Mediation in War: Winning Hearts and Minds Using Mediated Condolence Payments

Imagine for a moment that you are an Iraqi civilian, a father or a mother, living in a Baghdad suburb.¹ Your daily life is awash in death, kidnapping, and political infighting, but new opportunities and freedoms too. You may have greater opportunities and more upward mobility than under Saddam Hussein, but you still only have twelve hours per day of electricity for light and air conditioning. You can now own and drive a car, but your life is also completely chaotic and unpredictable — you could be killed for any reason and at any time. You hope and worry for your children's future. Each day, American military forces come through your neighborhood, sometimes passing out medicine and smiling at you, sometimes fighting insurgents block to block, sometimes just driving and shooting wildly, as far as you can tell. You are ambivalent toward them: warily recognizing that their presence may be a marginal benefit but resentful of their occupation and distrustful of their intentions. One tragic day, one of their errant bullets strikes your daughter, killing her instantly. Your ambivalence is now challenged and at a tipping point.

The American response to this tragedy may determine whether you, an Iraqi parent, continue to support the American troops and their efforts to stabilize Iraq or begin to provide aid and comfort to the insurgents, whom you now see as freedom fighters and heroes, or even pick up a weapon and join them in their fight (now your fight) against the Americans.

After your daughter is killed, you travel to the U.S.‐run civil–military operations center where the American military provides compensation to people who have had family members killed or injured or have had property damaged during combat operations. You have questions to ask the Americans. Why did it happen? What are they trying to accomplish in your town? Do they actually feel sorry for the loss they have caused you? Do they even know? But you are given no opportunity to ask those questions, to seek understanding, sympathy, and an apology. Instead, a U.S. military lawyer instructs you to fill out a form listing the number of people killed in your household and any damaged property. Then, without looking up from his desk, the military lawyer hands you $2,500 as a “traditional” Iraqi gesture of sympathy and apology, a “condolence payment” for one death.²

But the aggrieved Iraqi parent seeks compensation as only one facet of a more extensive traditional process for aggrieved parties to engage the party that harmed them in reconciliative dialogue. Instead, the parent receives only the money, money as an apology in lieu of any reconciliative process.

By foregoing a broader, culturally expected reconciliative process, the U.S. military misses valuable opportunities to engage aggrieved Iraqi family members, demonstrate genuine compassion and sympathy, explain their objectives in Iraq, and increase mutual understanding. This missed opportunity sacrifices a chance to potentially win that Iraqi parent's “heart and mind” through dialogue.

For the aggrieved Iraqi, the failure to be engaged in a broad reconciliative process might make the difference in his/her decision to support the American mission (despite his/her family member's death) or to support the insurgency. The impact of this experience occurring again and again across a population could be profound: increasing peace and stability on one hand or exacerbating an ever‐widening chasm between the U.S. military and the Iraqi populace, thereby prolonging the war, on the other. In this article, I suggest one concrete example of how to operationalize the phrase “winning hearts and minds” by implementing a culturally tailored mediation process that would increase the effectiveness of the current condolence payment program in Iraq.

The timing and circumstances for the implementation of such a mediated process could not be more appropriate (regrettably). The American troop “surge” into Baghdad is a last‐ditch strategy shift to secure that city using the Department of Defense's (DOD) newly developed counterinsurgency doctrine. This doctrine was designed to win Iraqi hearts and minds in order to support the U.S. effort and reduce the civilian population's support for the insurgency (Oppel and Cave 2007; Ricks 2007). This article is couched in terms of counterinsurgency success (“winning hearts and minds”) to maximize the likelihood of adoption by DOD policymakers.

In Baghdad, American “surge” troops have begun to live among the Iraqis in small enclaves sprinkled throughout the city (Santora 2007) in the hope that becoming enmeshed in Iraqi society will provide the prerequisite security from which a stable society may emerge. Moreover, provincial reconstruction teams are fanning out through Baghdad and the restive Anbar Province to resurrect political and economic development efforts at the local level (Shanker and Cloud 2007). For the first time since the war began, U.S. troops — particularly in Baghdad — have the doctrine, resources, and contact with Iraqi civilians that would enable the implementation of a mediated condolence payment program as part of their daily engagement activities. If this program cannot be fully implemented before U.S. troops begin to withdraw, it could even be tested as a limited pilot program in a single Baghdad neighborhood conducive to this process.

In this article, I will first examine the legal and precedential backdrop of condolence payments and the importance of process. Next, I will summarize the historical roots of Arab‐Muslim mediation and modern‐day Arab‐Muslim mediation rituals, and describe some important cultural differences as they apply to mediation. I will then describe a possible framework and process for reconciliation‐focused mediation designed to increase the efficiency of the condolence payment process in Iraq. Finally, I will discuss how such a process could be implemented and I will examine the challenges it would present.

Condolence payments, or compensation ex gratia as they are more commonly known in a legal context, have been used by governments when civilian noncombatants are injured or killed incidental to the lawful use of armed force (Leich 1989).³ Though international law does not require such payments for lawful use of armed force, states may pay compensation ex gratia as a compassionate, humane gesture without acknowledging and irrespective of any legal liability (Leich 1989; Reisman 2004).

The United States and other countries have made condolence payments to aggrieved noncombatants on several occasions. In 1988 for example, “prompted by the humanitarian traditions of the United States,” the government compensated Iranian citizens after the U.S.S. Vincennes shot down Iran Air Flight 655 over the Persian Gulf killing all aboard (Leich 1989). Compensation payments were made despite the U.S. conclusion that the actions by the U.S.S. Vincennes were lawful, although “accident[al]” (Leich 1989: 319). In addition to the many strategic political and public relations considerations, W. Michael Reisman, a leading law‐of‐war scholar, advocates that compensation ex gratia should be provided on moral grounds (Reisman 1997, 2004).

While both the moral and strategic rationales for condolence payments are relevant to the war in Iraq, this article focuses on the pragmatic benefits of condolence payments — winning hearts and minds. The moral impetus for compensation is obvious, but from a policy perspective, the U.S. military is most likely to adopt a program that benefits the war effort by directly improving the situation on the ground.

After more than five years of war beginning with the U.S. invasion of Afghanistan in October 2001, the U.S. Army and Marine Corps issued a new counterinsurgency doctrine in December 2006 that draws on the lessons learned in both Afghanistan and Iraq. The doctrine prioritizes the welfare and protection of civilians above aggressive military operations against insurgents and terrorists (Gordon 2006) as the best way to “win the peace” in Iraq. The new doctrine acknowledges that prior military strategy was capable of such accomplishments as the destruction of the Iraqi Republican Guard units but inadequate for rebuilding a country such as Iraq: winning the trust of civilians, restoring key infrastructure, and training local security forces. The new counterinsurgency doctrine recognizes the inherent limitations of aggressive military action in nation building and stability operations and instead instructs military units to act primarily as stabilizing agents.

The doctrine promotes civilian engagement and reconstruction with such slogans as, “The more force used, the less effective it is,” and, “The best weapons for counterinsurgents do not shoot,” and “[Reconstruction] dollars and ballots have more important effect than bombs and bullets” (Headquarters, Department of the Army 2006: 1–27). Successful employment of these counterinsurgency skills is designed to elevate the American military as a trusted partner in the stabilization of Iraq while decreasing the popular support for the insurgency — that is, to win hearts and minds.

