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Recommendations on land problems further explained

The recommended interventions in the guideline are developed according to the Guideline Method. More information and further elaboration on the selected interventions can be found on this page.

Click here for the Guideline Method

Fit-for-purpose land mapping

Interventions and evidence

During the orientation process of the available literature, we identified the following interventions as most plausible for documenting in ownership or use of land disputes:

  • Land title registration
  • Fit-for-purpose land mapping

 

Land title registration

 

Land title registration is a system for recording land rights in a public register created and guaranteed by the state. “It is the entry into the registry that gives land ownership legal validity, guaranteed by the state and thus all entries in the register are prima facie evidence of the actual legal status of the land (Deininger, 2003, cited in Abdulai and Owusu-Ansah, 2014; Abdulai & Ochien, 2017, p. 34).

 

Land title registration is generally considered to be in the interest of governments because it allows them to “for example, sell that information to the public, which means it constitutes a source of revenue. Indeed, historically, land taxation was the main reason for the introduction of land registration in various countries several centuries ago. The landownership database also facilitates land activities or transactions thereby reducing transactions costs” (Talibe Abdulai & Ochien, 2017, p. 42).

 

It has also been argued to increase tenure security for land owners and workers. “Land registration is embraced as the panacea to landownership insecurity and it is premised on the notion that there is land ownership security in the advanced world because every developed country has a comprehensive land registration system. Thus, efforts at securing land ownership have often concentrated on the implementation of land registration policies and programmes” (Talibe Abdulai & Ochien, p. 25). These efforts first gained momentum in the 1970s, “when the World Bank (1974) commenced to recommend registration of traditional land rights (in order to secure such rights) as a critical precondition for investment and modern economic development in, particularly, Africa” (Abdulai & Ochien, 2017, p. 31)

 

However, recent studies have called into question the link between land title registration and land ownership security in the developing world. “These studies have resulted in two schools of thoughts on the link between land registration and ownership security. At one end of the spectrum is a school of thought that posits that registration assures security.” Some members of this school have gone so far as to argue “that land registration prevents the occurrence of disputes over land, which significantly reduces the work of the state-sponsored courts” (Larsson 1991; Abdulai & Ochien, 2017, p. 31)

 

“At the other end of the spectrum is another school of thought which argues that land registration per se cannot guarantee land ownership security. Indeed, allied to the latter school of thought is another argument that in some circumstances, land registration can be a source of land disputes or ownership insecurity” (Abdulai & Ochien, 2017, p. 40).

 

In light of these conflicting views, it is important to note that while land title registration may be the baseline approach to documentation, it is not the only way to record land use and ownership rights. The tendency to use the words “documentation” and “registration” interchangeably is misleading “since land can be surveyed and maps produced (an effective tool that clarifies land boundaries), which is a form of documentation without registering the land” (Abdulai & Ochien, 2017, p. 36). “It is common knowledge that there is documentary evidence of various things but such evidence is not registered or recorded in a central system controlled by the state” (Abdulai & Ochien, 2017, p. 37).

 

Fit-for-purpose land mapping

 

Fit-for-purpose (FFP) land mapping was developed based on the idea that, “A simple indication of properties and boundaries is often adequate to meet basic land administration needs in less developed countries” (Kadaster). Designed to meet the needs of people and the environment, the FFP approach “argues for cost-effective, time-efficient, transparent, scalable and participatory land administration, including participatory surveying, volunteered land administration and crowdsourcing” (Molendijk et al., 2018, p. 3).

 

“The FFP approach has three fundamental characteristics. Firstly, there is a focus on the purpose and then how to design the means for achieving it as well as possible; secondly, it requires flexibility in designing the means to meet the current constraints; and, thirdly, it emphasizes the perspective of incremental improvement to provide continuity. Enemark et al. further describe the three core components of the FFP concept: the spatial, the legal, and the institutional frameworks. Each of these components includes the relevant flexibility to meet the actual needs of today and can be incrementally improved over time in response to societal needs and available financial resources. The FFP approach recommends the use of ‘visual boundaries’ to identify the delineation of land rights” (FIG/WB, 2014; Lemmen & Molendijk, 2017, p. 11).

 

“While conventional cadastral systems use documentation of the surveyed land parcels

as a basis for entering rights into a land registry, the FFP approach [typically] uses aerial or satellite imagery in the field to identify, delineate, and adjudicate the visible land parcel / spatial unit boundaries, and the rights are determined and entered directly into a Register” (Enemark et al.,  2015, p. 10). Data may also be collected through low-cost, participatory surveying made possible by technology. “This is basically a participatory approach undertaken by locally trained land officers and involving all stakeholders” (Enemark et al.,  2015, p. 10). In Colombia for example, a FFP app was developed to enable “farmers, together with locally trained ‘grass root’ surveyors, to walk the perimeter of their parcels and to collect the coordinates of the perimeters of their parcels themselves” using a GPS antenna or handheld-low-accuracy device (Molendijk et al., 2018, p. 9). 

 

The FFP approach aims to account for all people-land relationships. These include formal ownership rights such as private ownership and leasehold, as well possession, occupancy, and more social or customary tenure types (Molendijk et al. 2018; Enemark et al. 2015). To create an overview of the existing situation, it is important to document “overlapping claims, disputes and conflicts. It is crucial to get an overview of parcels or boundaries under dispute and at the same time an overview of all the areas not under dispute” (Molendijk et al., 2018, p. 8).

 

After field data collection, the data should be checked for completeness. In the Colombian example, boundaries with coordinates within certain tolerances were certified with an “acta de colindancia” [boundary certificate]. This certificate would include a visual of the boundary’s location as well as the names, photographs and ID photographs of the neighbours, and a space for their signatures (Molendijk et al. 2018).

 

Ideally, FTP land mapping is both transparent and participatory in that it enables the community to follow the land surveying remotely and gather to review the data collected. In the Colombian example, the data was collected offline and transparently uploaded to the cloud-based GIS environment (Molendijk et al. 2018). This allowed “the community members gather to view all the collected data on a map and discuss and reconcile the results” (Molendijk et al., 2018, p. 12). During the public inspection process, government representatives have the opportunity to ask land owners and claimants to present their ID to prove that it matched the ID photographed in the field. “If two neighbours agree[d] on the location of their common boundary the “acta de colindancia” [could] be signed…If there [were] overlaps between the two polygons observed by the two neighbours there [was] a dispute” (Molendijk et al., 2018, p. 12). Complaints made at the public inspection can lead to agreed changes in the collected data.

For parties looking to prevent an ownership or use of land dispute, is documenting through land title registration or fit-for-purpose land mapping more effective for well-being?

