With the death of Nelson Mandela, without doubt the most significant political leader in my lifetime, lots has been written about his impact not only on South Africa but also on the world. And plenty is still to be written. Mandela’s impact comes in many ways large and small, but more importantly it still resonates today. One of the most rewarding experiences in my life has been meeting members of the Truth and Reconciliation Commission. And of course, without Mandela the TRC would not have existed. Mandela is/was a true titan.
Earlier today FOI Charlie Craver (George Washington) sent out an email on the ADR listserv describing his work as a mediator in South Africa while the terms of both the Interim Constitution and the fall 1994 elections were being negotiated. I asked him if he would take the time to discuss his experience further and here’s what he’s sent along.
South Africa was a most unusual country. A small group of wealthy white persons completely dehumanized millions of individuals solely because of their race. When I met with white leaders, it was as if they had no idea how blacks were living. I had a discussion with two Conservative Members of Parliament who emphasized the fact their families had gone back 350 years in South Africa. When I politely suggested that black South Africans had gone back somewhat further, I could tell from the looks on their faces that they had never even considered this fact. Our subsequent discussions became much more productive after this exchange.
The worst day of my professional life was when I spent a day in Soweto. The conditions in many areas of that Township were unconscionable. Many homes had no sewage, no electricity, and minimal water. A huge percentage of residents were unemployed and without monetary support. When I had lunch, I could hardly eat. Although the food was lovely, I could not eat in an area surrounded by so many persons who were treated in such a subhuman manner.
South Africa was able to finally achieve true democracy because of an extraordinary man named Mandela. He spent twenty-seven years of his life in cruel prison cells fighting for the freedom of all South Africans. Although the government tried on several occasions to talk him into accepting something less than true democracy in exchange for his freedom, he made it clear that he would never accept such terms. He and Gandhi were two of the most exceptional leaders of the past century. I only wish that they could have lived on forever to the benefit of all citizens of the entire world.
Today’s report from Human Rights Watch and the ensuing uproar over prosecutor behavior is just the latest attack on a negotiation system that is fundamentally flawed. Human Rights Watch report here and New York Times coverage here
When I studied how lawyers in general negotiate and then assessed the behavior in criminal cases (Cooperating or Caving In: Are Defense Attorneys Shrewd or Exploited in Plea Bargaining Negotiations?), it was remarkable to me that prosecutors and defense attorneys seemed to describe almost a fantasy system where more than 85% of negotiation interactions were described as problem-solving. And, as I explained at the time, repeat play and large case loads do have a significant impact on the relationships between counsel. But the threat of the trial penalty perhaps created a system in which defense attorneys have no choice but to “get along” with prosecutors and, given their power, prosecutors can choose to appear as problem-solving as they like. It appears that in the last ten years, this situation has only become worse.
The Human Rights Watch study shows both the harshness of the trial penalty and the capriciousness of its use by prosecutors. If this is the shadow of the law in which defendents are bargaining, it is a very dark one indeed.
From Mohit Maheshwari, senior editor of the Indian Journal of Arbitration Law:
The Indian Journal of Arbitration Law is a biannual, student-reviewed Journal by the Centre for Advanced Research and Training in Arbitration Law (CARTAL) of National Law University, Jodhpur.
The Journal strives to inculcate the prevalent theories in the field of arbitration with their practical relevance. The editorial board seeks to achieve this feat by including contributions from individuals with varied expertise of practicing arbitration and by focusing on developing trends. In this regard, the board would give due emphasis to the rich thought processes of students of law, who bring to the forefront the innovative academic research currently underway in most law schools all over the world. Inclusion of changing regional trends will play a vital part in understanding the scope and extant of this discipline and would therefore find due importance in the Journal.
The Indian Journal of Arbitration Law is pleased to announce its upcoming issue (Volume 3: Issue 1), which is to be published in March next year on the following theme: “The Rise of Asian Arbitral Institutions and its Impact on International Arbitration.”
We would be happy to review papers on contemporary international arbitration law in the Asia-pacific region, even those that are not specifically related to the above mentioned theme.
The Board of Editors cordially invites original, unpublished submissions for publication in the following categories:
- Book Reviews
Manuscripts may be submitted via email to firstname.lastname@example.org latest by 31st January 2014.
For further details regarding Editorial policy and submission guidelines please visit this site.
The Morris and Stewart Udall Foundation, a federally funded foundation located in Tucson, Az., has an opening for the Director of the US Institute for Environmental Conflict Resolution. You can see the full ad here, and learn more about the foundation here. This is a great gig – federal benefits and good pay. A blurb about the position follows.
The Director provides leadership, vision and strategic direction for the U.S. Institute’s programs and activities. The Director participates as a member of the Udall Foundation’s leadership team, which includes the Executive Director, Director for Finance and Operations, General Counsel, Director DC Office of the Udall Foundation and Director, Education Programs. The leadership team works cooperatively on Foundation-wide management issues. A significant amount of travel will be required. The incumbent will work in the Foundation’s Tucson office.