In an effort to implement this doctrine, Congress created the Commander's Emergency Response Program (CERP) to provide the U.S. military with flexible funding to “respond to urgent humanitarian relief and reconstruction requirements” in Iraq (Public Law Number 108–106, section 1110). This authority was used to provide compensation ex gratia for Iraqi civilians who were inadvertently injured and to the families of those who were accidentally killed as a result of combat operations (Multinational Forces Iraq 2004a,b). These payments are made by U.S. forces, at the local commanders' discretion, regardless of U.S. fault and irrespective of whether U.S. or hostile forces actually caused the injury or death. Though a local commander may authorize a payment when no U.S. forces were directly involved, payments usually require some U.S. involvement.

Such “condolence payments” were created to “express sympathy and apology” to injured Iraqis and their families but not as settlements of legal claims or admissions of fault by the U.S. government (Multinational Forces Iraq 2004c). In fact, the limitations placed on U.S. personnel as part of the CERP Implementation Guidelines specifically state that “it is crucial to remember that when a commander uses CERP funds it is not acknowledgement of any moral or legal responsibility for someone's death, injury, or damaged property” (Multinational Forces Iraq 2004c). Generally, the Foreign Claims Act and the Federal Tort Claims Act bar combat‐related claims, but allow claims against the U.S. government for noncombat‐related killings, injuries, or property damage (Zielbauer 2007).⁴ Condolence payments are discretionary exceptions to this legal framework and allow compensation in combat‐related incidents. As an exception, condolence payments are cast in terms of sympathy and regret, not compensation.

Condolence payments are also grounded in both Iraqi custom and civil law (Headquarters, Department of the Army 2004; Irani 1999). “[Condolence payments are] common in this part of the world. It means a death payment, a death gratuity, so to speak. It is part of life over here,” said the then Commander of Multinational Forces in Iraq, Lieutenant General Peter Chiarelli in 2006 (Bender 2006).

Chiarelli's assessment is true, at least in dollar terms. During the fiscal year, ending September 30, 2005, the DOD spent $19.7 million on condolence and repair payments (Bender 2006). Per DOD policy, the maximum payment in the case of a death is $2,500; in the case of a serious injury it is $1,000, and for property losses or damage, $500 (Multinational Forces Iraq 2004c). A notable use of the payments was after heavy fighting between U.S. troops and Shiite militia forces in Najaf in October 2004. In one day, one unit authorized and distributed more than $570,000 (Bender 2006).⁵ The goal of each payment, according to Chiarelli, is to foster reconciliation by “preserv[ing] the goodwill of average Iraqis caught in the middle of a vicious guerrilla war” (Bender 2006). In essence, the U.S. military hopes that by using a traditional Iraqi means of reconciliation it will discourage disaffected Iraqi civilians from becoming insurgents.

Unfortunately, the process as it currently stands — condolence payments sans dialogue — is relatively ineffective because it lacks what lies at the core of the traditional Arab practice associated with condolence payments: a reconciliative process. By handing out the payments with minimal dialogue and interaction, America is failing to achieve its counterinsurgency goal in this area, and both the Iraqi population and U.S. troops pay the price.

Interviews and documents suggest the actual process of dispensing condolence payments involves understaffed, rushed U.S. troops taking claims in a chaotic environment and literally handing condolence payments to the victims with no systematic, policy‐level attempt to engage the individual Iraqis in meaningful dialogue or to express actual sympathy on a personal level (Zielbauer 2007; former intelligence officer, telephone communication, June 22, 2006). Such measures reflect the minimum requirement in the Iraqi tradition. Moreover, PowerPoint briefings prepared by U.S. Marine Corps units deployed to Iraq in 2004 and 2005 never address the intangible, emotional process components of the distributions. Instead, they describe in bureaucratic terms the accounting process of distributing funds and warn about the legal prohibition on admitting blame or committing the U.S. government, but never address the human or emotional aspects of the payments.

This is a policy failure that reflects the operational reality of too many claims, too few personnel with little or no ability to speak Arabic, and far too few Arabic translators — not a lack of compassion by the individual service men and women responsible for the payments. A claim is normally processed in a civil‐military operations center where U.S. troops can interact with Iraqi community leaders and civilians. The civil affairs personnel who typically staff such a facility are few in number and have many critical duties beyond condolence payments, and the human aspect is not systematically addressed.

One Marine officer recounted that “payments were a huge problem for us” because of the insufficient personnel and rapid personnel turnover. Because the military strategy had not yet focused on engagement with the Iraqi populace, condolence payments were “often a tenth order priority to the fight” (Name withheld, e‐mail communication, October 23, 2006). Counterinsurgency is a troop‐intensive task (Gordon 2006), and it appears the efficiency of the process is handicapped by an inadequate number of troops.

This lack of process is a missed opportunity for reconciliation. In keeping with the Western model of reconciliation, the U.S. military may likely see the cash payments as the direct equivalent of expressions of sympathy and apology. The policy envisions one dollar of reconciliation for every dollar paid to an aggrieved Iraqi citizen using a Western, “show‐me‐the‐money” paradigm. But even in the United States this paradigm has become outdated. Modern landmark American dispute resolution cases suggest the independent benefit and necessity of a cathartic process in reaching a satisfactory reconciliation (Feinberg 2004; Menkel‐Meadow 1998).

As explained by Kenneth Feinberg, the special master of the September 11th Victim Compensation Fund, about half of the families of the deceased victims demanded a chance to discuss their loss at a compensation hearing. Through direct discussion with the victim's families, he quickly learned that mere payment of a fixed sum was insufficient because the “psychological wounds were too raw. . . . The sense of rage and injustice was too deep.” Mr. Feinberg noted that he became “a psychiatrist, family counselor, grief expert, rabbi, and priest” as the “process was an end in itself.” These hearings provided closure, catharsis, and a sense of “due process” to the participants independent of their compensation. Mr.Feinberg believes these hearings were “integral” to the success of the fund as measured by its 97 percent participation rate as an alternative to litigation (Feinberg 200417; Rabin 2006).

The Dalkon Shield arbitrations, conducted between 1991 and 1997 during the settlement of thousands of product liability suits resulting from injuries caused by faulty intrauterine devices, powerfully demonstrated the necessity of a hearing process. Here, the maximum award was capped and the arbitrations were established to provide a hearing and adjust a predetermined award. Carrie Menkel‐Meadow, one of the arbitrators in that case, described the importance of a victim's “voice” in the process:

In Arab‐Muslim culture, as in our culture, money does not efficiently translate into an apology or expression of sympathy without the chance to voice one's feelings in a cathartic process (Irani 1999).

If the U.S. military could combine condolence payments with traditional rituals of Arab‐Muslim mediation to promote reconciliation and “conflict management,” I believe that the United States could vastly increase the effectiveness of the condolence payment program. (Arab conflict scholars see “resolving” conflict as a Western construct originally created in U.S. labor‐management relations and then applied broadly to business and community contexts. Instead, Arab scholars see conflict “management,”“control,” and “reduction” as more apt terms to describe mediation goals in Arab culture [Irani 1999].) The effectiveness of such a process would be determined according to the outcome of the proposed mediation process: can the U.S. military engage an aggrieved Iraqi through a mediated reconciliative process (express sincere condolence and sympathy, and establish a constructive, value‐generative dialogue between the parties) to prevent the aggrieved Iraqi from supporting the insurgent forces?