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

 

For this PICO question, keywords used in the search strategy are: land dispute resolution; land documentation; land title registration; fit-for-purpose land mapping; fit-for-purpose land administration

The main sources of evidence used for this particular subject are:

  • Mathilde Molendijk et al., Land and Peace in Colombia: FFP Methodology for Field Data Collection and Data Handling, Paper prepared for presentation at the 2018 World Bank Conference on Land and Poverty (2018)
  • Benito Arruñada, Evolving Practices in Land Demarcation, Land Use Policy 77 (2018)
  • Raymond Abdulai and Edward Ochieng, Land Registration and Landownership Security: An Examination of the Underpinning Principles of Registration, Property Management 35 (2017)
  • Christiaan Lemmen and Mathilde Molendijk, Low Cost, Post Conflict Cadastre with Modern Technology, Paper prepared for presentation at the 2017 World Bank Conference on Land and Poverty (2017)
  • Stig Enemark, Robin Mclaren, and Christiaan Lemmen, Fit-for-Purpose Land Administration Guiding Principles (2015)

 

“Land and Peace in Colombia: FFP Methodology for Field Data Collection and Data Handling” is a paper prepared by Mathilde Molendijk – a manager at Kadaster International responsible for projects in the field of land administration in Latin America – and a number of colleagues for presentation at the 2018 World Bank Conference on Land and Poverty. It presents the methodology for a small empirical study in which FFP land mapping was tested at scale following a successful field test in Colombia. This field test is described in detail in a similar paper written by Molendijk and professor of land information modeling Christiaan Lemmen and presented at the World Bank Conference on Land and Poverty the previous year, “Low Cost, Post Conflict Cadastre with Modern Technology.” Kadaster is a land registry and mapping (government) agency based in the Netherlands. Although Kadaster designed and developed the FFP land mapping technology described in both papers and is therefore invested in its success, the agency is also involved in land registration and therefore not ostensibly biased in favor of or against either approach to land administration (especially because they are not mutually exclusive). According to the GRADE method, the quality of evidence in the 2017 report can be classified as low, while the quality of evidence in the 2018 report can be classified as moderate (due to its larger scale).

 

“Evolving Practices in Land Demarcation” is an academic article by professor of business organisation Benito Arruñada. It can be considered a small empirical study given that it draws conclusions based on empirical analyses and a review of World Bank project data. The author does not appear biased and the article’s publication in Land Use Policy – “The International Journal Covering All Aspects of Land Use” – gives his findings additional credibility. According to the GRADE method, the quality of evidence can be classified as low to moderate.

 

“Land Registration and Landownership Security: An Examination of the Underpinning Principles of Registration” is an academic article by senior lecturer in real estate and urban development Raymond Abdulai and professor of project management Edward Ochieng. It is a literature review and can therefore be considered an expert opinion. Its findings are well-supported in that they are based on a number of empirical studies demonstrating that land registration per se cannot guarantee land ownership security. Its publication in Property Management gives these findings additional credibility. According to the GRADE method, the quality of evidence can be classified as low.

 

“Fit-for-Purpose Land Administration Guiding Principles” is a report written by land management professor (and president of the International Federation of Surveyors) Stig Enemark, land administration expert Robin McClaren, and professor of land information modeling Christiaan Lemmen. The report was initiated by UN Habitat and the Global Land Tool Network and managed by Kadaster. This institutional support, and the fact that it was reviewed by a multitude of international land administration experts, increases the quality of evidence by one level, according to the GRADE method. Still, the report is an expert opinion based on experience – not an empirical study – and therefore the quality of evidence can be classified as low (leveled up from very low).

 

Quality of evidence and research gap

 

According to our research method, we grade the evidence comparing land title registration and FTP land mapping for ownership and use of land disputes as low. There is a dearth of medium to large scale empirical research on this topic, as well as meta-analyses or systematic reviews. This may be explained by the reality that national buy-in is typically required to test (let alone implement) land documentation interventions, making expert opinions based on case studies and small empirical studies the most practical forms of research.

Recommendation

 

Land title registration

Fit-for-purpose (FFP) land mapping

Land title registration supports land ownership security. As evidence of legal ownership, title registration systems “can play a role in the resolution of land ownership disputes in the state-sponsored courts or can contribute to security as registered land title under the system can be tended as evidence of legal ownership” (Abdulai & Ochien, 2016, p. 37). 


By “facilitat[ing] communication, information sharing, networking and transactions,” land title registration can benefit owners, users, and purchasers of land economically. As a record keeping system, land registration helps overcome problems of asymmetrical information and moral hazard and “facilitates land activities or transactions, thereby reducing transactions costs” (Abdulai & Ochien, 2016, p. 38). 


Documentation through land title registration can facilitate the resolution of ownership and use of land disputes, which has tangible and psychological benefits for the parties involved. “Undeniably, when ownership is documented, it is normally easy to prove when it is disputed” (Abdulai & Ochien, 2016, p. 37).


Lands owners and users who register their land may benefit from additional safeguards against fraud or mistakes made in the land documentation process. “In some jurisdictions, the state indemnifies or pays compensation (from an indemnity fund set up) to owners who suffer any loss due to negligence, mistakes, errors and omissions from title registration as well as fraud unless the owners contributed substantially to the occurrence of these events” (Abdulai & Ochien, p. 34).

Unlike land title registration, fit-for-purpose land mapping is inclusive of all rights and people-land relationships. These include, for example: ownership, possession, occupation, informal, and disputes. This inclusivity increases its reliability (Molendijk et al. 2018).


Mobile GIS, a commonly used technology in FFP land mapping, “has the potential to reverse the present crisis of growing unrecorded land and property and incomplete land administration in developing economies. As a system of record and data collection methodology for land administration, ArcGIS and mobile apps can help migrate a huge number of property-owning citizens into national legal systems in a very short period of time, both securing citizen tenure rights and increasing property tax revenue to properly fund government” (Lemmen & Molendijk, 2017, p. 4).


FFP land mapping allows data collection to be done in an integrated way, meaning administrative data (the identity of the land owner or claimant) can be linked to spatial data (the surveyed land parcels) from the field. This makes the land rights documentation process efficient for the parties involved. “The perimeter [of the surveyed land] is stored as a closed polygon together with the type of right or people-land relationship…combined with a photo and ID of the owner or claimant. In this way the names and other relevant attributes and polygons (representing measured parcels) can be linked already in the field. Digital photos can be attached; existing documents like passports and IDs, selfies, photos of groups of owners; photos of existing legal documents like deeds or titles; photos of e.g. electricity bills liking somehow the person(s) to the parcel; and photos of the boundaries can all be linked to the walked and observed polygon” (Molendijk et al., 2018, p. 10).


Local participation in FFP land mapping creates community ownership of the process and increases trust in the data collected (Molendijk et al. 2018). ”The real and expensive collection of boundary data with field evidence can be done with boys and girls from the village and the land right holders” (Molendijk et al., 2018, p. 17). “The first results from the pilots in the field demonstrate that this approach works: young people (with strong legs able to walk the perimeters of parcels and spatial units in mountainous and other areas in the Colombia) could be educated in several hours, be tested, and consequently then use the App and collect the spatial and administrative data together with the farmers…Young people were eager to join and performed the land surveys well” (Molendijk et al., 2018, p. 8).


