November 01, 2017

Mediation for Catalonia and Spain?

In the past two days, the international news media following the Catalonia independence movement crisis have reported that the independence leader and deposed Catalonia President Carlos Puidgemont has arrived in Brussels, possibly eventually to seek asylum, conceivably to form a “government in exile,” perhaps only, and ostensibly, to secure assurances of fair judicial process for his potential criminal prosecution in Spain.  The New York Times reports that “Belgium is virtually the only national government in Europe that has been even remotely sympathetic to Mr. Puidgemont’s pleas for mediation, not least perhaps because the country has faced separatist tensions of its own led by Flemish hard-liners.”

Those readers who take an interest in the elements of successful mediation of international disputes have perhaps been giving thought recently to how mediation might play a role in bringing about a solution to the Catalonia crisis. I have done so over the past several days, and here present some of my own thoughts. (My motivation of course is not to solve the crisis, but to derive lessons that those who act as mediators might apply to the successful resolution of complex disputes both international and domestic, commercial and political).

  1. Why mediation has not happened: It appears that the Catalan leader Puidgemont began advocating mediation quite immediately after the independence referendum held on October 1. The invitation was renewed several times in October, was rejected each time by Spain, and Puidgemont’s advocacy for EU intervention as a mediator was rejected by the EU.  The EU’s refusal to act as mediator may be seen as an admission that it could not be an independent and impartial neutral, as its interest (and the interest of its members) in the unity of EU member states is evident. As to Spain’s rejection of mediation, it appears as a classic case of a disputant considering that any form of engagement is a legitimation of the other side’s position. But here it seems possible that Spain had options short of refusing negotiations to declare publicly its non-negotiable positions: the illegality of the referendum, the absence of a Catalan mandate for independence, the unacceptability of secession under any circumstance.  Spain evidently concluded that it had a better alternative to any imaginable negotiated agreement: the dismantling of Catalonia’s regional government under Art. 155 of the Spanish Constitution, and the criminal prosecution of Puidgemont and other Catalan leaders. That is what is unfolding, but whether it is a good solution remains to be seen.
  2. Defining an agenda for mediation: Mounting a confidential mediation that allows the participants flexibility without pressure from their constituencies is extremely difficult in such a transparent, media-saturated environment. But if such a confidential channel could be established, an initial mediation session might be devoted to defining an agenda for further mediated discussions within the period preceding the new regional election in Catalonia scheduled for December 21.  What would a possible confidential agenda items be? Adjournment of criminal proceedings in Madrid against the deposed Catalan leaders pending the December 21 elections? Security arrangements for the December 21 elections and methods for tabulating the ballots? Terms and conditions for campaigning and debates ahead of those elections? A commitment to a moratorium on unilateral action and to engagement in discussions for a minimum period of time following the December 21 elections?
  3. The Mediator’s preparation:  There are many effective mediators who refrain from actively seeking opportunity for separate discussions with each disputant prior to the first mediation “session”. There are also many effective mediators, I believe a smaller group, who seek leave from the parties to treat the mediation as underway as soon as the mediator’s engagement is established, such that the mediator may (and actually does) conduct separate telephonic or in-person discussions before bringing the parties together for a joint session. Would the latter approach be advisable for this dispute, assuming it can be accepted by Spain and the representatives of Catalonia? While this is a dispute about sovereignty, autonomy, and culture, among other things, from a mediation perspective its shares many of the attributes of complex inter-corporate disputes: e.g., personal motivations and idiosyncrasies of the leaders, dynamics between the leaders and their constituencies, highly-evolved narratives of each side’s position that may operate at least early on as barriers to creativity in the negotiation process.   Consensual separate sessions before any joint session is convened might begin to overcome these potential barriers to progress.
  4. Defining success in the mediation: Sometimes success in a mediation needs to be defined incrementally, and this is as true of civil and geopolitical conflicts as it is for commercial disputes. In a difficult mediation that promises no immediate final status solution, an initial measure of success can be that the mediation does not fail, that the parties agree to return for another session, and that the parties to commit to refrain from or at least not to expand upon efforts to bring about a final status change by other means. In a conflict like this one involving the very fabric of civil society and how the “rule of law” and “democracy” are defined and understood, an agreement to continue  discussions and to refrain from certain pressure tactics outside the mediation might well be an interim measure defining success in the mediation. (Possible voluntary restraint measures for Catalonia: no civil service strikes? no establishment of a government-in-exile? No Catalan efforts to establish international diplomatic recognition?  For Spain: no violent action by police against non-violent protest? suspension of the prosecution of Catalan secession leaders? restraint from seizing control of news media in Catalonia?).

 

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As the question of Catalonia’s political autonomy moves forward in this post-Declaration, post-Dismantlement, pre-Election phase, it will be interesting to see if initiatives for mediation are forthcoming from any source other than the advocates for Catalan independence. It seems evident that much can be gained from effective mediation. If the initiative were to come from another source such that Spain might embrace mediation without the embrace being seen as a capitulation, perhaps some progress or at least a deferral of a seriously destabilized civil and political environment can be achieved.

 

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