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Fact-findingFiguring out what led to a crime or conflict

Fact-finding aims to answer questions like: What exactly happened? Who was affected and how? Who might be responsible? Why did the people involved do what they did? Parties to a crime or conflict typically have a pressing need for information in the aftermath of a harmful incident – especially when what took place is unclear. Fact-finding can help the parties uncover both forensic (factual) and narrative (personal) aspects of the truth, depending on the type of questions used and the context in which they are asked.

Why is this a fundamental dispute resolution practice?

Fact-finding is fundamental when the events that led up to a crime or conflict are unclear or disputed by the parties involved. In these cases, developing a shared understanding of what happened facilitates empathetic communication and is an important prerequisite to building consensus towards an agreement.

It is also important because without the possibility of invoking an extensive fact-finding process, one party may be exposed to opportunistic behavior or manipulation on the part of the other, against which they have no recourse. In the majority of disputes, however, an understanding of what happened is shared by both parties, or is similar enough that fact-finding can be conducted through a simple (facilitated) dialogue and exchange of views.

Extensive fact-finding should only be used when necessary, as it tends to be adversarial (pitting one version of truth against the other) and carries the risk of driving the parties further apart. In cases where important technical or science-intensive issues are at stake, joint fact-finding is more effective at generating trust and mutual understanding between the parties than independent fact-finding.

What are the active ingredients of fact-finding?

Parties working together to understand what happened.

This can be facilitated by a neutral third party, who helps parties with differing viewpoints and interests to jointly gather and analyse data, compare perspectives, develop common assumptions, and use the information they have collected to reach decisions together.

Only engaging in extensive fact-finding when necessary.

Extensive, independent fact-finding is most helpful as an optional form of recourse against parties who are unwilling to participate in joint fact-finding and/or might otherwise act opportunistically or manipulatively to avoid responsibility. This may be the case in legal problems involving fraud, crime, or accidents, for example.

What are people actually doing to make this happen?

Parties

Parties are working together or independently to find out what happened. This can occur in a dialogue in which each party has the chance to share their perspective, ask questions of the other, and exchange information. It can also occur as part of a joint fact-finding process, in which a technical expert or mediator is involved to help the parties uncover new information or collect and analyse existing evidence in a collaborative way.

Parties

Mediators and facilitators

Mediators and technical experts are facilitating the fact-finding process by helping the parties to build consensus around and understand differences in perspectives about what took place. Depending on the nature of the crime or conflict, this may mean going with the parties to the location where the relevant events occurred, offering independent technical expertise, or creating a shared timeline or “learning” history of events, in which differing perspectives on what happened are put side-by-side and reconciled to the extent possible. They can also help the parties to uncover the narrative truth of what happened by creating a safe space for dialogue about their emotional experiences of the event.

Mediators and facilitators

Police and prosecutors

Police and prosecutors are helping the parties to understand the forensic (factual) truth of what happened by conducting a thorough investigation shortly after the crime or conflict occurs. This may involve evidence collection and selection, reading and copying documents or electronic communications between the parties, or interviewing witnesses. They are then mapping the facts and/or presenting the evidence they collected in a transparent and unbiased way.

Police and prosecutors

Judges and justice leaders

Judges and justice leaders are are making it possible for technical experts to present facts jointly - for example using the “hot tub” method of giving evidence in court or through a joint report - rather than through adversarial cross-examination.

Judges and justice leaders

Innovators

Innovators are creating products and services that facilitate transparent and unbiased investigation and evidence collection. This may include investigative journalism, which is sometimes needed to bring institutional or systemic harm to light.

Innovators

What indicators can be used to monitor this practice?

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Accuracy

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Transparency

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A shared understanding of what happened

What makes fact-finding difficult?

Behavioral barriers

Parties to a crime or conflict may be inclined to hide facts from one another, particularly if they behaved opportunistically or with the intention to cause harm. In an adversarial environment, they are also likely to interpret ambiguous information in a self-serving way, which can make it harder to reach consensus about what happened.

Cost barriers

Extensive fact-finding, for example through independent experts hired by each party, is expensive and often acts as a barrier to settlements and agreements.

More Resources

Steven Rares, How Concurrent Expert Evidence Aids Understanding Issues, Federal Court of Australia: Digital Law Library (2013)
Gregory Norton, Searching for Soap Trees: Norwegian Refugee Council’s Land Dispute Resolution Process in Liberia, Norwegian Refugee Council (2011)
John Ehrmann and Barabara Stinson, Joint Fact-Finding and the Use of Technical Experts in The Consensus Building Handbook: A Comprehensive Guide to Reaching an Agreement (1999)
Dan Burk, When Scientists Act Like Lawyers: The Problem of Adversary Science, Jurimetrics 33 (1993)
John Allison, Five Ways to Keep Disputes Out of Court, Harvard Business Review (1990)

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Fact-findingFiguring out what led to a crime or conflict

Why is this a fundamental dispute resolution practice?

What are the active ingredients of fact-finding?

Parties working together to understand what happened.

Only engaging in extensive fact-finding when necessary.

What are people actually doing to make this happen?

What indicators can be used to monitor this practice?

What makes fact-finding difficult?

Behavioral barriers

Cost barriers

More Resources

Justice Dashboard

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