FFP land mapping clarifies and documents land boundaries to traditional owners and users of land, making them easier to enforce. “When boundaries are clearly defined, land boundary disputes would be minimal; accurate and precise well-defined boundaries are easier to enforce and cost less to protect as they are easily observable by other community members. This ingredient is very critical when one considers Africa, particularly, in the traditional system of land ownership where, generally, land boundaries are shown on the ground by a combination of streams/rivers, old trees/hedges, valleys, hills and paths. Certainly, this has sustainability problems as, for instance, trees can perish and paths can vanish. The solution to this problem, requires a scientific way of demarcating land boundaries – land surveying and pillaring to produce permanent boundary lines and maps or plans, which ensures that there is documentation of the boundaries, but doing this does not necessarily require land registration” (Abdulai & Ochien, 2016, p. 36)


FFP land mapping empowers users and owners of land with increased understanding of their rights. “It should be noted that often farmers do not know the legal status of their specific land rights, whether it is ownership, possession, occupation or informal tenure. Collected evidence in the field brings clarity (actas confirming buying/selling and available titles or tax invoices). It is better to ask farmers for this type of evidence, then to ask them for the type of relation between people and land” (Molendijk et al., 2018, p. 17)


The transparent nature of FFP land mapping makes it possible to achieve both physical and legal demarcation (meaning it is more likely to be respected by the community as a whole). “Crucially, social consensus allows legal demarcation to produce stronger, in rem, effects. It is only after the land has been legally demarcated that boundaries are “conclusive”—meaning they have legal force in rem: that is, they have effects against third parties. For example, without legal demarcation, whatever the physical demarcation accompanying a deed and whatever the promises given by the seller with respect to boundaries, neighbors can still enforce in rem their boundary claims against the buyer, who, if neighbors are shown right in court, will at most have an in personam claim against the seller—and possibly the surveyor—for any deficiencies with respect to the promised demarcation” (p. 9). 


FFP land mapping helps local authorities understand the precise nature of ownership and use of land disputes in their jurisdiction, which may help them to prioritize cases for resolution. “During the collection process in the field, a dispute means the walking of and the creation of overlaps between polygons. Those overlaps are mapped and the corresponding authorities know exactly where to solve which type of land related conflict (Molendijk et al., 2018, p. 11).


FFP land mapping allows comparison with legally known data to the extent that any is available, which facilitates land title certification and makes the documentation process as a whole more comprehensive. “This means a comparison of the agreed and collected data with the cadastral and land registry data. If this comparison concludes that the data can be legally accepted the certificate of title can be handed over and registration and cadastral map updating can be performed” (Molendijk et al., 2018, p. 13).


FFP land mapping can facilitate land registration. “Rwanda is a particularly good example where a nationwide systematic land registration started after piloting in 2009 and was completed in only four years. Boundaries of spatial units were identified on prints of aerial photos in a highly participatory approach

using para-professionals (locally trained land officers). This reduced the need for conventional surveying techniques to a minimum. The highly efficient approach resulted in about 10 million spatial units being registered with an average unit cost of around US$ 6 per parcel” (Enemark et al., 2015, p. 11).


“The FFP approach has been successfully implemented nationwide in a number of developing countries and the results provide excellent best practice for other countries to use. New FFP approaches have recently been tested in implementing countrywide land administration solutions in countries such as Rwanda, Ethiopia and Kyrgzstan” (Enemark et al., 2015, p. 11).

 

Land title registration

Fit-for-purpose (FFP) land mapping

Land title registration does not guarantee land ownership security. “Empirical evidence from various studies conducted in countries like Ghana (Abdulai and Owusu-Ansah, 2014; Abdulai, 2010; Abdulai et al., 2007), Cambodia and Rwanda (Durand-Lasserve and Payne, 2006), Afghanistan (World Bank, 2006), Philippines and Honduras (World Bank, 2005), Egypt (Sims, 2002), India (Banerjee, 2002), Ivory Coast (Stamm, 2000), Uganda (McAuslan, 2000), and Kenya (McAuslan, 2000; Migot-Adholla et al., 1994), has shown that landownership security cannot be assured via land registration” (Abdulai & Ochien, p. 32). Studies conducted in unauthorized settlements in Mexico (Angel et al., 2006), Tanzania (Kironde, 2006), South Africa (Allanic, 2003) and Peru (Ramirez et al., 2005; Kagawa and Turkstra, 2002) came to the same conclusion that “ownership security did not emanate from land registration” (Abdulai & Ochien, 2016, p. 32). 


Land registration can disadvantage poor and vulnerable land owners (and users) and create opportunities for their displacement. “Land registration can disadvantage poor people who lose the security provided by the traditional systems of landownership whilst being unable to complete the bureaucratic process of land registration – in worst cases, it has created opportunities for the powerful in society to override traditional systems of ownership, thereby, displacing vulnerable owners” (Durand-Lasserve and Payne, 2006) (Abdulai & Ochien, 2016, p. 32). 


Land registration can create “new sources of conflicts if formal land rights are assigned without due recognition of traditional arrangements” (Abdulai & Ochien, 2016, p. 32). “The statutory system is less than legitimate to many smallholders, especially for dispute resolution. The incorporation of customary forms of evidence into the formal land tenure system (land law) is a fundamental step in making such evidence legitimate within the formal system, and the formal system legitimate to smallholders” (Uruh, 2006, p. 31). Customary forms of evidence may include unregistered documentary evidence, physical possession and occupation of the land, agroforestry trees, and oral evidence from witnesses (Abdulai & Ochien 2016; Unruh 2006). 


Registered land ownership is not necessarily given more evidentiary weight than traditional or unregistered land ownership in court. “Title Registration is not the only source of legal ownership. In most jurisdictions in Africa, although proof of traditional land ownership is not based on registration or any form of documentation, such ownership is recognised by their legal systems” (Abdulai & Ochien, 2016, p. 37). A 2014 study found that “out of the 91 land cases involving registered landownership that were filed in state-sponsored courts and resolved over a ten-year period, 43 cases (47 per cent) were decided in favour of registered ownership, whilst 48 cases (53 per cent) were decided in favour of unregistered ownership…State-sponsored courts will normally examine the facts of each case based on the available evidence in order to establish to the requisite standard, the truth about who actually owns the land to ensure that there is no miscarriage of justice; thus, judgements are delivered based on the truth about ownership and not the fact of registration” (Abdulai & Owusu-Ansah, 2014) (Talibe Abdulai & Ochien, 2016, p. 36).


The association of land registration and land ownership security may incentivize fraud and contribute to land tenure insecurity. “The continuous promotion of land registration based on the assertion that it makes title indefeasible or assures security can be an incentive for unscrupulous people to employ whatever fraudulent means available to register other people’s landed property rights in their names, which is a recipe for confusion and can rather be a source of insecurity” (Abdulai & Ochien, 2016, p. 42). “


Land title registration initiatives often fail because they try to implement universal or mandatory land titling and demarcation without taking into consideration the trade-offs for the land owners involved. “Due to the presence of fixed per-parcel demarcation costs, more extensive and precise demarcation (as well as titling, generally) is often only suitable for higher value land.” (Arruñada, 2018, p. 6). “In the presence of fixed costs and the absence of externalities, it is individually optimal to subject low-value land to less precise demarcation, and it is socially optimal to allow voluntary demarcation. On the contrary, mandatory demarcation may lead to under-titling and over-demarcation” (Arruñada, 2018, p. 28). 


Land title registration initiatives “often pay little, if any, attention to the legal dimension of land demarcation.” “In order for demarcation to produce effects on third parties, such party-led physical demarcation must be accepted by all other interested parties—which in this case mainly means the neighbors of each particular parcel” (Arruñada, 2018, p. 6).

Fit-for-purpose land mapping “is not driven by state of the art positioning and surveying technology. This requires a mindset change across land professionals, recognition of the benefits of change, and an effective change change management strategy driven by strong leadership” (Enemark et al., 2015, p. 11). Absent this political will, FFP land mapping may not be possible.