The use of modified Arab‐Muslim mediation practices would increase the effectiveness of condolence payments through reconciliation, relationship building, and value‐generation (Irani and Funk 1998). Therefore, by improving the payment distribution process, holding the amount of payment constant, the United States can increase “the reconciliative rate of return”— the amount of reconciliation, understanding, and goodwill gained for exactly the same amount of money expended. A mediated condolence payment process may help prevent today's aggrieved Iraqi parent, sibling, or child from becoming tomorrow's insurgent.

This article must be placed in context. The conventional view of insurgency is as a political struggle for control, legitimacy, and authority where the battlefield is public opinion and support (Headquarters and Department of the Army 2006: 1–1). The insurgency in Iraq is more complicated. In fact, there are at least four wars in Iraq in 2007 (Carter 2007). The first is the insurgency against U.S. troops, which some percentage of Iraqis see as a war of liberation. This is the war that this article is geared toward, and the war that condolence payments are designed to influence. The second is the sectarian civil war ongoing in Iraq between the Sunni and Shiite sects. The third is the background “internecine political struggle between Shiite factions seeking dominance over the south's oil‐rich land and its religiously significant cities.” Finally, the terrorist group al‐Qaida in Iraq conducts spectacular attacks designed to spoil any progress that does happen to emerge on any of these other fronts (Carter 2007).

Mediation is but one way to link the current policy of providing condolence payments to the recently articulated counterinsurgency strategy of winning hearts and minds. Moreover, mediated condolence payments are not a one‐size‐pacifies‐all panacea. Surely condolence payment‐triggered mediation is a wasted effort on those already committed to the insurgency for any number of reasons unrelated to the event that triggered the condolence payment.

Instead, mediation should be targeted to those aggrieved Iraqi parties “on the fence,” parties whose prior support for American objectives of peace and stability is in jeopardy after a violent or destructive incident. Those are the narrow circumstances where mediation may have an effect on insurgent support at an individual level and where it represents an opportunity to move public opinion in America's favor.

The anthropological roots of traditional Arab mediation and reconciliation can be traced back to pre‐Islamic Bedouin practices and tribal laws (Abu‐Nimer 2003; El‐Kosheri 2000; Irani 1999).⁶ Bedouins were pastoral nomads who inhabited the arid land of the Arabian Peninsula. Small communities and competition over scarce resources required fierce familial loyalty to a patriarch who defended the family and mediated disputes (Irani 1999). This “patrilineal kinship system” served as the organizing principle for social life and survival in the harsh desert conditions (Irani 1999).

According to scholars, competition over scarce resources among families and tribes created five dominant features that inform modern‐day Arab‐Muslim mediation: (1) a state of continuous competition over resources resulting in potentially intractable conflict; (2) patron–client patriarchal social structures used to allocate those scarce resources within a group; (3) indigenous rituals of mediation used to ameliorate, manage, and reconcile conflict between groups; (4) Islamic traditions that supplement a cultural predisposition toward dispute resolution by encouraging third‐party intervention based on Koranic teachings and broader Islamic‐influenced values and norms of reconciliation; and (5) a final feature, derived from the previous four, is the central role of honor (Abu‐Nimer 2003; Berry 2005; El‐Kosheri 2000; Irani 1999).

In fact, most traditional Arab‐Muslim dispute resolution rituals focus on the restoration of “the balance of honor,” which includes saving face, preventing shame, and restoring respect (Abu‐Nimer 2003: 98). A primary goal of Arab‐Muslim dispute resolution is the restoration of the status quo (as defined by the existing socioeconomic and tribal hierarchies) through the restoration of honor. As an intangible factor in Arab‐Muslim society, honor is in potentially ample supply so it can be restored without unbalancing the social structure, taxing scare resources, or resorting to costly open warfare (Abu‐Nimer 2003: 96). So, while the root causes of conflict may not be removed, an amicable settlement can be reached. With this in mind, the distinction between Western dispute “resolution” and Arab‐Muslim conflict “management” becomes clearer.

Honor restoration is often achieved through various rituals involving a third‐party mediator recommending a solution to the parties where moral condemnation and symbolic goods are exchanged for forgiveness, reconciliation, restoration of socioeconomic norms (Abu‐Nimer 2003), and a return to the status quo. Third‐party intervention is usually needed because this process requires the “stamp of social approval as its moral weight, where the community says, ‘You have done the right thing’ ” (Abu‐Nimer 2003: 96). In sum, these factors contribute to both a generalized Arab‐Muslim cultural identity, as well to as a deeply rooted predisposition toward “conciliation culture . . . characterized by the existence of a strong communal system to promote amicable settlement of disputes through negotiation/mediation” (El‐Kosheri 1998: 47; see also Berry 2005; Irani 1999). This predisposition is rooted in the concept that family members, community members, or tribes must work together over generations so mediation serves to manage conflict because “the sulh[mediation] ritual is not a zero‐sum game” (Irani and Funk 1998).

Dispute settlement in Arab‐Muslim culture can be grouped into two general forms. The first is resolution based on tribal law or Islamic shari'ah law (Abu‐Nimer 2003). These practices are generally administered by a qadi or shari'ah religious judge and reflect a more strict, formal, and rule‐based arbitrational style (Abu‐Nimer 2003). The second is resolution based on cultural and traditional practices, influenced by shari'ah and customary law, which result in a more flexible, party‐driven mediated process (Abu‐Nimer 2003). Mediation is commonly used in intergroup conflicts, while the arbitral forms (implementing tribal and Islamic law) are used in intragroup conflicts (Abu‐Nimer 2003).

Significant variation exists in dispute‐resolution practices between Arab states and within their constituent tribes and communities (Abu‐Nimer 2003). Mohammed Abu‐Nimer has compared North African and Egyptian tribal arbitrational processes with the dispute‐resolution mechanisms used within Palestinian populations and by Hizbullah‐sponsored programs in Lebanon. Variables that explain differences between the groups' processes include, among others, sectarian affiliation, degree of urbanization, tribalism, socioeconomic development, and existing governmental structures (Abu‐Nimer 2003).

Iraqi dispute resolution has its own distinct traits reflective of its particular culture, history, and governmental and tribal structures. Variation also exists between Iraq's religious sects and diverse cultural groups. Any effective condolence payment mediation strategy would draw on general Arab‐Muslim foundations, but would be tailored to fit each Iraqi context.

Despite the heterogeneous processes used between and within regions and tribes, traditional dispute resolution embodies two main, common components: atwah and sulh (Abu‐Nimer 2003). The purpose of atwah and sulh is to circumvent cycles of violent retribution that threaten societal stability and allow the parties to reconcile through a mediated process (Abu‐Nimer 2003; Berry 2005). As George Irani has noted, “The sulh ritual stresses the close link . . . that injuries between individuals and groups will fester and expand if not acknowledged, repaired, forgiven and transcended” (Irani 1999).

With an eye toward the restoration of honor, atwah involves the paying of financial compensation (diyah) to the aggrieved as a token of apology and condolence (as well as for restitution)⁷ and serves to obligate the aggrieved to enter into a reconciliative process and forego revenge while the process continues (Abu‐Nimer 2003). Atwah and diyah coexist with Islamic shari'ah law and the legal court systems in rural and urban areas, not simply with nomadic tribes. A noteworthy interim phase of truce (hudnah) also exists to prevent retribution before the parties have an opportunity for mediation (Abu‐Nimer 2003). Due to operational constraints (e.g., insufficient personnel), the U.S. military representative may not be able to enter into mediation with an aggrieved Iraqi immediately after the incident, so hudnah would allow the condolence payment to be paid in a timely manner and the parties to subsequently enter into a mediation session without the risk of intervening retribution.

