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Using Mediation to Reduce Risks of Violence and Develop
Economic Viability in a Diverse Tunisian Civil Society
Often heralded as the birthplace of the Arab Spring, Tunisia is a powerful global symbol
of what a pluralistic society can accomplish through peaceful changes. In a region too often
shattered by violence, the world applauded as Tunisia recently made a huge
constitutional stride in its journey for internal peace.
Although there has been and will continue to be real challenges and divisions on its
journey, it is expected that Tunisia will continue to adapt and change with patience and
honorable intentions. Tunisia is facing considerable economic challenges; the people of Tunisia
are tasking their politicians to improve their lives. Largely avoiding the chaos and violence now
plaguing its Arab neighbors, Tunisia adopted a new constitution on January 27, 2014. Members
of Tunisia's National Constituent Assembly voted to approve the country's new constitution,
completing the two-year drafting process and opening the way for a new democratic era -- only
three years after the uprising that set off Arab Spring. This document provides for minority rights
and separation of powers, and assures a place for women in the power structure. Although
Tunisia is officially a Muslim nation, it allows the practice of other faiths.
What can strengthen implementation of the rights guaranteed by this newly-created and
powerful constitution? How does Tunisia continue on its enlightened path to peace? What rule
of law process can be implemented to strengthen and reform Tunisia's judiciary? What civil
society process can move Tunisian civil and business interests from violence to economic
development? Lastly, and critically important, what societal process can be used in dialogue
between Islamists and Secularists? This paper discusses one approach as a potential answer
many to these questions. But, it is a powerful answer: mediation.
Mediation is a broadly inclusive process in which a neutral third-party is involved with
the parties to a dispute or conflict. A mediator cannot impose an outcome but rather assists the
disputing parties in reaching their own agreement. The parties control the outcome of the
resolution - the mediator only works to facilitate the parties' reaching their mutually, self-
designed resolution. Mediation is confidential. It is a voluntary process. Mediation is versatile. It
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can be used to resolve disparate disputes ranging from those between nations to internal within a
country: between and within diverse communities; among and between families; between groups
of diverse religions and those holding sincere, but differing belief systems; in public policy
disputes; in disagreements in all kinds of neighborhoods, for all kinds of community quarrels;
and, between businesses, individuals and businesses or individuals. Mediation is adaptable to
use by and within world communities because it is a flexible, non-judgmental and empowering
process.
It is globally recognized that mediation is a powerful local, neighborhood and community
tool for the peaceful resolution of disputes. Just shortly after the Jasmine Revolution in Tunisia,
the United Nations, in June of 2011, passed a unanimous resolution recognizing mediation's
power and universal application. UN Resolution 65/283 strengthened mediation as a tool for
dispute and conflict settlement. This resolution exhorted its Member States to seek peaceful
settlement of disputes through mediation.1 Tunisia was a signatory to this resolution.
Mediation is not in any sense an "adjudication" as that process is used for results
produced by courts, tribunals, non-binding arbitration, arbitration and case management.
"Adjudication" is a term that can include decision making by a judge in a court, by an
administrative tribunal or quasi-judicial tribunal, a specially appointed commission, or by an
arbitrator. An adjudicator determines the outcome of a dispute by making a decision for the
parties that is final, binding and enforceable Adjudication processes are determinative in nature.
In any adjudication process, the outcome is determine by a third party, usually a stranger to the
dispute. Courts must follow the strict confines of evidentiary and procedural rules and, although
arbitrators have greater latitude, they still are constrained to procedural and evidentiary
parameters. Quite the opposite is true for mediation: the parties decide for themselves what the
solution will be. It is not the finding of right or wrong, it is the making of compromise.
Mediation resolutions crafted by the parties to the conflict can be creative, long-term and
flexible.
1 The United Nations, through its Department of Political Affairs, established its Mediation Support Unit
(“MSU”); it serves as a central repository for peacemaking experience, a clearing house for lessons learned and best
practices, and training coordination for mediation on UN standards and operating procedures Between 2008 and
2011, the MSU was involved in supporting over 30 peace processes on all continents.