Effective capacity development is fundamental to the success of the FFP land mapping. This requires extra effort on the part of government agencies and civil society. “Society must understand, through well-targeted communication campaigns that this simpler, less expensive, and highly participatory approach is just as effective and secure as conventional surveying methodologies. Formal organisations, such as government agencies, private sector and community based organisations need to ensure awareness and up-to-date skills of their members and staff” (Enemark et al., 2015, p. 12). 


Legislative reform may be necessary “to provide the required flexibility to accommodate the FFP approach. Changes to laws can be problematic and time consuming and politicians need to be well briefed on the need for change” (Enemark et al., 2015, p. 12).

Taken together, the available research suggests that whereas land title registration provides evidence of ownership that is economically beneficial to the state and some owners and users of land, it does not guarantee land tenure security and can even be a source of conflict and greater insecurity. The transparent, flexible and inclusive nature of fit-for-purpose (FFP) land mapping makes it more conducive to the well-being of the parties to ownership and use of land disputes, particularly in developing countries.

 

This is evidenced by the fact that the desirable outcomes of FFP land mapping clearly outweigh those of land title registration. According to the research, FFP land mapping: accounts for all people-land relationships; clarifies land boundaries and rights to traditional owners and users of land (as well as local authorities); is more likely to be trusted and respected by third parties in the community; and is less vulnerable to fraudulent or exploitative land claims that generate conflict. FFP land mapping also has a clear track record of success, at least in developing countries where land documentation is most often lacking. 

 

Meanwhile, the undesirable outcomes of land title registration clearly outweigh those of FFP land mapping. The political challenges presented by FFP land mapping may be worth bearing when one considers the failures of land title registration in developing countries and the risk that it results in the displacement of poor and/or traditional owners and users of land.  Therefore, FFP land mapping for prevention and resolution of ownership or use of land disputes is preferred.

Taking into account the balance of outcomes, the value of a flexible, transparent, and inclusive approach to land rights documentation in developing countries, and the quality and consistency of the evidence, we make the following recommendation: For parties to an ownership or use of land dispute, FFP land mapping is more conducive to well-being than land title registration.

Joint fact-finding

Interventions and evidence

During the orientation process of the available literature, we identified the following interventions as most plausible for fact-finding in ownership and use of land disputes:

  • Independent fact-finding

  • Joint fact-finding facilitated by a neutral third party

 

“At first glance, most land conflicts seem to be simple and straightforward; some really are. Many, however, are not that easy to comprehend. The difficulty generally arises when the second party begins telling its side of the story. Quickly, contradictions between the two descriptions of the same land dispute arise and it becomes difficult to tell who is right and who is wrong” (Wehrmann, 2017, p. 52).

 

Furthermore, “land disputes by their very nature contain a certain amount of technical legal content and relevant factual background and each party needs to be aware of the general situation in order to reach an informed personal decision as to settlement” (Norton, 2011, p. 18).

 

To reconcile differences in perspective, consolidate technical information relevant to the dispute, and address public charges of inaccuracy, fact-finding is needed (Ehrmann & Stinson, 1999, p. 380). Existing research suggests that there are two primary ways for parties to an ownership and use of land dispute to approach this component of dispute resolution.

 

Independent fact-finding 

 

Independent fact-finding occurs when parties to a dispute collect evidence of their position independently or recruit one or more expert witnesses to testify on their behalf. 

 

“The ‘fuel’ for disputes is often data about the likely impact – on a particular group of citizens, on someone’s financial investment, or on the environment – of a decision. Parties with differing interests, therefore, will quite naturally look to scientific experts to influence the outcome of a dispute. This is particularly true when parties are engaged in litigation, in which a judge or jury makes the decision…In these traditional decision-making arenas, proponents and opponents of a project might each hire technical experts to provide analyses, forecasts, and impact assessments to support or undermine a proposed project” (Ehrmann & Stinson, 1999, p. 376).

 

In a common law courtroom setting, expert evidence is tested through cross-examination by the parties’ respective lawyers (Rares, 2013). This approach to fact-finding is sometimes referred to as “adversary science” because of the way it pits scientific or technical experts against one another in order to resolve the dispute.

 

“The essence of this system is that lawyers for opposing parties have the responsibility to present every piece of evidence and make every legal argument that might possibly benefit their clients. Pretrial discovery and other litigation procedures are designed to leave no stone unturned in the search for relevant evidence. By training, temperament, professional duty, and frequently by client expectation, attorneys tend to exploit these procedures to the fullest and to persevere as long as any hope remains. In fact, each lawyer has an obligation to be as zealous an advocate as possible, even – sometimes especially – to the detriment of discovering the truth and of resolving conflicts to the satisfaction of both parties.” (Allison, 1990).

 

Joint fact-finding facilitated by a neutral third party

 

“Joint fact-finding offers an alternative to the process of adversary science when important technical or science-intensive issues are at stake. Joint fact-finding is a central component of many consensus building processes; it extends the interest-based, cooperative efforts of parties engaged in consensus building into the realm of information gathering and scientific analysis. In joint fact-finding, stakeholders with differing viewpoints and interests work together to develop data and information, analyze facts and forecasts, develop common assumptions and informed opinion, and, finally, use the information they have developed to reach decisions together” (Ehrmann & Stinson, 1999, p. 376).

 

“Joint fact-finding in a consensus process assumes that parties with conflicting interests will interpret technical material differently but that they ought to gather and develop facts and forecasts together. Specifically, stakeholders should jointly determine the issues of concern that require technical analysis, the questions that the experts ought to ask (and who those experts should be), the best process for gathering information and answering questions, the limitations of the various analytical methods that will be used, and the best way of proceeding once a scientific or technical analysis is completed” (Ehrmann & Stinson, 1999, p. 377).

 

“Joint fact-finding should increase, not detract from, the fairness of negotiation. For example, it would not be appropriate for a set of parties representing one view to pay for an outside expert, unless the arrangement were acceptable to all the participants. Also, a fact-finding process that is forced on participants or seems to have no connection to the main deliberations will only exacerbate the tendency for parties to polarize on the issues involved” (Ehrmann & Stinson, 1999, p. 385).

 

“Join fact-finding comes in many shapes and sizes. Parties entering into joint fact-finding at the beginning of a consensus process can integrate it into all stages of their negotiations. A joint fact-finding process can also be added later in a decision-making process, if critical information is found to be missing or if parties reach an impasse” (Ehrmann & Stinson, 1999, p. 391). The form that joint fact-finding takes depends on the nature of the ownership and use of land dispute (i.e. whether the evidence available is highly technical or primarily testimonial) and the neutral third party involved. It may involve identifying and consulting a land expert or chartered surveyor who is acceptable to all parties. Alternatively, it may mean bringing a mediator to help the parties collect and analyze the existing evidence in a collaborative way.

 

A mediator gathering facts and evidence about a land dispute in the community may, for example, visit the physical site of the conflict with both parties “to allow [them] to look at the resources or landscape-based evidence at issue” (Namati, 2017, p. 169). A mediator may also work with the parties to create a timeline of the dispute that puts the subjective perspectives of each side by side. This can be done orally or as part of a learning history. 

 

A learning history is a document that describes an event from different perspectives based on interviews with the parties directly and indirectly involved in the event (Wehrmann 2017). Originally developed by Kleiner and Roth in the mid-1990s for the purposes of organisational assessment, land expert Babette Wehrmann demonstrates how learning histories can be adapted and applied for land conflict analysis. Creating a learning history makes it possible to look at a land dispute from a historical or chronological perspective and compare the subjective perspectives of the relevant parties at different times.

