Lessons Learned on Chixoy
An interview with Elizabeth Bevington, a member of a team of 20 pro-bono lawyers with Holland & Knight, LLP (H&K), which advises COCAHICH on the Chixoy negotiations.
Involvement of a well-respected neutral facilitator is key. We began the process with a government agency in charge of human rights as the organizer and moderator of the meetings. That process did not work well, and we recommended involving a neutral party. After some due diligence, Roberto Menendez of the Organization of American States (OAS) was identified as a potential mediator and all parties accepted. This change marked the beginning of the real advances in the process.
Another critical component is empowerment of local leaders. The community leaders were already well-versed in the process of building consensus within their own communities, but were less experienced with external high-level political negotiations. While we were always present for actual meetings, the representatives themselves were in charge of speaking. We provided input during the meetings, never hesitating to call for a separate caucus when it seemed necessary. Importantly, we also provided feedback on what approaches we saw as constructive. It was not long before the representatives, already natural leaders, became more comfortable with the group and the process. The next step is encouraging the next generation of leaders. We have a wonderful young spokesperson, Juan de Dios Garcia, who is very involved with the communities, and brings other community representatives with him to meetings. But it would take training programs and more effort to keep the momentum going in developing young leaders.
The use of a political document to outline the government's commitment is another key lesson. The actual form that this takes will vary depending on the political structure of the country or organization at issue, but it is very helpful to have a governing document that outlines agreed-upon objectives for the negotiations. The process of negotiating the document itself is very important. It will highlight areas of agreement and disagreement, and provide an opportunity to narrow the areas of dispute. It is important to have it signed by a high-ranking person who can assert that he or she makes the commitment on behalf of the negotiating entity.
Another important aspect of success is knowing how to defuse tensions and suspicion. Arrange to "break bread" together as often as possible. Try to get one or more of the negotiating parties to take turns hosting the meetings, preferably with time set aside for socializing. Set aside volatile issues for another forum. This might not be as significant in other negotiations as it was with Chixoy, but if there are issues that are more volatile, such as massacres, try to determine if there is some way to defuse the issues by separating them out from the solutions to practical problems. In our Chixoy negotiations we were able to assure the negotiation table that we did not intend to make the massacres an issue, and were looking only to resolve the tangible, practical, present-day problems of the communities, such as housing, economic development, cultural preservation, education, health.
Related to this, try to avoid assigning blame before reaching the means for remediation. You can begin this process with the negotiation of the political governing document, by stating that the objective is to determine what unresolved or remaining damages resulted from some event, such as the building of the dam, rather than what damages resulted from some blameworthy act, such as the government's failure to resettle or failure to keep promises.
Transparency in all the processes is very important. Make sure, for example, that if an expert is to be consulted, the entire group has the opportunity to comment on the selection and use of the expert. This process was used in the selection of the OAS as the neutral, and it worked very well.
Whenever possible, encourage both sides to make the kind of concessions to generate good will so that the participants began to develop something of a sense of trust.
It is important to have observers at the table. The United Nations is a good choice, as are internal human rights agencies. In addition, having the World Bank and the IDB as observers is very important, as they can suggest or directly provide funding sources for the process itself as well as the remediation.
Using a commercial law firm or other type of advisor can be viewed as bringing a practical and commercial approach to dispute resolution. We think that the involvement of H&K in the negotiations gave the government a sense that their dialogue with the communities would be grounded in commercial practicalities rather than ideologies.
The fact that criminal charges were pending against the leaders of the communities was an obvious obstacle in the process. One side of the table had the power to deprive the other side of the table of its leaders. Moreover, the situation created potential for conflict of interest, since the government had something very significant to offer the leaders individually. We all took an early and firm position that this impediment to free negotiation had to be removed. Ultimately this issue was resolved, and its resolution enhanced trust among the participants.
Delays have been a huge problem. These communities have been suffering the consequences of displacement since the 1980s, and have been involved in this negotiation process for three full years. Part of the delay is that with so many participants scheduling is difficult. In addition, any national emergency or big holiday brings all scheduling to a halt. Other than continuing to urge the table to set a firm schedule, and turning around requests for information and drafts as quickly as possible, we have no suggestions for improving on this problem.