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At the onset, it is helpful to understand that although mediation and conciliation have
common elements, there are viable differences.2 Like mediation, conciliation is an alternative
out-of-court dispute resolution instrument which can be voluntary, flexible and confidential. The
main difference between conciliation and mediation proceedings is that, at some point during the
conciliation, the conciliator will be asked by the parties to provide them with a non-binding
settlement proposal. A mediator, by contrast, as a matter of principle and training, refrains from
making any such a proposal. The parties, excluding the mediator, sign their jointly crafted
settlement agreement. Thus, mediation, contrary to most conciliation processes internationally, is
one in which the parties are empowered to create their own resolution of the dispute. Powerful
anecdotal evidence suggests that by having the parties "own" their decisions, the settlement of
the dispute or conflict is considerably strengthened.
Mediation, inherently and by common practice, includes other conflict resolution skills,
either used independently or as a part of the mediation process. For example, negotiation skills
are developed and used both by the parties and by the mediator. 3 Generally, negotiation is a
process in which two or more participants attempt to reach a joint decision on matters of
common concern in situations where they are in actual or potential disagreement or conflict.
Negotiators may use a variety of approaches. 4
Dialogue is a crucial core of or, depending upon the need, an adjunct process to
mediation. “Dialogue” has many different meanings, in different contexts, for different people.
For the purpose of describing it as a core element of mediation, a dialogue is a conversation
whose purpose is mutual learning and understanding. This discourse contributes to building and
deepening relationships across differences of identity. Used alone, dialogue is not primarily a
search for agreement or solutions, although it can serve as a foundation for collaborative action
and coexistence. No one is asked to compromise their core beliefs or values. They commit to not
2 The Centre de Conciliation et d’Arbitrage de Tunis is a well known, respected organization in Tunis which
encourages the use of conciliation and mediation. 3 Negotiation is often taught as a wholly separate skill because of its sophistication and multiple uses outside
of mediation. But it is also an inherent part of the mediation process. 4 For example, "Power negotiation" involves a negotiator's understanding and strategic use of various
sources of power to achieve a negotiator's bargaining goals. Interest-based negotiation Fisher, Ury and Patton 1991)
attempts to reach solutions that meet the interests of all parties. An assumption of interest-based negotiation is that a
variety of interests or motivations may underlie parties' positions. The goal of the interest-based approach is to
satisfy those interests rather than bargain over bargaining positions.
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attempting to persuade, convince, criticize, judge or condemn the viewpoint of others. In
dialogue, participants: listen and are listened to, so that all speakers can be heard; speak and are
spoken to in a respectful manner; develop or deepen mutual understandings; and, learn more
about others’ perspectives and their own perspective.
Mediation is often implemented as a rule of law process to strengthen and reform a
country's judiciary. Judicial process in certain regions and countries is time-consuming,
expensive, or corrupt. It often leads to less desirable outcomes; or, no outcome at all. Mediation
offers a significant route to mitigating these issues by offering an alternative to the court
process.
Additional advantages of mediation compared to traditional court-related disposition of
disputes abound. In mediation, the parties have the opportunity to create a resolution tailored to
the inimitable circumstances of their particular dispute, oftentimes assisted by neutral mediators,
some of whom may be industry experts. Some courts have discretion to shape equitable
remedies, but in mediation, the parties can not only be equally creative, but can also address and
resolve potential future contentious issues. The outcome traditional in court related-litigation
and arbitration - that of the quintessential “winner and loser” - can be much more expansive in
mediation. The parties themselves can design resolutions that meet the needs of their respective
disputes, cultural and religious differences included. Mediation can adopt agreement in what
would otherwise be provisions unchangeable by a court or a panel of arbitrators. The parties in
mediation can redesign long-term contracts to adapt to changing political needs, societal and
legal changes and ideological shifts, in which a contract was implemented. Examples of creative
resolution by the parties in international mediation are quite literally infinite.