 

To create a learning history, different understandings of the land dispute (as expressed by the parties themselves) are distilled and recorded in a table. The table can be organized in the following way (Wehrmann 2017):

 

 

Before the learning history is shared, each party to the ownership or use of land dispute should have the opportunity to review the first two columns alongside their own perspective for adjustments and quote-checking. The final column can be used by the mediator to highlight contradictions between the various understandings and turning points in the dispute (Wehrmann 2017) . After validation has taken place, “the learning history can be used for internal conflict analysis or to analyse the conflict together with those involved” (Wehrmann, 2017, p. 65).

 

In ownership and use of land disputes adjudicated by a court, joint fact-finding may mean bringing expert witnesses together to produce a joint report and deliver their findings concurrently (sometimes referred to by judges as the ”hot tub” method).

 

A joint expert report ”is a written document that is the product of a conference directed by the court between expert witnesses with expertise in the same or similar fields on matters in issue in the proceedings. The joint report must specify matters agreed and not agreed and the reasons for any disagreement. In addition, a joint report may identify matters that have not been agreed but might be able to be agreed with additional information identified by the experts or (in planning appeals) with a change or modification” (Justice Brion Preston, 2015, p. 1). The purpose of a joint expert report is to identify the real issues in dispute, eliminate issues not genuinely in dispute, and provide a clearer and more succinct presentation of the evidence of the experts on matters not agreed (Justice Brion Preston, 2015)

 

In the “hot tub” method, the experts who produced the joint report are called to sit together in the court’s witness box and give evidence at the same time. Only after each expert has provided their assessment on the primary issues and had the opportunity to comment on the assessment of the other expert, can cross-examination by the parties’ respective lawyers begin. Throughout this process, the experts are empowered to ask each other questions and add to the other’s answers after they are given (Rares 2013).

 

Regardless of the form joint fact-finding takes or in what stage in the resolution process it occurs, “the goal is to have a believable database that is prepared in a transparent way” (Ehrmann & Stinson, 1999, p. 396). This database typically takes the form of a single document that “summariz[es] findings and recommendations and identified areas where differences remained” (Karl, Susskind & Wallace, 2007). “It is quite appropriate, once such a database exists, for the parties to interpret the data differently, driven by their varying interests” (Ehrmann & Stinson, 1999, p. 396).

For parties to an ownership or use of land dispute looking to figure out what happened, is independent fact-finding or joint fact-finding facilitated by a neutral third party more effective for well-being?

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

 

For this PICO question, keywords used in the search strategy are: land dispute resolution; fact-finding land disputes; investigating land disputes; land disputes learning histories; concurrent fact-finding land disputes; joint investigation land disputes; adversarial fact-finding land disputes; neutral fact-finding land disputes; adversary science

The main sources of evidence used for this particular subject are:

  • Government of the Kingdom of Eswatini, Technical Assistance Support in Sustainable Land Administration and Management: Guidelines for Land Dispute Mediation, COWI (2018)
  • Babette Wehrmann, Understanding, Preventing, and Solving Land Conflicts: A Practical Guide and Toolbox, GIZ (2017)
  • 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)

 

“Technical Assistance Support in Sustainable Land Administration and Management: Guidelines for Land Dispute Mediation” is a series of guidelines prepared by global consulting group COWI in 2018 to support mediators to help people resolve their land disputes. It was prepared as part of a technical assistance project for eSwantini Nation Land and is therefore tailored for ownership and use of land disputes there. The recommended practices are highly specific and seem reliable, but this is difficult to assess without more information about the authors of the report. For this reason, it must be considered an expert opinion. The quality of the evidence is very low, according to the GRADE method.

 

“Understanding,Preventing, and Solving Land Conflicts: A Practical Guide and Toolbox” is a practice-oriented report written by land expert and consultant Dr. Babette Wehrmann and published by the German Society for International Cooperation (GIZ) in 2017. It is based on the expert opinion of the author, the expert opinion of other customary land conflict resolution experts consulted, and a wide range of land research. It is best categorized as a comprehensive and authoritative export opinion drawing from GIZ’s extensive fieldwork experience. Although the quality of evidence would normally be ranked as very low according to the GRADE method, it is upgraded to low due to the extensive empirical research cited in the bibliography and due to the fact that this is a revised and updated version of the original 2008 report.

 

“How Concurrent Expert Evidence Aids Understanding Issues” is a speech given by judge of the Federal Court of Australia, Steven Rares. It was presented at the Judicial Conference of Australia Colloquium on 12 October 2013 and later published substantially in the December 2013 edition of the Intellectual Property Forum. Although the speech contains a number of legal and academic citations, it is clearly an expert opinion based largely on anecdotal evidence. Judge Rares’ conclusions may also be culturally specific, as they are almost entirely based on the experiences of Australian judges (including himself and others). The quality of the evidence can therefore be considered very low, according to the GRADE method.

 

“Searching for Soap Trees: Norwegian Refugee Council’s Land Dispute Resolution Process in Liberia” is a thematic report written by lawyer and land specialist Gregory Norton and published by the Norwegian Refugee Council in 2011. It is the third in a series of report published by the NRC on housing, land and property rights, land tenure, and land-related conflict in Liberia, where NRC has worked to help individuals resolve land disputes resulting from the 1989-2003 civil conflict since 2006. It contains original research and analysis based on NRC’s fieldwork in Liberia. This research is not empirical, and therefore the report can best be categorized as an expert opinion, with a very low grade of evidence.

 

“Joint Fact-Finding and the Use of Technical Experts” is a chapter in the 1999 book, The Consensus Building Handbook: A Comprehensive Guide to Reaching an Agreement. Written by John Ehrmann and Barabara Stinson, the chapter is an expert opinion comparing joint fact-finding and adversary science in any process intended to build consensus (not only in land disputes). It relies primarily on case studies and the authors’ expertise. For this reason and because it is relatively old, the quality of evidence is very low according to the GRADE method.

 

“When Scientists Act Like Lawyers: The Problem of Adversary Science” is an academic article by (at the time of publication in 1993) Stanford Law School teaching fellow Dan Burk. Its publication in Jurimetrics, a quarterly online law review dedicated to the topics of law and science, gives the author’s findings credibility. Ultimately however, it is an expert legal opinion from nearly 30 years ago. The quality of evidence can therefore be considered very low according to the GRADE method.

 

Lastly, John Alisons’s article in the Harvard Business Review, “Five Ways to Keep Disputes Out of Court” describing the high costs of resolving disputes through adversarial litigation. It is cited minimally in this recommendation but can also be considered an expert opinion and therefore very low quality evidence, according to the GRADE method.

 

Quality of evidence and research gap

 

Altogether, it is clear that the quality of the evidence comparing the outcomes of independent fact-finding and joint fact-finding facilitated by a neutral third party in ownership and use of land disputes is very low. There seem to be few empirical studies on this topic. However, the consistency of the findings across the expert opinions identified suggests that the quality of evidence presented below may be higher than the GRADE method indicates.

Recommendation

 

Independent fact-finding

Joint fact-finding facilitated by a neutral third-party

Under the right conditions, independent fact-finding can help bring the truth of what happened to light. “The idea behind the adversary system is that the truth will emerge when opposing sides present their cases as aggressively as possible. Even though this ideal is not always realized, the principle is probably sound. The problem with the adversary method in civil cases is not theoretical but practical” (Allison, 1990).