Generally, sulh refers to the substantive process of reconciliation while musalahah (or simply sulhah) refers to the event(s) or ritual(s) surrounding public recognition of reconciliation that concludes the sulh process (Abu‐Nimer 2003; Irani 1999). Despite some differences, all communities' rituals require public recognition of the agreement to restore the social balance and public apology to restore the aggrieved individual's personal honor and dignity (Abu‐Nimer 2003). For example, in Lebanon, Hizbullah‐mediated conflicts hold a musalahah as a “gala” event where all the tribes are invited; in Jordan, rural communities typically have a ceremonial meal where the village is invited to witness the acceptance of the reconciliation; and Palestinians conduct a reconciliation session in the village square to demonstrate that the parties have reconciled and honor has been restored (Abu‐Nimer 2003; Irani 1999). Similar to Western mediation, parties that reach agreement during sulh enter an agreement made binding by the public, communal aspects of the reconciliation ritual and tribal law (Abu‐Nimer 2003; Berry 2005).

Atwah and sulh are powerful, traditional processes that the United States could incorporate into its condolence‐payment practices to promote stability and peace building in Iraq for the benefit of both the U.S. military and Iraqi civilians. Ultimately, if such a process were effectively implemented, it could help in some small way to disrupt the cyclical, retribution‐driven violence wracking Iraq.

Culture is a filter that affects an individual's perception of the world. Cultures differ in predictable ways so some generalized comments about different groups are often applictable to the majority of the population in question (McCrae and Terracciano 2005). (Of course, such cultural generalizations must not be applied blindly for risk of falling into such traps as stereotyping, overattribution, oversimplification, and thinking of culture as prescriptive rather than generally reflective [Berry 2005].) The components of culture (values, norms, institutions, and ideologies) affect the interests, priorities, and negotiating strategies of that culture's members (Brett 2001).

Because cultural knowledge supports culturally competent mediation processes and goals, understanding Iraqi culture should help determine the format and structure of an effective condolence payment mediation process in Iraq, and understanding the differences between U.S. and Iraqi (or Arab‐Muslim) cultures should help identify substantive areas with the greatest potential for value creation and integrative agreement (Brett 2001).

Some specific, large‐scale, heuristic cultural traits of Americans and Arab‐Muslims are indicative or predictive of mediation and negotiation preference, style, and strategy. Overall, American culture is more egalitarian, casteless, and dynamic than most (Hofstede 2001). Scholars of cultural difference argue that Americans are highly “individualistic,” ranking number one out of fifty‐three nations surveyed for that particular characteristic (Hofstede 2001). Another cultural trait underpinning American culture is below‐average “power distance,” which is defined by Gerte Hofstede as “the extent to which the less powerful members of [society] accept and expect that power is distributed unequally” (Hofstede 2001). Low power distance reflects greater equality and cooperation between people at different societal levels. Americans are also one of the most “low context” cultures, which reflects Americans' penchant for direct communication with “explicit” and “readily apparent meaning” (Berry 2005; Brett 2001).

Arab‐Muslim societies reflect very different cultural features: a more stratified, rule‐based, formalistic, and static society (with respect to interclass mobility) (Hofstede 2001). Arab‐Muslim societies present “hierarchical” and “highly stratified” social and cultural relationships as measured by “highly collectivist” and high power distance indices (Berry 2005; Hofstede 2001; Irani 1999). In these societies, “a person is seen as a link in a chain, . . . a chain formulated on the basis of genealogy, descent, or lineality . . . and [is] distinguished not by individuality but by the solidarity” found within such a social system (Abu‐Nimer 2003). Arab‐Muslim cultures are also quite “high context,” reflecting indirect and nuanced communication requiring inference, interpretation and, most critically, an informed cultural knowledge to appropriately infer and interpret the coded communications (Brett 2001).

Another feature of Arab‐Muslim society is the sequestration of women, at least in public life, and certainly during interactions with foreigners, especially members of the U.S. military. While women in Iraq enjoy a more progressive role in society than women in many other Islamic states, this aspect of Islam remains salient in the context of U.S.–Iraqi intercultural mediation.

Cultural differences can produce differing conflict‐resolution patterns — whether society members prefer mediation or direct negotiation, for example (Berry 2005; Irani 1999). American society (“low context,”“individualist”) exhibits a preference for direct negotiation and open disagreement. In an egalitarian culture where roles are not fixed, conflict is seen in terms of its impact on individual rights and responsibilities, and perhaps an opportunity to recast one's position in society (Berry 2005). American dispute resolution tends to reflect a “goal‐directed” process that seeks (and affords) a complete resolution (Berry 2005).

Arab‐Muslim culture reflects different preferences because people in “high context” and “hierarchical” societies will be more predisposed to solutions mediated by third parties (Irani 1999). As a high‐context culture, Arab‐Muslim mediation seeks to avoid direct conflict (sometimes even avoiding face‐to‐face mediation or negotiation until the musalahah) and naturally looks to third parties within their hierarchical society to help manage disputes and diffuse tension (Abu‐Nimer 2003; Berry 2005; Irani 1999). Conflict that results from perceived violations of group norms, which, like a person's position in that society, cannot readily be altered, are best moderated by third‐party intervention (Abu‐Nimer 2003; Berry 2005; Irani 1999). In these cases, restoration of the balance of honor is the most feasible, effective solution to manage the conflict without addressing its root causes and seeking substantive sociocultural changes.

Another Arab‐Muslim concept that supports the restoration of honor without changing the underlying causes of conflict is the patronage‐based system of mediation called wasta (Cunningham and Sarayrah 1993). Wasta is derived from an Arabic verb meaning “to steer conflicting parties toward a middle point” and refers to both the act and the person who mediates (Abu‐Nimer 2003; Cunningham and Sarayrah 1993). Wasta differs from sulh and musalahah in that wasta is informal deal‐brokering that “ameliorates the rigidities” associated with a high‐context, hierarchical society (Cunningham and Sarayrah 1993: 2). Wasta also imposes transaction costs that are associated with Western conceptions of corruption and cronyism (Cunningham and Sarayrah 1993). For example, the party performing the act of wasta may gain promises of future favors; increased honor and status for self, family, tribe, or group; or token compensation (Cunningham and Sarayrah 1993).

Wasta‐influenced mediation serves both to reinforce the hierarchical social system, which creates power imbalances between mediating parties, and to ameliorate the impact of those same power imbalances between the parties, ideally resulting in a mutually beneficial, integrative outcome. This is the case because individual Arabs benefit through the reestablishment of their honor plus some kind of payment or patronage‐based benefit, while the overall society benefits by reinforcing the hierarchical structure (through ritualistic and wasta practices) and restoring group harmony (Berry 2005).

As I discussed earlier, when an individual Iraqi civilian (a noncombatant) is killed or injured in fighting, that individual or his/her family currently may receive a condolence payment, regardless of U.S. fault, at the local U.S. military commanders' discretion. I propose in this article that a claim for a condolence payment should also trigger a mediation process designed to reach a set of reconciliative goals. In light of increasing civilian casualties in Iraq, the U.S. military would be well served by implementing a modified version of the traditional Arab‐Muslim reconciliation processes of atwah, sulh, and musalahah in conjunction with the existing condolence payment program. The opportunity for dialogue would dramatically improve the effectiveness of the strategy to win Iraqi “hearts and minds,” which in turn could help promote peace and stability.