It is well known that the use of mediation reduces costs 5 and curtails the delay endemic
in litigation and arbitration. Add to these factors, routine reports by authorities from around the
globe confirm that mediation settlements have a higher rate of compliance than decisions made
5 See, Giuseppe De Palo, Ashley Feasley, and Flavia Orecchini, Quantifying the Cost of Not Using Mediation
– a Data Analysis, available at http://www.europarl.europa.eu/document/activities/cont/
01105/20110518ATT19592/20110518ATT19592EN.pdf. The EU [cost] break-even point for time is 19%
mediation success rate, and the break-even point for costs is 24%. Additionally, it is important to note that the study
found the average cost to litigate in the European Union is €10.449 while the average cost to mediate is €2.497.
Therefore, when mediation is successful, European citizens can save over €7500 per dispute.
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by outside parties. Many ascribe this attribute to the fact that the parties in this voluntary process
ultimately control the outcome of the agreement. The parties “own” their decision because they
are empowered by a trained neutral to create a resolution designed to be fair and capable of
performance.
Mediation is a process, unlike any other, because of its consistent imperative on
confidentiality.6 This fact alone makes mediation appealing in commercial disputes involving the
sharing of proprietary information. In mediation laws being promulgated in various countries
around the world, all of them have provisions requiring confidentiality. Especially in developing
countries attempting to incentivize trade and tourism, they have promulgated civil mediation
laws prominently displaying provisions of confidentiality. In some countries, the mediation laws
make violation of mediation confidentiality an illegal act. 7
Within the private confines of mediation, confidential information can be disclosed,
thereby enhancing communication and the exchange of otherwise personal or proprietary
information. Confidentiality helps the parties to better understand and identify the pivotal issues,
the often-undisclosed motivations, the pressure points, the risks of litigation, and the interests,
which, surprisingly often, can be mutual. Participants often disclose private events, perceptions
or issues in mediation they would not want disclosed to anyone publicly. Explaining their private
concerns and fears, even in business and commercial disputes, is often critically important to
them in order to resolve the conflict, especially in certain cultural contexts.
In most of the emerging rule of law countries, including many of the more sophisticated
countries of Europe, the judiciary and the courts are not as flexible as they need to be to address
the increasingly complex economic and communication demands that globalization has created.
International businesses now have clients all around the world and need a method of dispute
resolution that is faster and less expensive than traditional judicial adjudication. Countries
addressing court-based mediation programs understand that mediation simultaneously and
6 Although confidentiality can be used advantageously in arbitration, many of the institutional rules, until
recently, did not expressly provide for confidentiality. Therefore, parties involved in arbitration are advised to
include provisions in their arbitration clause to ensure confidentiality.
7 Some countries’ mediation laws not only provide that is mediation confidential, but also prohibit divulging
mediation information as illegal. See, e.g. the Jordan Mediation Law of 2006, the Kosovo Mediation law of 2009.
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significantly advances economic growth potential for increased international trade and
commerce. Mediation promotes:
Increased Access to Justice. Court-based mediation, as a societal tool giving
greater access to justice, is rapidly-growing worldwide. Supporters of mediation view it
as strengthening the judiciary in developing rule of law countries. Increased access to
justice is one of the fundamental conditions for the establishment of the rule of law.
These programs generally involve on-going international conflict mitigation efforts by
working to improve the functioning of and accessibility to the justice system. In the past,
the right of access to judicial protection meant, essentially and almost exclusively, the
aggrieved individual’s formal right to litigate or defend a claim, defined in strictly legal
terms. Mediation encompasses the broader view of what is going on behind such claims,
opening new pathways to resolving disputes and relieving the overcrowding that makes
resolving court cases unnecessarily slow. 8
Strengthening the Judiciary. Generally, justice sector reform programs seek to
strengthen the ability of the court system to deliver services in a more transparent,
independent and accountable way. All too often, in countries with developing judiciaries
or in post conflict countries, much of the population experiences the law only as an
obstacle. The law, and the costs associated with using the legal system, can make it
difficult or impossible to run a legitimate business, to secure redress for exploitation by
the powerful, or even to participate as a full member of the community. Societies with a
large segment of poor communities may only experience law and law enforcement as
instruments of repression. But laws, including mediation laws, can be a source of
opportunities – for expanding access to economic benefits, for ensuring government
accountability, and even for effecting broader social change. Mediation, as an adjunct to
the judicial system, works to instill confidence in the legal framework because is a
8 In particular, ADR processes are of significant importance to justice systems when effective establishment
of alternative means of dispute resolution can significantly reduce the number of minor disputes before the civil
courts, helping to improve the availability of judges for cases which must be tried.