By definition, independent fact-finding makes parties less dependent on a third party to investigate what happened in a fair way, which is important when the third party’s neutrality is in question.

Joint fact-finding improves relationships by building trust between parties in conflict. “Joint fact-finding enables individuals with differing interests to work together toward a shared goal. This process fosters trust, enhances communication, and builds understanding” (Ehrmann & Stinson, 1999, p. 380). This is crucial to the fact-finding process given that “parties that do not trust or respect each other are more likely to criticize each other’s interpretations of scientific findings” (Ehrmann & Stinson, 1999, p. 384). 


Joint fact-finding processes facilitate mutual understanding on the part of the parties (and experts) involved. “Joint fact-finding…enables parties to build strong relationships, as they gain a better understanding of each other’s interests” (Ehrmann & Stinson, 1999, p. 377). “When conflict parties discover that their own points of views are treated fairly in the learning history, they become better able to understand the many other people’s perspectives that make up the learning effort” (Wehrmann, 2017, p. 64). Learning histories also make it possible for parties to test their understandings against the perspective of others without having to be in the same room at the same time (Wehrmann, 2017, p. 64). Similarly, the “hot tub” method builds understanding by “enabl[ing] each expert to concentrate on the real issues between them. The judge or listener can hear all the experts discussing the same issue at the same time to explain his or her point in a discussion with a professional colleague. The technique reduces the chances of the experts, lawyers and judge, jury or tribunal misunderstanding what the experts are saying” (Rares 2013).


Learning histories in particular can help bring deeper issues underlying the ownership or use of land dispute to light. By describing the underlying assumptions and reasoning that led to people’s actions, learning histories bring “the unwritten but powerful tacit knowledge and undiscussable myths” to the surface, codify them, and turn them into a knowledge base (Wehrmann, 2017, p. 64).


For these reasons, joint fact-finding is particularly useful for “parties who have a long history of disagreement and poor relationships” (Ehrmann & Stinson, 1999, p. 380).  This is often true of parties to ownership and use of land disputes.


Joint fact-finding helps parties gain knowledge and understanding of complex or technical issues at stake in the dispute. “Joint fact-finding enables parties to explore difficult topics together, so that they can develop a common knowledge base. It also allows those stakeholders with less knowledge, education, or expertise to learn more about the technical issues involved so that they can negotiate on more equal footing” (Ehrmann & Stinson, 1999, p. 378). 


“Joint fact-finding can assist parties when information or data are available but some people believe them to be inaccurate or flawed” (Ehrmann & Stinson, 1999, p. 332). This is often the case in ownership and use of land disputes, as land documents produced by the parties are not always authentic. NRC staff mediating land disputes in Liberia, for example, “describe a detailed range of possible ‘material errors’ and forgeries in documents, such as altered dates (since the older of two document usually takes precedence), signatories to tribal certificates who were not actually chiefs at the relevant date, different penmanship on successive pages of a deed, probate judges who were not in post at the time of alleged probating and so on. In some cases, checks are also made at the various document archives in Monrovia, though the results are often inconclusive due to gaps in registration caused by the civil war or deliberate removal of certain entries to cover up fraud” (Norton, 2011, p. 17).


Joint fact-finding helps the parties arrive at high-quality agreements later in the dispute resolution process. “Processes that include a joint fact-finding step will likely produce agreements that are more credible, more creative, and more durable than they would be otherwise” (Ehrmann & Stinson, 1999, p. 377). Collective analysis and discussion of the learning history, for example, can make it easier for parties to identify possible solutions later in the mediation process (Wehrmann 2017). “Joint fact-finding can also be used to assist participants in breaking a deadlock” (Ehrmann & Stinson, 1999, p. 380).


Expert reports that result from a joint fact-finding process are less likely to be biased than testimony given as a result of independent fact-finding. “Because the report would be fashioned outside of the courtroom, in an atmosphere of consensus-building and scientific discussion, it would presumably be largely free of the biases introduced by the adversary legal system” (Burk, 1993, p. 373).


The joint report writing process can facilitate resolution by clearly identifying which party has the stronger case. “The joint report process often reveals that one party’s case on a critical point will succeed or fail. This is because the experts are able to understand, through professional exchanges, what each has said and on what assumptions. The frequency of experts in joint reports agreeing on critical issues shows that the experts retain their independence and cut through the parties’ different instructions to each, to reach the core question which they then answer” (Rares 2013).


Joint fact-finding in a courtroom setting “in general, greatly reduces the hearing time” because it “efficiently and effectively identifies the issues” (Australian Law Reform Commission 2000, New South Wales Law Reform Commission 2005, Freckleton & Selby 2013, Rares 2013).

 

Independent fact-finding

Joint fact-finding facilitated by a neutral third-party

Independent fact-finding creates difficulties for both parties. In technical land disputes, both sides “must go to great expense to ‘buy’ technical expertise so that they can participate effectively. And, it seems, there are always experts available to provide the answers that support each side’s point of view….[This] suggests that the manner in which technical or scientific information is gathered may be as relevant as the information itself” (Ehrmann & Stinson 1999).


Independent fact-finding that takes place in a court setting may create perverse incentives for the scientific or technical experts involved that are detrimental to fair resolution. “An inexperienced newcomer to the legal arena – such as a scientist hired as an expert – may be seduced by the ‘gaming’ aspects of litigation, and may begin to to participate as an advocate, effectively adopting the norms of law, rather than holding to scientific norms such as disinterestedness. In such a situation, the expert may begin to color his scientific testimony in order to obtain a ‘victory’ for his ‘team’…Alternatively, scientists who become associated with legal disputes may find that they identify with the objectives of one party….Scientists, like everyone else in society, may have strong opinions regarding which resolution of such disputes is most desirable. The desire to see a particular outcome may cause a scientist to abandon the norms of science, coloring his testimony to see his particular viewpoint furthered” (Burk, 1993, p. 369).


Independent fact-finding that takes place in a court setting may result in deficient conclusions that get in the way of effective dispute resolution. “Courts are poorly equipped to deal with scientific evidence in the best of circumstances; should the evidence stray outside the acceptable range of scientific opinion, the trier of fact will often fail to recognize the deficiency…Legal conclusions are reached by a reasoning process of applying rules of law to a set of facts, and where the facts employed are deficient, the conclusions reached will almost always be deficient as well” (Burk, 1993, p. 370). Even if the evidence itself is sound, the experts may feel “artificially constrained by having to answer questions that may misconceive or misunderstand their evidence,” or “that the process is being used to twist or discredit their views, or by subtle shifts in questions, to force them to a position that they do not regard as realistic or accurate. (Rares, 2013).

In communities that are accustomed to independent fact-finding, parties may find a collaborative or joint approach to gathering evidence difficult or unreliable. “It can be difficult to explain the underlying concepts of mediation to a community which has little prior knowledge or experience of it, especially when the prevailing dispute resolution culture of the country is adversarial in nature. It is also sometimes quite challenging for agencies involved in mediation work to completely eliminate the conceptual framework and “mental furniture” of an adversarial system, particularly if the agency is also involved in other activities which take place within the formal legal system” (Norton, 2011, p. 17).


