Starting in Contracts class in law school, lawyers are conditioned to think of ambiguity in agreements as a bad thing. If a contract is ambiguous, it could be nullified as based on a mutual mistake. (I always think of the case of the two ships named Peerless.) Even if an ambiguous document creates an enforceable contract, parties may be compelled to resort to the laborious practice of examining course of dealing, customs and practice and external evidence of the parties’ intentions, in order to discern the contract’s meaning.
There are times, however, when the parties find it advantageous deliberately to allow some ambiguity to creep into a written document in order to reach agreement in the first place. Case in point, the UN Security Council Resolution approved yesterday regarding the Israeli boarding of a Turkish blockade-running ship, which resulted in at least ten deaths. I have been thinking about this incident quite a bit, and already posted two entries on my political blog about it. Those entries, about people’s tendency to accept pre-conceived narratives before they know all the facts, and about the need for restraint to prevent violence, probably have some relevance to mediation. Reports of the lengthy negotiations required to reach agreement on a Security Council resolution inspire yet another post.
A number of Security Council members have a strong interest in expressing outrage and condemnation of Israel for political reasons. The United States also has an interest in attempting to reach agreement with powerful members of the world community, but would not agree to a resolution directly condemning Israel. To avoid a U.S. veto, what was needed was a resolution that members could point to as a condemnation of Israel, but that the United States could interpret differently. The solution was an agreement that “condemns those acts which resulted in the loss of at least ten civilians and many wounded, and expresses its condolences to their families.”
By condemning the “acts” without condemning anyone by name, the Security Council resolution accomplishes a number of important goals. While clearly expressing condemnation for whatever acts, by whatever party, led to violence, it does not specify what acts or what parties deserve to be condemned. Thus, the resolution allows an investigation to go forward without any pre-conceived conclusions as to who is primarily to blame for the tragedy. By blaming acts and not actors, the resolution could also be seen as separating the people from the problem in true Fisher/Ury fashion. The text also contains valuable concessions for each Security Council member from the others: for example, for Israel’s supporters what could be read as an acknowledgment of Israel’s right to security from its neighbors; for Palestinian supporters, an acknowledgment of the need for the regular movement of goods into Gaza. Thus the resolution provides a framework for future attempts to solve the larger problem. (See my prior post on the power of agreements.) And perhaps most importantly, this carefully cobbled-together document allows its signatories to use it for their own individual purposes. Participants in the Security Council negotiations openly acknowledged that the text can be read in more than one way, and even seemed to take some pride in what lawyers might view as faulty draftsmanship.
Are there times when parties in mediation should be encouraged to paper over their differences in an ambiguous way? The danger is that an ambiguous agreement can lead to future conflicts. The parties may end up back in court asking for an interpretation of their agreement, or the parties may end up in a new conflict because they never really resolved their last one in a clear way. But the value of ambiguity is that it may allow an agreement to be made that could otherwise never be made. And such an agreement–even if it appears to some extent to be an agreement to disagree–may still be more valuable to the parties than unending conflict.