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proven mechanism which promotes economic benefits in a business environment. It is
recognized as increasing governmental accountability and effecting broader social
changes for dealing with disputes in a non-adversarial forum.
Judicial Reform. The concept of judicial reform likewise plays a central role in
mediation promotion efforts. Judicial reform programs - which include mediation - seek to
promote a judiciary that functions with principles of modern court administration and case
management, increased transparency, better qualified staff, and increased public confidence.
Programmatic assistance includes establishing legal frameworks for judicial independence,
building judicial associations, promoting education and training of judges, strengthening court
administration, improving judicial ethics and accountability, and increasing public
outreach and media skills. Mediation is the adjunct to all of these.
Governments are supporting the growth and development of court-related mediation.
Perhaps the most heavily funded global provider of rule of law programs, is the United States
Agency for International Development (“USAID”). USAID asserts that its foreign assistance has
the twofold purpose of furthering the United State’s interests while improving lives in the
developing world. The Agency promotes broad-scale human progress at the same time it expands
stable, free societies, creates markets and trade partners for the United States, and fosters good
will abroad. USAID works in over 100 developing countries and in close partnership with
private voluntary organizations, indigenous groups, universities, American businesses,
international organizations, other governments, trade and professional associations, faith-based
organizations, and other U.S. government agencies. Under its general framework of Democracy
and Governance, USAID has become one of the leading governmental funders of justice sector
reform programs, including mediation. 9
The European Commission - Europa Funding (“EC”) - is another governmental
international funder supporting the development of court-related mediation programs. The EU’s
European Directive on Commercial Mediations, passed in 2008, made certain attributes of
enforcement of mediation in civil and commercial settlements uniform throughout the European
Union. The objective of mediation is for the parties to settle their disputes amicably without reference to
a tribunal, and the European Directive makes clear that mediation "should not be regarded as a poorer
9 The author has worked as a Mediator Specialist designing court related mediation systems for USAID in
Bulgaria, Jordan and Kosovo.
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alternative to judicial proceedings."10
The EU Directive is limited to cross-border disputes
among its member states: at least one of the parties must be domiciled or habitually resides in a
member state in order for the Directive to apply. Partnering with USAID, the EU recently
completed its funding of a country-wide mediation system in Kosovo.
The International Finance Corporation (“IFC”) of the World Bank Group is the largest
global financier. This development institution is focused on the private sector in developing
countries. As the private-sector arm of the World Bank Group, it promotes sustainable private-
sector investment in economically-transitioning countries. It does so by providing financing to
help businesses employ more people and supply essential services, by mobilizing capital from
others, and by delivering advisory services to ensure sustainable development. It provides
technical assistance and advice to governments and businesses.11
The IFC views commercial litigation as a potentially unavoidable consequence of growth
for new businesses. It sees expensive, time-consuming court proceedings as an increasing
burden to small and medium enterprises. Thus, it is has funded the establishment of several
court-related mediation programs. It has worked to develop two mediation models suited to the
country particulate legal framework and the court administration processes. 12
For Tunisia, its growing democracy demands that its people have faith in its judicial
system. Mediation is the process to critically assist in developing a stronger, more transparent
judiciary. If Tunisia wants to strengthen and expand its economic growth in today's global
10 Steven Friel and Christian Toms, The European Mediation Directive—Legal and Political Support for
Alternative Dispute Resolution in Europe, Bloomberg Law Reports, Vol. 2, No. 1, available at
http://www.brownrudnick.com/nr/pdf/articles/Brown_Rudnick_Litigation_European_Mediation_Directive_Friel_To
ms_1-2011.pdf
11
IFC, http://www1.ifc.org/wps/wcm/connect/corp_ext_content/ifc_external_corporate_site/about+ifc (last
accessed April 3, 2012)
12 The IFC has funded court-related mediation in Bosnia and Herzegovina, Macedonia, Serbia and Pakistan.
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marketplace, it should investigate promulgating a mediation law. A mediation law supports the
enactment of court-related mediation. Importantly, it signals to the international business
community that a country supporting mediation understand the needs of the global business
environment.
