bush this means disarming Iraq while at the same time guaranteeing a
steady supply of oil, so be it. If for Hussein this means accepting
international treaties without ceding autonomy, fine.
The next step, mediators say, would be to narrow differences between the two
sides by determining where compromises can be made and how much flexibility both
parties are bringing to the equation.
Dana Curtis, who teaches mediation at Stanford Law School, said a good first
step would have been to convene a panel of eminent figures to help define the
key issues. "I would have included Jimmy Carter, Nelson Mandela and George
Bush Sr.," she said.
Bush Sr.? The man who led the last war on Iraq?
"Maybe Bush Jr. would listen to him," Curtis reasoned.
With Bush and Hussein having each invested so much personal capital in their
respective positions, an especially tricky task for any mediator would be coming
up with a solution that would allow both men to save face.
"It would have been helpful if both leaders had said that peace is in
their nation's interest," said Doran at Mediation Works. "Instead,
they've created a juggernaut that makes war seem inevitable."
Bickerman, the Washington mediation specialist, said one of his toughest
assignments came last year, when he brokered a pact between the Justice
Department and Boise Cascade for the wood-products giant to reduce emissions at
eight plants.
"The negotiations were very difficult," he said. "They took a
long time. In the end, though, Boise Cascade was willing to make a number of
concessions."
How does that compare with the conflict between Bush and Hussein?
"There's no comparison," Bickerman replied. "It doesn't look
like the Bush administration has ever been willing to negotiate this
thing."
And that, sadly, will lead to only one outcome.