Wednesday, September 23, 2009

Pre-Conditions

President Obama yesterday succeeded in getting Israeli Prime Minister Netanyahu and Palestinian President Abbas to meet in the same room in New York. The President said "Simply put, it is past time to stop talking about starting negotiations, and time to move forward." (quoted in the Los Angeles Times) According to a Netanyahu aide quoted in the New York Times, the meeting was to take place "without preconditions, as the Prime Minister has always wanted." This is obviously a reference to the Palestinian insistence on a settlement freeze prior to any serious negotiations. But the Israelis have also set preconditions to various meetings in the past, and Israel and the United States still will not negotiate with Hamas unless Hamas renounces terrorism and recognizes Israel's right to exist.

An insistence on pre-conditions can create a stalemate before any negotiations have even begun. If each party demands that the other side "give in" on some point before they will even deign to talk to each other, they may give up an opportunity to obtain concessions on those points as well as others. By demanding a settlement freeze, for example, the Palestinians may not obtain any concessions whatsoever on settlements. In the more mundane settlement negotiations in which I operate, I sometimes encounter parties who do not want to proceed unless the other side has an appropriate representative physically present; or who do not even want to attend a mediation unless the other side indicates in advance that it is willing to consider certain settlement parameters. In those situations, I generally try to find out whether there is a possibility of getting anything constructive done even if these pre-conditions cannot be met. If the parties and the mediator insist on waiting until ideal conditions are present, sometimes they miss an opportunity to resolve a dispute.

On the other hand, requiring that certain agreements be made even before negotiations can begin is often an effective way of getting the necessary pillars in place that will support an eventual settlement. And it is difficult to start a negotiation without at least some ground rules, so it can be said that there are certain minimal pre-conditions to every negotiation. For example, parties need to understand when and where the meetings are going to take place, and they have to accept the legitimacy of the people negotiating for the other side. They ought to enter into negotiations with a willingness to listen, and a willingness to consider resolving the dispute. Without at least a minimal acceptance of the idea of mediating a dispute, it is probably not possible for parties to resolve a dispute through mediation.

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