The use of commercial and business mediation is quickly growing globally. It mirrors the
rapid expansion of international business in the last decades as large and small companies in a
myriad of countries shift to a worldwide vision; few are tied to national boundaries. As
commerce and trade increase, so too does the likelihood of disputes. Today, international
business transactions extend over long periods of time, often many years; create complex legal,
financial, and technical relationships; and involve numerous participants from many different
countries, including multinational corporations, global financial institutions, sovereign
governments, state enterprises, and international organizations. Transnational business
transactions include international manufacturing joint ventures, multi-party strategic alliances,
huge infrastructure construction projects, high technology licensing agreements, international
franchising arrangements, production-sharing petroleum agreements, and fifty-year mineral
development projects. Parties from countries throughout the world are negotiating and carrying
out these complex transactions in an environment of diverse cultures, political instability,
conflicting ideologies, differing bureaucratic and organizational traditions, inconsistent laws, and
constantly changing monetary and economic variables. Because of these increased organizational
and transactional complexities, international commercial disputes are increasing. Mediation has
increased exponentially to meet international business and commercial dispute resolution needs.
It is undisputed that where business disputes exist, so will the opportunities to mediate
such disputes. It is not surprising that corporate surveys evidence mediation as the fastest
growing alternative dispute resolution (ADR) method of choice in the business community; it is
overwhelmingly chosen over other ADR methods across different jurisdictions.13
13 See, Herbert Smith, The inside track –how blue-chips are using ADR, November 2007, for corporate survey
results reporting preferences for mediation. Available on line at
www.hks.harvard.edu/m-rcbg/CSRI/ga/smith_adr.pdf
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A number of recognized international business organizations focus on providing not only
arbitration, but also now include a robust mediation division. Three of the largest and well-
known, international and for-profit organizations offering arbitration and mediation include: the
International Center for Dispute Resolution of the American Arbitration Association (“ICDR”);
the International Institute of Conflict Prevention and Resolution (“CPR”); and, JAMS, Inc.
There also are a number of other organizations which offer institutionalized arbitration and
mediation. Some of the other better known ones include the London Court of Arbitration, the
Stockholm Chamber of Commerce, and WIPO (World Intellectual Property Organization). These
organizations develop lists of selected and trained neutral (mediators and arbitrators) to work in
international arbitration and mediation.
The International Centre for Settlement of Investment Disputes (“ICSID”) (of the World
Bank) is another reputable organization supporting mediation. ICSID is an autonomous
international institution established under the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States with over one hundred and forty member
States. The Convention sets forth ICSID's mandate, organization and core functions. The primary
purpose of ICSID is to provide facilities for conciliation and arbitration of international
investment disputes.
Another global organization, the Paris-based International Chamber of Commerce
(“ICC”), adopted new rules in 2003 for the amicable resolution of cross-border business
disputes. These new rules included mediation rules patterned after the US practice of mediation.
Two years in the making, the new rules (called “ICC ADR Rules”) signaled recognition by the
ICC that mediation is co-equal with arbitration as a dispute resolution tool. The ICC similarly
provides granting status and effect of mediation awards as awards as a final award.
More and more countries are promulgating their internal mediation laws, increasing the
in-country possibility to judicially file for a mediation award or mediation judgment. If a lawsuit
has been filed before the mediation has commenced, it is possible in many jurisdictions to have
the court enter the settlement agreement as a consent decree and incorporate it into the dismissal
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order. Even where a lawsuit is not filed, in those countries with mediation laws, enforcement
can be by submission to a public notary or by using a court in a summary proceeding.
The development of court-related mediation, the enactment of a national mediation law
and the use of mediation in domestic and international business practices are all important to
addressing Tunisia's economic challenges. The country faces a high cost of living and a lack of
economic opportunities. International leaders suggest that Tunisia curb public spending on
subsidies on fuel and basic good to control a budget deficit. Tax increases are decidedly
unpopular. Use of mediation can be a signal to the world that Tunisia has entered a new phase of
governmental sophistication.