“Joint fact-finding can be expensive and time-consuming, in part because it often involves selecting and hiring technical or scientific experts. The selection process itself involves a small consensus building effort in and of itself, and thus takes some time. The expert(s) chosen generally have to be paid a daily fee. In addition, sufficient time and funds must be available to ensure that all parties have a fair opportunity to have input into a fact-finding process. No single interest group’s perspective should dominate simply because it has more resources” (Ehrmann & Stinson, 1999, p. 385). “If there are not adequate financial resources to complete a thorough and satisfactory process, parties may elect to use existing information” (Ehrmann & Stinson, 1999, p. 385).


Joint fact-finding may only be viable in high-profile or high-value ownership and use of land disputes.The unwieldy and resource-intensive nature of joint fact-finding processes that involve multiple experts may mean that only the most prominent scientific controversies are addressed, while “lesser dispute in the courts…go unattended” (Burk, 1993, p. 373).


Joint fact-finding “may not be appropriate in cases in which there are significant power imbalances among the parties…and powerful parties are seeking to use joint fact-finding to reinforce that imbalance” (Ehrmann & Stinson, 1999, p. 385). In such cases, “it is not in the interests of some parties to pursue a collaborative effort” (Ehrmann & Stinson, 1999, p. 385).


“In some cases, parties will not be able to agree on the selection of an expert or neutral third party to guide the joint fact-finding process,” which delays the process of reaching solutions. This may occur when “too many technical professionals…have already ‘taken sides’ on the issue. The group should be encouraged to work hard to accommodate each other’s interests in the selection process. Sometimes it helps to seek assistance from outside the region, even though this usually adds to the cost” (Ehrmann & Stinson, 1999, p. 397).

Taken together, the available research suggests that whereas independent fact-finding carries a significant risk of producing biased evidence that is damaging to both parties and gets in the way of fair resolution, joint fact-finding facilitated by a neutral third party (regardless of its form) tends to improve relationships between the parties and increase the chance of reaching an acceptable and sustainable resolution.

 

This is evidenced by the beneficial outcomes of joint fact-finding facilitated by a neutral third party, which include improved trust and understanding between the parties (and experts) involved, a shared understanding of the technical issues at stake in the dispute, a more efficient process, and a lower risk of producing biased evidence. These outweigh the truth-finding benefit of independent fact-finding – which exists in theory but rarely in practice – as well as the advantage of not having to rely on a potentially biased third party.

 

While the negative outcomes of the tested interventions are more equal, the negative outcomes of joint fact-finding relate primarily to logistical obstacles, whereas the negative outcomes of independent fact-finding are effects of adversarial litigation on the search for the truth that are more difficult to avoid or overcome. For these reasons, joint fact-finding facilitated by a neutral third party is preferred.

Taking into account the balance of outcomes, the relational and evidentiary benefits of a collaborative approach to fact-finding for all parties involved, and the quality and consistency of the evidence, we make the following recommendation: For parties to an ownership or use of land dispute, joint fact-finding is more conducive to well-being than independent fact-finding.

Reality testing

Interventions and evidence

During the orientation process of the available literature, we identified the following interventions as most plausible for coming together to talk (“meeting”) in ownership and use of land disputes:

  • BATNA assessments by the parties involved
  • Reality testing by a neutral third party

 

Deciding whether and/or how to come together and talk about an ongoing dispute is never easy. In order to understand why one or more parties of an ownership or use of land dispute might refuse to meet and talk (whether in the form of a negotiation, mediation, or other dispute resolution process), BATNAs (Best Alternative to Negotiated Agreement) are a useful concept. 

 

“Stakeholders enter into negotiation when it is seen as the best alternative to what they could expect to obtain’“away from the bargaining table’” (Ramírez, 2002, p. 19). Common alternatives to meeting and talking include doing nothing, ignoring the dispute, engaging in self-help, or taking unilateral action (Mnookin 2003).  “If the decision is taken not to negotiate, then the BATNA should already have been formulated” (Hargie, 2017, p. 407). 

 

As De Vries, Leenes, and Zeleznikow (2005) explain:

 

BATNAs not only serve a purpose in evaluating offers in the dispute, they can also play a role in determining whether or not to accept a certain dispute resolution method. In a recent article, Mnookin (2003) wrote that having an accurate BATNA is part of the armoury one should use to evaluate whether or not to agree to enter a negotiation. We believe this to hold for many dispute resolution methods, including arbitration and mediation” (p. 61). 

 

De Vries, Leenes, and Zeleznikow (2005) identify four relevant factors that play a role in assessing one’s BATNA: 

  • Outcome: “The outcomes is the decision in court or arbitration, the agreement in a negotiation or mediation or the status quo situation if the alternative is walking away from the negotiation table of dispute resolution process.”
  • Risk: “The risk can be modelled as the likelihood of obtaining a specific outcome.”
  • Time: “The time is the duration of the whole (alternative) dispute resolution process.” 
  • Costs: “Costs and benefits are important factors, as most disputants will have limited resources. Costs may include the costs of the neutral, the costs of help by advisers such as lawyers, the costs of experts, the opportunity costs of the time spent, and the costs of uncertainty” (p. 64).

 

When parties to an ownership or use of land dispute have similar perceptions of what BATNAs exist (what will happen if they are not able to come together), their conflict is ripe for resolution. However, when one or more parties believe that he or she has a better alternative to meeting and talking, he or she will be reluctant to come to the table.

 

Therefore, “in preparing for a negotiation [or other forum in which to meet and talk], a party should identify its own interests and those of the other parties; think about each side’s BATNA; try to imagine options that might better serve the negotiators’ interests than their BATNAs; and ensure that commitments made in any negotiated deal have a reasonable prospect of actually being implemented. These same considerations are equally valid in informing an individual’s decision whether one should enter into a negotiation” (Mnookin, 2003, p. 1083). This preparation can be done by the parties themselves, or it can be facilitated by a neutral third party through reality testing.

 

BATNA assessments by the parties involved

 

“While negotiation involves joint decision making, the decision of whether to enter into negotiation or instead pursue some other alternative can be framed in terms of decision analysis, in which a decision maker independently assesses the expected costs and benefits of negotiation and its alternatives” (Mnookin, 2003, p. 1082).

 

“Most parties, to some extent, test the values of their BATNAs when assessing whether or not to opt for a certain dispute resolution method. Although BATNAs are an important aspect of the dispute resolution, there is reason to believe that parties engaged in actual disputes are not very good at determining their BATNAs” (De Vries, Leenes & Zeleznikow, 2005, p. 61). This will be explored further in the recommendation that follows.

 

Reality testing by a neutral third party

“In reality testing, the third party helps clarify and ground each disputing party’s alternatives to agreement. S/he may do this by asking hard questions about the asserted BATNA” (Spangler 2003). These questions may include:

  • What do you see as the strengths of your case?
  • What do you see as the weaknesses of your case?
  • What do you see as the strengths of the other’s case?
  • What do you see as the weaknesses of the other’s case?
  • What is your best-case scenario if you don’t resolve this with negotiation?
  • What is your worst-case scenario if you don’t resolve this with negotiation?
  • What is the most likely scenario if you don’t resolve this with negotiation?
  • Is that better than the most likely negotiated settlement?


Alternatively, “the third party may simply insert new information into the discussion…illustrating that one side’s assessment of its BATNA is likely incorrect” (Spangler 2003). For example, the third party may “educate stakeholders about other sources of power that might change other parties’ BATNA” or “suggest that parties consider the long-term benefits and long-term relationships at stake” (Susskind, 2003, p. 17).