The model of Arab‐Muslim mediation I propose can best be characterized as a culturally tailored melding of mediation‐arbitration with elements of transformative mediation and restorative justice.⁸ Arab‐Muslim societies display substantial variation among the different mechanisms, processes, and rituals used in dispute resolution (Abu‐Nimer 2003). And, although little research (in English) exists about mediation and tribal preferences in Iraq specifically, many of the mechanisms share common traits, including public recognition of honor and wrong, token exchanges, and solutions guided by third‐party intercession.

Keeping with these basic elements, I advocate the reconciliation processes of atwah and sulh, including the public recognition of a musalahah, in light of the rudimentary process of atwah currently being used in the form of condolence payments (diyah). Because the U.S. military is naturally adaptable and method neutral so long as the objectives of peace and stability are furthered, I believe the military would be amenable to using a more traditional Iraqi method. Regardless of the exact processes adopted, the condolence payment system offers an opportunity for the military, working with community leaders, to adopt a broad mediation framework compatible with and reflective of Iraqi cultures and traditions in ways that will improve the effectiveness of the process.

A competently administered process should foster forgiveness and reconciliation, and improve relations between the U.S. military and the Iraqi population. The benefits of mediation for the average Iraqi are several:

• It would allow an aggrieved Iraqi to hear heartfelt sympathy, acknowledgment of his/her loss, and a nonattributional apology in a traditional, familiar framework from a U.S. military representative. This component alone is the most glaring omission of the current process.

• It offers an opportunity to reestablish the balance of honor: self‐respect and community standing. The military would further restore both individual and societal honor merely by respecting and engaging in an Iraqi mediation process on Iraqi terms.

• The aggrieved Iraqi can hopefully direct his/her anger at a person, the U.S. military representative, thereby decreasing feelings of victimization and animosity. This would serve to personalize a previously anonymous harm‐doer. In Arab‐Muslim culture, and likely Western culture as well, overcoming victimization is the most crucial step toward successful reconciliation (Berry 2005; Irani 1999).

• In turn, the aggrieved Iraqi can gain an understanding as to the circumstances surrounding the injury or death at issue, if known.

• More broadly, through dialogue, the military representative can increase the transparency of U.S. goals and intentions in Iraq, which may decrease Iraqi misperception and suspicion while increasing Iraqi cooperation with, and participation in, those goals.

• The aggrieved Iraqi may suggest grassroots methods in which the military could better contribute to peace and stability for him/her and his/her community in general. This has several corollary benefits that underscore the immense value‐generation possible through such a process (as will be discussed further).

Benefits for the United States accrue simply by satisfying the Iraqi goals: improving the Iraqi–U.S. partnership furthers the counterinsurgency goals of stability and the development of civil society. Each Iraqi genuinely and constructively engaged through this process is less likely to be “lost” to the insurgent cause. Generally, any opportunity to have a positive interaction with an Iraqi citizen, even in the regrettable circumstances surrounding condolence payments, is an opportunity to draw the two groups together and develop a more unified purpose, which may reduce future conflict.

Specifically, the new counterinsurgency doctrine stresses the need for military personnel to interact with the civilian population to understand their needs and concerns, and to gather intelligence. An Iraqi who is constructively engaged is more likely to provide useful information. For example, relevant information could pertain to

• an Iraqi's security concerns including reports on extrajudicial or extralegal police action (death squads), or insurgent bases of operations, plans, and tactics;

• political and economic problems and frustrations, for example, involving the implementation and operations of the new Iraqi government, corruption, sectarian hiring biases; and

• valuable “ground truth” information/intelligence including increased cultural understanding, insights into popular Iraqi perceptions, sentiments, politics, and community “atmospherics.”

Such information may lead to improved security and further cooperation.

To mediate effectively, the chosen mediator must represent an appropriate position in the hierarchical, high‐context Arab‐Muslim social structure. Nearly any type of mediator may be appropriate depending on the religious, socioeconomic, and geographic characteristics of the Iraqi party. Possible mediators might include an imam, cleric, mayor, tribal elder, nongovernmental organization worker, a locally respected U.S. military officer, or even a family member (Berry 2005).

The social/community status of the mediator is the most significant consideration. A social “subordinate” cannot mediate for a social “superior” as it would imbalance the important social hierarchy and patronage system (Abu‐Nimer 2003; Irani 1999). By the same token, the mediator should be a respected community figure, to ensure the aggrieved Iraqi feels that the process is meaningful, independent, and credible: an Iraqi process, led by Iraqis for the purpose of Iraqi rehabilitation, but with American participation. This differs significantly from a perfunctory, quota‐driven, shrink‐wrapped, and prescripted DOD mediation program where the Iraqi participants are ushered through like extras on a movie set. An Iraqi‐driven process mitigates the power imbalances between the U.S. military representative and the aggrieved Iraqi. But the attendant risks of such a power imbalance are low because this is merely a cathartic process established to ease grief — no money, property, or promises are at stake where coercive power imbalances may adversely affect the aggrieved Iraqi. The worst‐case scenario from a bad‐process perspective (i.e., security risks and opportunity cost aside) is that the emotional rift is exacerbated. Therefore, an Iraqi‐driven process, led by socially appropriate, competent mediators, will ensure that the process remains legitimate and focused on the ultimate goal of rehabilitating aggrieved Iraqis.⁹

A corollary benefit of choosing respected members of Iraqi society as mediators is to empower pre‐existing social structures, which promotes social stability. For civil society to take hold in Iraq, traditional social structures such as tribal affiliation, family, and religious sect must be reinvigorated. Mediated condolence payments using an appropriate local person show respect for Iraqi custom and reinforce the patronage system. While such social structures may not be democratic, progressive (e.g., from a gender equity standpoint), or even pro‐American, they represent the levers of power in that society essential to arresting its slide into anarchy and thus probably represent the lesser of many evils. If the American military can utilize those social structures toward beneficial, stabilizing ends (mediation and value‐generative solutions) as opposed to destructive, retributive ones (sectarian death squads), mediation may further benefit Iraqi society broadly.

Both Western and Arab‐Muslim traditions support allowing the parties to choose their own mediators (Abu‐Nimer 2003; El‐Kosheri 1998), but typical Western considerations such as independence and impartiality are de‐emphasized in Arab‐Muslim mediation (El‐Kosheri 2000). As discussed previously, the patronage‐based mediation system of wasta also plays a predominant role in choosing a mediator. For example, the parties might determine that a respected elder who can best balance the long‐term interests of the community and possesses the authority to restore the balance of honor is the best mediator (Abu‐Nimer 2003). This elder will not likely receive formal payment but will likely receive intangible benefits (essentially future favors) through the wasta patronage system.

Consistent with all the previously mentioned considerations is indirect mediation. Indirect mediation — where the mediating parties do not initially make face‐to‐face contact — is common in Arab‐Muslim society and is consistent with high‐context Arab‐Muslim culture. Much like “private caucuses” in Western mediation, indirect mediation gives the mediator more leeway to guide the parties and the process. For example, in Palestinian sulh (and also in Hizbullah‐sponsored sulh), the mediators conduct shuttle diplomacy during the mediation. Only during musalahah do the parties have their first face‐to‐face conduct, and then only to publicly acknowledge the results of the sulh (Abu‐Nimer 2003). Indirect mediation would also be beneficial from an administrative standpoint because it would require fewer translators and fewer U.S. military representatives, and would ameliorate security concerns for all parties.

