A. Background
Occupy Central (“OC”) has been promoted as a peaceful civil disobedience movement in Hong Kong where the leaders of OC mobilize masses of protestors to blockade Central District to fight for what they consider as genuine universal suffrage. The leaders of OC have advocated the campaign for almost a year and it was planned to start on 1 October 2014. However, it was brought forward at midnight of 28 September 2014 when clashes started between the police and the students activists (Hong Kong Federation of Students and Scholarism) in the evening at the Government Headquarters. Thousands of people rushed to Admiralty to support the students during that day. The police confronted thousands of people in different areas in Admiralty and Central when pepper spray and tear gas were used to disperse the crowds. Since 28 September, the blockades have spread from Admiralty and Central, to Causeway Bay and Mongkok, whilst another group of protestors have started occupying Canton Road and Haiphong Road in Tsim Sha Tsui on the third day of OC. As a result, the disturbances to the general public have become increasingly obvious. The Fire Services Department reported that ambulances and emergency services had difficulties in arriving Central within the targeted time for emergency call. Before 3 October, most of the protestors remained generally self-restrained, peaceful without any major outbreaks of violence, and thus the police had slackened its efforts to disperse the crowds.
Unfortunately, going into Day 6 of the campaign, scuffles started in the afternoon in Mongkok when a group of anti-Occupy Central citizens started removing barriers on the road placed by the OC protestors. In the evening, the whole protest scene in Mongkok has descended into violence when both the OC and the anti-OC camps broke through police lines and started fighting. The student activists called off an upcoming meeting with the Chief Secretary to discuss the electoral reform as they considered that the police had not stepped up their efforts sufficiently to protect the OC protestors. The meeting was intended as a first key step on both sides to resolve the dispute arising from the electoral reform. The outbreak of violence, unfortunately, shattered this slightest hope for solution.
So far, the protestors have been emphasizing their demands of the resignation of the Chief Executive, Mr Leung Chun Ying and Beijing’s retraction of the framework for electoral reform. However, the Government deemed this an impossible condition. All Hong Kong people are now asking, “How can this impasse be resolved?”
B. Conflict Diagnosis
1. Power versus power
Before proceeding to solve the problem, perhaps it will be more helpful to conduct a thorough conflict diagnosis of the current situation. There are a number of approaches for diagnosing conflicts and the “Interests/Rights/Power” model can be adopted here (“IRP Model”).
The IRP Model focuses on the processes and approaches that disputants use to resolve disputes rather than categorizing or assessing the conflicts themselves. An interest-based approach, which is heavily based on consensus, addresses the disputants’ needs, concerns, hopes and fears. The disputants can reach a solution when their respective interests are satisfied in the solution.
Rights-based approach refers to the assertion of rights of a disputant over the other. There are different sources of rights, which may originate from laws, conventions, practices, policies or contracts. A right-based approach in resolving conflicts involves adversarial processes, such as litigation in court and it leads to promoting one disputant’s rights over the other and minimizing the other party’s rights.
As for the power-based approach, it involves the parties bringing all the resources they bear at their disposal and using it against the other party in an attempt to win. Power-based processes are highly adversarial and oppressive where disputants use threats, intimidation, physical force or violence, strikes or lockouts. The advantages of the power-based approach are that it is quick to use when there is no need for either disputant to consult the other. One disputant can take everything they want. However, the drawbacks are that it often leads to a win-lose situation, and the solution often is not durable. Also, more and more power is needed over time to achieve the same result. The losing party never agrees that the outcome is fair.
The events of 28 September reflected a power-based approach on the part of the disputants. After the student leader Joshua Wong was arrested, and clashes happened between the police and the student activists at the Government headquarters, many people rushed there to support the students. The police used its power to stop people moving from Admiralty MTR station to the Government Headquarters and the crowd reacted and sought to power playing by occupying Connaught Road. Tensions escalated when police used pepper spray but their efforts were proved unhelpful when many more people flocked in from different directions. The situation further escalated when the police resorted to using the tear gas against the protesters. Undoubtedly, the outcome is a lose-lose situation for not only the Government, but the police, the protestors and most importantly, the general public. When both disputants combat against each other using the power based approach, it often fails to bring a resolution.