The fact that Tunisia, having no tradition of violence or military interventions, has opted
to battle at the ballot box and not in the streets is emblematic of the strong and positive character
of this country. However, current divisive debates between Islamists and secularists simmer and
threaten to erupt into violence. It is a complex and difficult issue. It is this writer's deeply
committed view that sustained mediation, in any or all of its forms, at any or many social levels
can work to heal divisions and prevent violence.
There is specific international assistance available. In addition to international
governmental and business funders, there has been a dramatic expansion in the size, scope, and
capacity of civil society organizations14
around the globe over the past decade, aided by the
process of globalization and the expansion of democratic governance, telecommunications, and
economic integration. The number of international NGOs was reported to have increased from
6,000 in 1990 to more than 50,000 in 2006. Civil Society Organizations (CSOs) have also
become significant players in global development assistance. 15
Many of these organizations are
working to build mediation capacities within civil societies experiencing civil unrest and the
14
The World Bank has adopted a definition of civil society developed by a number of leading research
centers: “the term civil society to refer to the wide array of non-governmental and not-for-profit organizations that
have a presence in public life, expressing the interests and values of their members or others, based on ethical,
cultural, political, scientific, religious or philanthropic considerations. Civil Society Organizations (CSOs) therefore
refer to a wide of array of organizations: community groups, non-governmental organizations (NGOs), labor unions,
indigenous groups, charitable organizations, faith-based organizations, professional associations, and foundations”. 15
For more information on the growth of NGOs and the funding they receiving, see,
web.worldbank.org/WBSITE/EXTERNAL/TOPICS/CSO/0,,contentMDK:20101499~menuPK:244752~pagePK:2205
03~piPK:220476~theSitePK:228717,00.html
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threat of violence or those recovering from conflict. Depending upon the specific in-country
situation, organizations and communities world-wide are using mediation along with a number
of adjunct peace-building processes, including those above of negotiation and dialogue.
The work and philosophy of a leading international mediation NGO, Mediator's Beyond
Borders International 16
is helpful to illustrate how one non-governmental organization tailors
mediation programs to ensure sustainability and capacity-building within its partnering
community. 17
MBB only works in projects or performs services upon request of its partner.
MBB co-designs mediation programs customized to meet the needs of its partner. Needs evolve
and change over time and MBB and its partners readily adapt by shaping new responsive
processes. So, for example, for a community recovering recently from civil war, the community
may first need trauma experts before it is capable of learning how to mediate. Or, if the needs of
a community relate to disagreements within schools or universities, MBB can share its expertise
to co-design peer mediation programs. If mediation is requested for youthful offenders, MBB
can offer victim-offender mediation or restorative justice. Many potentially violent situations
don't necessitate the immediate need to resolve a specific conflict; rather, tense societal
differences may respond best to working towards greater understanding, connection and
possibilities through Dialogue, lead by trained facilitators. The possibilities are many.
The critical goal is to build capacity within the partner so that it is capable of continuing
its work without external assistance. Change happens slowly. The partner will be the one to
ultimately sustain the programs and then, only because it has achieved its own internal capacity
and structure to continue the work. Sustainability initially requires expert training. However any
training must encompass an express goal to actively and philosophically promote the use of
mediation long after the trainer is gone.
Mediation and its use as a civilizing tool empowers individuals in all walks of society to
resolve their own disputes; this in turn not only strengthens developing a nation's judiciaries, but
also economically empowers the nation and its peoples to make choices for civil peace. The
message is clear: avoid violence or suffer the human and economic consequences. When
16
Mediators Beyond Borders International ("MBB") works to build local skills for peace and promotes
mediation worldwide. 17
The writer recently completed her term as President and Chairman of the Board of Directors of Mediators
Beyond International on March 1. She remains on the Board of Directors.
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mediation filters down from the courts, through business, governmental institutions, and
communities to permeate into general society, mediation is a proven and powerful
transformational tool for sustainable peace.
Respectfully Submitted,
DISCLAIMER The opinions expressed in this Paper are the solely those of the author and do not represent any official
position of Center for the Study of Islam & Democracy (CSID).
Mis en forme : Police :(Par défaut)Times New Roman, 12 pt, Couleur depolice : Noir, Police de script complexe:Times New Roman, 12 pt, Motif :Transparente (Blanc)