The traditional process of sulh is designed to prevent violent retribution by restoring the wronged party's honor and addressing his or her need for acknowledgment, apology, and sympathy (Irani 1999). Sulh also promotes reconciliation by helping the wronged party overcome his or her perceived victimization and by fostering forgiveness in that party (Irani 1999). The process invokes religious and cultural lessons, values, and norms to guide the parties toward reconciliation (Abu‐Nimer 2003). For example, verses from the Koran may be recited to remind participants of the Islamic values of tolerance, compromise, respect, and coexistence, or a mediator will invoke the need to cease conflict in the interests of future generations (Abu‐Nimer 2003).

The sulh process is highly ritualistic and may require adaptation to suit the condolence payment context. Its transformational benefits should be retained, but the entire formal process cannot realistically be pursued in each instance. For example, musalahah in some areas is a lengthy, four‐part ritual conducted in public and then followed by visits to both parties' homes (Berry 2005). Clearly, this process is unrealistic in this context because of time constraints, because the military representative lacks a “home” for the Iraqi to visit, and, of course, because of all parties' security concerns. But an abbreviated version that extracts the functional purpose of musalahah— public recognition of sulh and the restoration of the Iraqi party's honor — may be appropriate. For example, a public symbol such as a call from the mosque's minaret, an announcement at Friday prayers, the ringing of a bell, or a ribbon hanging in the person's doorway may all satisfy that need for public recognition.¹⁰

Beyond that, intricate process details depend on the local traditions and the circumstances surrounding the Iraqi party's aggrievement. Process variables may include type and degree of injury, the emotional charge of the mediation, what sect (Sunni or Shiite) the victim is, where the victim hails from, the identity of the mediator, the setting of the mediation, the number of parties involved, and the circumstances of the triggering event. At a minimum, formal ground rules used in Western mediation (e.g., not interrupting the other party) may needlessly and artificially stifle the process. Irani describes Arab “conversational culture” as entailing constant interruption to express “empathy and support” when individuals are engaged in meaningful discussion and writes that such interruption is not rude but culturally required (Irani 1999). Similarly, strict time limits for the mediation may likewise be culturally inappropriate and counterproductive.¹¹

The setting of the mediation would also need to take into account issues of safety and convenience. In theory, the mediation could be held at a civil‐military operations center, a local community center, a government building, a town square, a hospital, or an individual's house. Ideally, the setting should be as informal and familiar as security considerations would allow, to put the aggrieved Iraqi at ease and give him or her any “home field advantage” over the military representative. Again, because the military representative does not seek to gain any personal rehabilitation, and because his or her reactive defensiveness should be eliminated through mediation training, such pro‐Iraqi power imbalances are unlikely to detract from the overall outcome.

Modifications to the two‐party process would be required for large‐scale events such as citywide battles or actions causing mass casualties (e.g., a malfunctioning bomb striking a civilian target and causing multiple injuries). Mediation in response to a similar large‐scale event could occur in a group setting akin to a town hall meeting. If such a setting were appropriate and effective, then this method would suffice and increase the number of parties benefited by mediation. However, the mediator's ability to control the process and a substantial power imbalance in terms of numbers of aggrieved parties in one room all aligned against the military representative would support the cautious use of group mediation, at least initially.

Alternatively, large‐scale mediation could be conducted using indirect mediation where a respected community leader represents a greater number of aggrieved Iraqis. As mentioned, indirect mediation is consonant with the highly contextual nature of communications within Arab‐Muslim society. While indirect mediation would certainly simplify the mediation of a large‐scale event, only practice would show whether the reconciliative effect is preserved and if the value‐generative benefits of direct mediation could still be achieved.

From the perspective of the American military, the mediator must understand and abide by two immutable rules: condolence payments are capped and the military representative may not expose the United States to legal liability by admitting legal fault or accepting legal blame. Procedurally, these limitations should be addressed in advance as preconditions to mediation because attention to them could distract from achieving the cathartic goals of this process. The mediator must agree to insulate the U.S. military representative from having to explain these limitations to the Iraqi directly or to apologize for them during mediation, as such fruitless detours could decrease the rapport between the parties and create incurable friction. The American representative's active listening, sincere apology, and expression of condolence must substitute for moral or legal blameworthiness.

Functionally, I believe these limitations will not lessen the benefits that both sides may derive from the process, because such benefits are largely intangible, nonpecuniary, and value additive (e.g., catharsis and restoration of the balance of honor for the Iraqi or gaining ground truth information for the U.S. military). As noted previously, the benefits of a cathartic process independent of monetary recovery are recognized in Western cultures as well. Such a process is evocative of the outcomes sought in restorative justice programs. Through the September 11th Victim Compensation Fund and the Dalkon Shield arbitrations, victims found solace in the hearing process independent of any significant change in recovery. As discussed in the following section, even though the condolence payments are similarly capped, mediation opens the door for a massive value‐generation opportunity.

The component of this process that holds the most constructive opportunity for value generation is the use of interagency mediation teams. While the dollar amount of the condolence payment itself is fixed, local military commanders and other agencies have ample funds available for development projects. Using these funds, an interagency mediation team could unlock the value‐adding ideas generated during mediation and implement them as positive‐sum, community‐based development projects to ameliorate further sources of intractable conflict between the American military and the Iraqi population.

The U.S. military uses similar teams in Iraq and Afghanistan, called provincial reconstruction teams, to help the provincial governments develop “a transparent and sustained capability to govern, promoting increased security and rule of law, promoting political and economic development and providing [civil administration services] necessary to meet the basic needs of the population” (Department of Defense 2004; United States Embassy, Baghdad 2006).

Interagency mediation teams could expand on this concept and include nonmilitary U.S. agencies and international nongovernmental organizations whose vast global nation‐building expertise would support the stability effort. Such interagency mediation teams could act rapidly to help address the needs, concerns, and ideas expressed by the Iraqis during mediation. The teams could include, among others, representatives of the U.S. State Department and United States Agency for International Development (USAID), the International Red Cross and Red Crescent, United Nation's agencies such as the World Health Organization, private or public microfinance lenders (such as the Grameen Bank or the World Bank), or any of the myriad nongovernmental organizations operating in postwar regions like Iraq, Afghanistan, and Africa. As one nonmilitary example, USAID's Office of Conflict Management and Mitigation operates field support teams designed to facilitate restorative justice and grassroots reconciliation processes.

Value creation is possible when these agencies consider needs and interests brought out as part of the mediation process to create proposals for infrastructure development, economic stimulus plans, health and humanitarian relief, community development, education, and skills training. For example, if during a mediation it is discovered that an Iraqi cannot pump well water because of a conflict‐caused injury, the interest of “mechanized access to water” is then identified. The U.S. military representative could then provide funds for a solar‐powered well pump or an electric pump. Beyond the provision of funds, if a local Iraqi contractor can install the pump, then that is all the better. If that engineering capacity does not exist in that Iraqi community, then a nongovernmental organization or USAID could provide the skills training to fill that gap.

This example illustrates how the identification of such a solution represents an opportunity for significant value creation beyond the current payment‐only process. Moreover, value is created not only for the aggrieved Iraqi but potentially for the entire community served by the now automated well, engineering employment, and possibly skills training.