The IRP Model takes the form of a stairway: interests at the bottom, rights in the middle and power on the top. When disputants step up from the interests with the type of process they are using to resolve the conflicts, two things happen: the costs of conflict spiral upwards, causing time spent to be longer, emotional energy to be expended, stress soars, reputation is damaged and relationships are terminated. In the process, disputants lose control and the final decision usually fails to meet the needs and interests of the third party and other disputants.
2. The Blame Frame
When things go wrong, disputants often adopt an approach of blame. All the conversations revolve around the question of who is to blame. Who made the mistake? Who should apologize? Blaming involves judging and it inhibits the disputants’ ability to learn what indeed causes the problem and stifles their ability to come up with solutions. When blame is in play, disputants become defensive and emotional, and endless arguments and interruptions often ensue. Problem-solving involves the changing of the disputants’ mindset from blame to contribution. Contribution refers to the deliberation by the disputants as to their respective role in leading to the conflict situation and how they could change it. Stepping away from the blame frame to contribution allow the disputants to understand their contribution and take responsibility for the outcome. It is only when this shift is made that the parties will move forward and into a problem-solving mindset.
The Government and the police were heavily blamed for the disastrous occurrences on 28 September. However, given the events on the day, the final outcome was brought about by numerous actions and reactions between the protestors and the police/Government throughout the day. Can either side blatantly deny their role in the development at all?
It is clear that no one is a winner in this situation. The relationship between the protestors and the Government was left in ruins, as both refused to communicate.
Subsequently, the police sent teams of negotiators who attempted to convince the protestors to move away from the main roads in Admiralty, but they were turned away. The conciliatory gestures were untaken and abused and the current prospects of the Government achieving a breakthrough are low. The situation called for the assistance of a third party to help and facilitate the disputants to solve the problem.
C. How can the concepts of mediation be applied?
Under the Mediation Ordinance (Cap 620 of the Laws of Hong Kong), Mediation is a structured process, comprising one or more sessions when one or more impartial individuals, without adjudicating the dispute, assisting the parties to
The definition stated above is comprised of numerous key concepts which can be used in resolving the current problem between the Government and the protestors. These three following aspects need to be addressed before the mediation process can be commenced.
1. The independent third party neutral
Both the Government and the protestors had once indicated their willingness to enter into dialogue. However, the doors are shut tight after the outbreak of violence. How could the parties be brought back to the negotiation table?
Mediation is a third party assisted negotiation and the intervention of the third party neutral is appropriate in this situation. An essential requirement of the Mediator is that he must be trusted by all the stakeholders. As far as the protestors are concerned, whilst the HKFS and the OC leaders are the major players in the movement, there are many other groups of people who have emphasized that they are not represented by anybody. These people are stakeholders (will be explained in the later paragraphs), but they will not easily accept representation by someone whom they do not know. This neutral has to have status in Hong Kong, and must be known and respected by the general public. He has to be independent from either the Government, the key players in OC or political parties so that he can be accepted by all the stakeholders. Further, as there are many stakeholders involved, the Mediator could be assisted by a team of mediators who will support the leading Mediator in speaking with the stakeholders when the process is convened.
D. The process
1. The stakeholders
Identifying all the stakeholders is the first step that the neutral should do when he convenes the process. Apart from the HKFS, the OC leaders, and various political parties, masses of people occupying different districts are also the stakeholders in this dispute. They have already denied representation by any single body, their voices need to be heard and need to be represented. Hence, the Mediator should meet with these people and engage them. This is the stakeholders assessment conducted by the Mediator where the first group of the stakeholders is identified. Depending on the circumstances, this first group may possibly point the Mediator in the direction of a second group of stakeholders as well. This exercise will enable the Mediator to come up with a matrix of the major categories of stakeholders and ensure that their major concerns could be expressed. The Mediator will come up with a list of issues and concerns of the stakeholders. He needs to explain to them that their role is to influence the outcome of the ordeal. In doing so, this also ensures that any solution comes up in the meeting will be accepted and enforced by all the people.
