In Dispute Resolution, Try Going to the Top

By — on / Dispute Resolution

When two parties are attempting to resolve a contentious dispute, the most effective peacemakers may be those at the highest levels.

That’s the lesson from recent productive talks between President Obama and Afghan leader Hamid Karzai on the issue of rules for detaining terrorism suspects.

U.S. Detainees in Afghanistan

This past March, as the United States began making plans to draw down forces in Afghanistan, officials from the two nations drafted a memorandum of understanding in which the Americans promised to turn over all Afghan detainees held at a detention facility in Parwan, an American-build detention center in Afghanistan. The memorandum stipulated that Afghanistan had set up an administration detention regime for the hundreds of detainees.

The Americans expected that Afghanistan, as a signatory to the “Second Additional Protocol” to the Geneva Convention, would recognize that it had a right to humanely detain people inherent in an armed conflict, write Rubin and Schorzman. American officials, along with NATO commander General John R. Allen, were concerned that, without an administrative detention process, dangerous insurgents might be released and return to the battlefield.

Yet, some senior Afghan legal experts insisted that the Constitution of Afghanistan did not allow for the indefinite detention of prisoners who could not be tried because of a lack of admissible evidence, report Alissa J. Rubin and Douglas Schorzman in the New York Times.

U.S. and NATO Concerns

Amid these concerns, the United States halted its transfer of the remaining 650 Parwan detainees, all captured since a memorandum of understanding was signed—a move that the Afghans condemned as a violation of both the memorandum and their sovereignty. Over several weeks, the dispute escalated to the point that it began to undermine diplomatic relations, people involved in the discussions told the Times. Protests across the Muslim world in response to an inflammatory anti-Muslim video produced in the United States fanned the flames of the conflict.

Resolving the Dispute

In an attempt to resolve the dispute, Obama and Karzai engaged in negotiations via video teleconference on the night of September 19.

In cordial talks, the two leaders reportedly made progress on the issue of administrative detention, as well as on other issues. Immediately after the “clear and frank” talks with Obama, Karzai ordered his judiciary “to come up with a legal framework that allows us to keep those people who pose a serious security threat,” his spokesman told the Times.

A senior American official characterized the conversation between Obama and Karzai as “a serious and positive discussion” that lasted longer in the evening than planned and avoided the vitriol of the previous several weeks.

The relatively short negotiation suggests that when a dispute gets heated, it may be worthwhile to bring the top leaders on both sides together for a brief tete-a-tete—even if they are halfway across the world from each other.

Whether they are CEOs or heads of state, top leaders may be able to cut through the rancor that has infected discussion among their subordinates and, thanks to their decision-making authority, may be able to identify and implement solutions that less powerful parties cannot.

In this FREE special report from the Program on Negotiation at Harvard Law School,  Dispute Resolution, Working Together Toward Conflict Resolution on the Job and at Home, the editors of Negotiation Briefings cull valuable negotiation strategies and curate popular content to provide you with a concise guide on how to improve your dispute resolution skills.

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