If an Iraqi could see his/her concerns or ideas acted on quickly, it would demonstrate sincerity and possibly quell the frustration that many Iraqis feel about the lack of progress. Iraqis would also see tangible, immediate benefits arising from their constructive relationship with the American military. Moreover, ideas conceived by Iraqis are likely to be more productive uses of reconstruction funds and are likely to be better received by the population at large than centralized, top‐down reconstruction efforts. Overall, a constructive mediation process and the use of interagency teams would have outsized effects because the goodwill and improved relationships would likely ripple through Iraqi society and social consciousness, promoting improved individual and communitywide U.S.–Iraqi relations.

The mediated condolence payment process I propose was not part of the original “shock and awe” war plan, nor has it been part of DOD's subsequent occupation strategy. In terms of doctrine and personnel, such a program was simply not how the U.S. planned to fight large‐scale wars. All of that is changing now with the appointment of a new commander in Iraq, General David H. Petraeus and his “warrior‐intellectual” advisors, who together authored the new counterinsurgency doctrine as a significant departure from prior Pentagon strategy (Ricks 2007). Although implementing a mediated condolence payment program on a wide scale presents substantial difficulties, its implementation in targeted locations most amenable to the program would only require refinements at the margins because mediated payments dovetail with current operations as part of the ongoing civilian–military engagement strategy.

The U.S. military members best suited to implement this mediation process are civil affairs personnel. In both the Army and Marine Corps, civil affairs personnel bridge the gap between the large military units and the local populace. Civil affairs personnel are highly qualified; they have the appropriate language skills, have received cultural sensitivity training, and have a wealth of local experience gained through military operations, military exchange programs, and foreign academic studies. Civil affairs personnel are the military's primary nation builders; they are experts at infrastructure development projects geared toward public health, rule‐of‐law establishment and security sector reform, public administration and governance, economic stimulus and stability, and education (Headquarters, Department of the Army 2003). In fact, civil affairs teams are trained in and capable of conducting mediations between “former belligerents in a post‐conflict environment” (Headquarters, Department of the Army 2003).

Civil affairs personnel operate civil–military operations centers, which are designed to be the loci of interaction between civilians and the U.S. military. These civil–military operations centers also coordinate American and coalition military forces, U.S. and foreign governmental agencies (e.g., State Department, Federal Bureau of Investigation, Central Intelligence Agency, British Foreign Office), local Iraqi military units and civilian agencies, and intragovernmental (e.g., U.N., World Bank) and nongovernmental organizations (Headquarters, Department of the Army 2003, 2006).

The paradigmatic example of civil–military cooperation was the provincial reconstruction teams fielded in Afghanistan in 2003. These interagency teams were staffed by forces from the United States and NATO (North Atlantic Treaty Organization), USAID and U.S. State Department personnel, as well as representatives from multinational and diplomatic agencies (Headquarters, Department of the Army 2006). These teams were instrumental in extending the reach of the Afghan government's civil authority and infrastructure development initiatives to the lawless provinces. In outward appearance, these small teams (between fifty and three hundred personnel) were not military units outwardly bristling with weapons. Rather, they operated, when possible, in a low‐profile manner to better integrate with indigenous populations (Headquarters, Department of the Army 2006). Such a model could be extended to Iraq through the interagency mediation teams I have proposed utilizing civil affairs personnel as the backbone and the civil‐military operations center to coordinate the constituent stakeholders as described previously.

A mediated condolence payment process would face some significant challenges: personnel issues, language issues, and security concerns, among others. Interviews suggest a major impediment to developing any meaningful mediation process in this context would be the insufficient number of U.S. military personnel involved in the payment process and their rapid turnover.

Civil affairs personnel are extremely limited in number, which limits the capacity for civil–military interface during lengthy and substantial occupations like Iraq. But DOD has demonstrated its commitment to increasing American military capacity with a plan to increase civil affairs personnel by 33 percent over the near term (Department of Defense 2006). In addition to civil affairs personnel, certain types of intelligence officers would also be well suited for leading interagency mediation teams. The new counterinsurgency manual even envisions small infantry units coordinating with interagency and nongovernmental personnel and provides a host of coordination recommendations to that end (Headquarters, Department of the Army 2006).

High personnel turnover must be prevented because it would diminish the consistency of the treatment and outcomes for aggrieved parties, which would threaten the legitimacy of the entire program. Consistency of personnel would help ameliorate inconsistency in payments, but a uniform payment policy for all Army and Marine Corps units is essential to any effective payment program. Inconsistent or even arbitrary standards for payments have already generated significant resentment among Iraqis, which is exactly the opposite of what is intended (Zielbauer 2007). In similar situations, some families would be paid and their neighbors would not. From the inconsistent to the arbitrary, sometimes payments are not paid simply because the military lawyers refuses (Zielbauer 2007). If the Iraqi parties cannot trust the process as fair and consistent, the very basis of the payments is undermined, and any mediation program is unlikely to be successful.

In addition, competent intercultural mediation requires a period of acculturation. Research shows expatriates often report an “acculturation curve” where they adapt over time to new cultural environments (Hofstede 2001). During this time, the mediating U.S. military representatives would acclimatize to the cultural nuances in any specific region and could hone their culture‐specific knowledge. Thus, to implement a successful program, military personnel would need to remain in specific areas for longer periods of time to maximize their effectiveness during mediations.

Language capacity for U.S. military personnel will remain a central issue that determines the success or failure of any broad nation‐stabilizing campaign. As Hofstede writes, language is a “vehicle” for our thoughts, but it is a capricious vehicle because the idiosyncrasies of local languages are the essence of its culture (Hofstede 2001). Because Iraqi culture is high context, understanding the nuances and subtleties of an Iraqi's communications is essential to understanding his or her true intentions and desires. Therefore, to the extent possible and practicable, efforts should be made to conduct the mediation primarily in Arabic. Employing an Arabic‐centric process as a ground rule would best capture those nuances and allow for more accurate decoding of high‐context communications (Hofstede 2001). Mediating in Arabic would also demonstrate a willingness to adapt culturally on the part of the military representative. In the interests of retaining an Arabic‐centric meaning and tone in the mediation, the fluency of the military representative and/or the aptitude of the translator would be paramount. The various military language schools continue to increase the number of Arabic linguists in response to their increased demand in Iraq, but dramatic shortages still remain.

In addition to language skills, intercultural competence training would also be an essential component of this mediation program (Hofstede 2001). Civil affairs personnel training has been sensitive to language, culture, and acculturation concerns, and may only require supplemental mediation refresher training. However, these specialized troops are so few in number that their knowledge and impact is diluted when spread over a battlefield the size of Iraq. Instead, the Army and Marine Corps are finally responding to a lack of systematized cultural training within the regular ground forces. For example, the U.S. Marine Corps Center for Advanced Operational Culture Learning aims to provide operationally tailored culture and language training to Marines.¹² This center is designed to arm the average soldier or Marine with the cultural knowledge essential to winning hearts and minds in places like Iraq. This knowledge will, it is hoped, translate into an improvement in the hundreds of daily soldier–civilian interactions so critical to gaining the trust and confidence of Iraqi civilians.

The security threat to all parties is also ever present, for U.S. troops operating in large Iraqi populations, for Arabic translators, and for Iraqi parties and mediators who may be attacked as “sympathizers” for interacting and engaging with U.S. forces. The new counterinsurgency doctrine requires troops to live among the population rather than hunker down inside remote bases, which already exposes U.S. military personnel and their paid translators to increased security risks (Headquarters, Department of the Army 2006).