2. Mode of meeting
One of the key features of mediation is flexibility. Under the facilitative model of mediation, the participants can meet in a joint meeting with all the parties sitting around the table. There are also times when the Mediator will meet with each group in caucus, private sessions. This enables the Mediator to obtain key information that a group wishes to share privately with the Mediator. For the current dispute, it is of utmost importance that the Mediator shall hold separate pre-mediation meetings with each group of stakeholders. There are different purposes for the pre-mediation session:
The pre-mediation session prepares the parties for a joint meeting. The Mediator needs to assess whether and when the stakeholders are ready for the meeting. They are ready when they demonstrate to the Mediator their commitment to the process, and they are willing to shift from positional attitude to a problem-solving mindset. They must also be willing to listen to the other stakeholders’ concerns, and they must attempt to understand and think of options to solve the problem.
3. Venue and mode – open forum or closed doors
The HKFS requested an open dialogue with the Chief Secretary. As explained previously, meeting under the scrutiny of the public will not bring about fruitful progress. In the spotlight, each stakeholder fears losing face in the eyes of public when they back down. They have little choice and can only repeat their positions and demands, which will lead to arguments and debate. They will not be able to listen and understand the other parties with this adversarial approach. This will eventually lead to criticism that each side lacks sincerity. To address the concerns that the public or members of the stakeholders’ need to be informed, the stakeholders can agree on the contents to be reported to their group so they can continue to consult their respective constituency.
The key features of mediation are neutrality, confidentiality and sustainability. The stakeholders need to feel physically and emotionally safe to participate in the meeting. Hence, it is more appropriate to conduct the meeting behind closed doors at a venue which all the stakeholders perceive to be neutral.
4. Ground rules
The purpose of the mediation session is communication and understanding between the participants. Further, the parties need to commit to stay in the process without threatening to leave prematurely so that they have enough time to discuss the issues. Two basic ground rules are proposed:
To protect the confidentiality of the meeting, each participant needs to commit to the principle of fulfilling their obligations to report to their constituencies. All the stakeholders should agree to the scope and the contents to be reported. The parties are also at liberty to agree to further ground rules before the meeting begins.
E. The substance issues
In view of the current circumstances, there are two major sets of issues to be discussed, the immediate ones which need to be dealt with as a matter of urgency and another group of middle to long term ones which relate to the way forward of the electoral reform.
The immediate issues that the stakeholders need to deal with are as follows:
As for the middle to long term issues, that could be:
F. Interests of the stakeholders
The facilitative model of mediation focuses on the interests of the disputants as the basis of problem-solving. The interests of each stakeholder are its needs, concerns, fears and aspirations which are separate from its positions and demands. Their respective interests need to be identified. Problem-solving options can be generated based on the common interests of the stakeholders. Without being able to communicate with the parties, here are a list of possible interests of the relevant stakeholders:
|
The general public |
HKFS and Occupy Central |
The Hong Kong Government/ |
|
Daily life resumes normal |
Autonomy |
Daily life of the general public resumes normal |
|
Security and personal safety |
Democracy and universal suffrage |
Fear of bad precedent |
|
Autonomy |
Accountability to their respective constituencies |
Law and order |
|
Respect |
Respect |
Authority |
|
Peace of mind |
Improved livelihood in the future |
Respect and recognition by the public |
|
Democracy and universal suffrage |
|
National security |
|
Time |
|
Time |
With the above interests identified, the stakeholders will be able to generate options and bundle them into different packages. The protestors have indicated their fear that the Government will not honour the agreement in electoral reform once the protestors have dispersed. In response to this problem, different stakeholders could consider and agree on contingent pacts that accept differing assumptions about the future. Further, dispute handling procedures and mechanism could be built in order to address those concerns.
G. Conclusion
The problem that Hong Kong faces now is unprecedented. Whilst mediation has been widely used since the Civil Justice Reforms in 2009, its application in dealing with public disputes is yet to be explored. During this critical moment, when all the stakeholders have come to a dangerous impasse, all parties must consider responding to the problem through mediation. Although there is little knowledge and experience of applying it locally, the breakdown in relationship and communication as well as the lack of alternatives make it a viable approach to adopt.
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