But in the mediated condolence payment context, it is the risk to Iraqi parties and mediators that is of central concern and cannot be understated. Insurgents routinely attack and intimidate Iraqi sympathizers who cooperate with Americans to discourage any such cooperation. This may frustrate the Arab‐Muslim tradition of public recognition of sulh, musalahah, which is so essential to the restoration of the balance of honor. Public restoration clearly raises the specter that mediation could trigger new intimidation and violence by insurgents. To prevent such attacks, the mediation process may need to minimize the formal public recognition component or begin in areas with the strongest U.S. military presence (presently the greater Baghdad area) or homogenous areas like Sadr City to ensure that the mediation process does not spawn the wholesale murder of its Iraqi participants.

Another challenge for the mediation process that I have proposed is the potential inability of male U.S. military representatives to mediate with some female Iraqi civilians because of the Islamic tradition of sequestering women from men outside of their families. Although Iraqi society is more secularly progressive than many other Arab societies (Saudi Arabia, for example), in some areas it would be awkward for an American man to mediate directly with an Iraqi women if she has a man (e.g., a mature son) who may do so instead. In such areas where women are sequestered, they may not gain the cathartic benefits of mediation and may continue to harbor unmediated enmity. This could be overcome by specifically training and deploying enough female U.S. military representatives, either dedicated female civil affairs personnel or personnel on loan from other fields, to meet the anticipated need. No structural policy impediments currently in place would prevent female civil affairs officers from participating in the mediation process — all Army and Marine Corps civil affairs specialties, units, and command positions are open to women. Moreover, the military commonly trains women from outside specialties to fill gender‐sensitive roles. For example, at vehicle checkpoints, all‐male infantry units commonly use specially trained female troops from noninfantry units to conduct searches of Iraqi women behind privacy curtains. Alternatively, to the extent that indirect mediation preserves the reconciliative effectiveness and creates value‐generative benefits, it may be used to reach out to aggrieved Iraqi women in cases and locales where an insufficient number of appropriately trained female personnel are available.

The difficulty of conducting formal fact‐finding is another potentially major challenge for this process. Both Western and Arab‐Muslim mediations anticipate fact‐finding as an integral part of the process, although the levels of importance assigned to fact‐finding in Western mediation processes varies according to the orientations of the mediator and the parties. In the particular context of condolence payments in Iraq, however, fact‐finding may not be possible. The U.S. military condolence payment system is not designed (or allowed) to apportion or accept fault, so a retrospective, factual inquiry is not strictly necessary. Moreover, condolence payments are not conditioned on whose bullet or bomb killed a civilian — payment occurs irrespective of individual fault.

To be clear, in a combat situation between the U.S. military and insurgents, the insurgency has shown no quarter to civilians, so there should be no presumption that the U.S. military is the offending party. Often, the military will conduct an investigation for internal disciplinary purposes and to refine practices and procedures to prevent innocents from being injured in the future, but some Iraqi casualties may remain unknown to U.S. military personnel until the condolence payment request is submitted. In sum, if known, the facts and circumstances could be provided for the reconciliative benefit of closure but are not prerequisite to mediation.

Finally, this process does not include the participation of the soldiers or Marines who were present at the time of the aggrieving incident, so details of the incident may be lacking. For logistical, operational, and morale reasons, the participation of those witnesses would be unworkable. Given that indirect mediation in Arab‐Muslim culture is common, if the representative is able to be sincere, that should meet the emotional requirement of humanizing the U.S. military. Recent research shows that the more heartfelt an apology is, the more it reduces barriers to settlement (Robbennolt 2006), so that is the gold standard — sincerity.¹³ The risk that military representatives will display insincerity as a result of fatigue and burnout must be carefully controlled using personnel rotations, rest, psychological counseling, and other measures to ensure that these personnel are able to represent the United States as effectively as possible, although personnel rotations must be carefully considered to ensure the U.S. military representatives retain their hard‐earned acculturation.

Counterinsurgency is warfare waged at the tipping point of public opinion. In Iraq today, America is learning the limits of hard military force as a tool for winning the peace. The military has responded by developing a new counterinsurgency doctrine designed to win the peace by “winning hearts and minds.” To do this, the U.S. military now seeks to connect with the Iraqi population to better provide civilians with security and stability. Effectively dispensing condolence payments is one way to prevent today's U.S. supporter from becoming tomorrow's insurgent supporter after an aggrieving incident.

Compensation ex gratia for injured noncombatant civilians is not required by international law, but moral and strategic considerations support such payments. In Iraq, the U.S. military has begun a condolence payment compensation program reflecting an indigenous custom of financial compensation as a token of sympathy. This program, however, falls short by failing to constructively engage the population in any reconciliative dialogue. The condolence payments alone do not have the same reconciliative effectiveness without a corresponding cathartic process.

Instead, if the American military could implement a culturally tailored, traditional Arab‐Muslim mediation process to support broad reconciliative goals, it would vastly increase the opportunity for constructive engagement. Such a mediation process is one tangible example of how the U.S. military could operationalize its new counterinsurgency doctrine: to prevent today's aggrieved Iraqi from becoming tomorrow's insurgent. Of course, mediation alone will not win a war, but it is both a step in the right direction and in step with America's new military doctrine.

Reconciliative mediation would not require an increase in the amount of the condolence payments from current levels but would improve their “reconciliative rate of return.” This is achieved by restoring the balance of honor for aggrieved Iraqis, enhancing mutual understanding, and identifying sources of value‐creation using interagency mediation teams.

Interagency mediation teams should be broadly constituted — drawing on humanitarian aid and development groups, nongovernmental organizations, and other U.S. government agencies — to implement the beneficial ideas presented by the Iraqis during mediation. Such teams could rapidly respond to requests by the aggrieved Iraqis, thus demonstrating the tangible benefits of cooperating with the United States.

Insufficient personnel, insufficient levels of language skills among those personnel, and security concerns are among the challenges that confront the military in implementing such a process, but they can be overcome. If the United States intends to engage in broad nation‐building missions in the future, as it has in Iraq, policymakers and politicians should recognize what the troops already know — nation building is “troop intensive.” Through a concerted effort, the appropriate mix of personnel, language, and cultural savvy within the U.S. military can be cultivated or, where it already exists, tailored toward mediation so as to implement the new counterinsurgency doctrine, thus contributing to peace and stability in postwar conflicts. While security in Iraq is an ever‐present concern, indirect mediation and procedural adaptations to fit the local security needs (as well as local preferences and customs) can ameliorate those risks.

The mediation of the condolence payment process supports nation building in postconflict societies for the same moral, pragmatic, and strategic reasons that compensation ex gratia exists in the first place: to gain the support of the civilian populace and to lessen the burden of conflict on them, thereby promoting peace and stability. The independent value of a cathartic, reconciliative, culturally tailored process can play a role beyond Iraq, such as in ongoing operations in Afghanistan, and future nation‐building operations.

If America's remaining time in Iraq is too short to implement such a program at a policy level, sufficient time may remain to begin a limited pilot program in Baghdad alone, or even a single Baghdad neighborhood, as a proof of concept. Looking out beyond Iraq, mediated condolence payments could be added to the counterinsurgency playbook of the United States, its NATO allies, and other U.N. powers as a crucial component of civil‐military engagement and postconflict stability operations.