For parties to an ownership or use of land dispute trying to decide whether and/or how to come together and talk, are BATNA assessments by the parties involved or reality testing by a neutral third party more effective for well-being?

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

 

For this PICO question, keywords used in the search strategy are: bringing parties together land disputes; BATNA reality testing costing; BATNA reality testing land; BATNA coming to the table; BATNA third party; reality testing land disputes

The main sources of evidence used for this particular subject are:

  • Alyson Carrel and Noam Ebner, Mind the Gap: Bringing Technology to the Mediation Table, Journal of Dispute Resolution 2 (2019)
  • Owen Hargie, “Working Things Out Together: The Skill of Negotiating” in Skilled Interpersonal Communication: Research, Theory and Practice, Sixth Edition (2017) 
  • Berend de Vries, Ronald Leenes and John Zeleznikow, Fundamentals of Providing Negotiation Advice Online: The Need for Developing BATNAs, Second International ODR Workshop, Wolf Legal Publishers (WLP) (2005)
  • Russell Korobkin, Bargaining Power as Threat of Impasse, Law & Economics Research Paper Series, No. 04-6 (2004)

 

“Mind the Gap: Bringing Technology to the Mediation Table” is an academic article published in the Journal of Dispute Resolution in 2019. It was written by Alyson Carrel, a Clinical Associate Professor and Assistant Dean of Law and Technology Initiatives at Northwestern School of Law, and Noam Ebner, a Professor of Negotiation and Conflict Resolution at Creighton University. The article is an expert opinion focused on the application of technology to support in-person mediation processes. Specifically, it looks at how technologiy can facilitate substantive functions of mediation, including reality testing for BATNAs. Because it is a rigorously cited and recently published academic article, what would normally be classified as a very low quality of evidence according to the PICO/GRADE method can be upgraded to low.

 

“Working Things Out Together: The Skill of Negotiating” is a chapter in the sixth edition of Skilled Interpersonal Communication: Research, Theory and Practice, a book written by Owen Hargie. Hargie is a Professor of Communication at Ulster University, Northern Ireland, and one of the foremost international experts in the field. The book is a revised and expanded version of previous editions, and provides a comprehensive and up-to-date review of the current research, theory and practice in the field of interpersonal communication. The chapter on negotiation discusses BATNAs as part of a larger decision tree that informs whether or not disputing parties should come together and talk. As a comprehensive but not systematic review of research and best practices, this source can best be considered an expert opinion upgraded to a low quality of evidence.

 

“Fundamentals of Providing Negotiation Advice Online: The Need for Developing BATNAs is an academic article written by Berend de Vries and Ronald Leenes – professors at Tilburg University – and John Zeleznikow – professor at Victoria University – in 2005. The article draws from empirical studies in conflict resolution and cognitive psychology to analyze the concept of a BATNA and assess whether information technology could be used to provide BATNA assessments for disputing parties. It is an expert opinion, but can be upgraded to a low quality of evidence due to its basis in small empirical studies.

 

“Bargaining Power as Threat of Impasse” is an academic article written by Russell Korobkin, Professor of Law at UCLA, and published in 2004. It is a brief analysis of the sources of bargaining power in negotiations, and can be considered an expert opinion. It is therefore a very low quality of evidence according to the PICO/GRADe method.

 

Quality of evidence and research gap

 

According to our research method, we grade the evidence comparing BATNA assessments by the parties involved and reality testing by a neutral third party as low. Literature explicitly connecting these interventions to ownership and use of land disputes – as opposed to disputes more broadly – was quite limited. There is a clear gap in the available research on how to bring parties to an ownership and use of land agreement to the table/and or determine the best forum in which to meet.

Recommendation

 

BATNA assessments by the parties involved

Reality testing by a neutral third party

Parties to an ownership or use of land dispute who are persuasive negotiators may not need to have an accurate or reality-tested BATNA in order to influence the other party to come to the table (or come to an agreement). This implies that in some cases, BATNA assessments by the parties’ themselves will be sufficient to negotiate in a way that ultimately serves their interests. “Strictly speaking, it is not the actual, objective quality of the negotiator’s BATNA that determines his degree of bargaining power, but what the counterpart believes that the negotiator believes about the quality of his BATNA…Where power is concerned, the beauty of a BATNA is in the eye of the beholder, and eccentricity is not penalized as long as it is perceived to be genuine…An objectively strong BATNA is helpful, of course, because a BATNA that appears strong renders the negotiator’s claim that he believes his BATNA is strong more credible…But either a phantom BATNA (i.e., a nonexistent alternative) or a real BATNA with phantom value (i.e., an existent but undesirable alternative) can be a source of power in the hands of a persuasive negotiator” (Korobkin, 2004, p. 3).

Reality testing by a neutral third party can help parties to an ownership or use of land dispute determine the best process by which to meet and/or communicate with one another. “The support of professionals to help disputants make the right choices with respect to the dispute resolution process may [for example,] contribute to the effectiveness and efficiency of ODR, as it helps people to determine whether ODR is a useful process for resolving the dispute” (De Vries, Leenes & Zeleznikow, 2005, p. 60). 


Reality testing by a neutral third party can help the disputing parties “to limit the chances of optimistic overconfidence causing poor decision-making” (De Vries, Leenes & Zeleznikow, 2005, p. 61). 


Reality testing by a neutral third party can also help the parties to limit the risk of “reactive devaluation” and distrust of proposals by the opposing party (to come together and talk, for example). “From a cognitive psychology perspective neutrality is valuable. People have the tendency to devalue information given by parties or organizations they perceive as adversaries. In the literature this psychological process is called ‘reactive devaluation’ and is supported by several empirical studies (e.g., Neale & Bazerman, p. 75; Ross 1995, p. 29-38). One of the explanations for this phenomenon is that parties lack information about the interests and intentions of the other party. This lack of insight in the interests of others induces a kind of distrust in their opinions (we are talking of parties that are already in a dispute and hence a lack of trust in the opponent’s statements is inevitable) and the proposals the opponent presents…The effect of the reactive devaluation process in that advice given by the opponent is not judged as ‘neutral’ advice. Therefore it is useful that someone or something that is perceived as neutral to both parties provides negotiation advice about BATNAs” (De Vries, Leenes & Zeleznikow, 2005, p. 62). 


A number of studies indicate that technology is an example of a neutral third (or fourth) party that can help disputing parties to reality test and “determine a BATNA, which helps [them] determine what will happen if the dispute is not resolved” (Lodder & Zeleznikow, 2005 p. 326; Carrel & Ebner, 2019, p. 28). This has the potential to help bring disputants to the table without compromising the impartiality of the third party facilitating the resolution process (Carrel & Ebner, 2019, p. 32). “Recent research has revolved around developing systems that allow disputants to communicate online. Our approach has been to merge techniques developed from argumentation, artificial intelligence, and game theory to provide decision support in an online environment. To construct our environment, we have set forth three basic stages for the effective resolution of online disputes: 1) determining a BATNA, which helps the disputing parties determine what will happen if the dispute is not resolved (This task is context-dependent.); 2) allowing parties to communicate among themselves using dialogue techniques (This task is generic.); 3) using game theory techniques that employ compensation/trade-off strategies to attempt to resolve remaining issues in dispute (This task is generic.)” (Lodder & Zeleznikow, 2005, p. 336).

 

BATNA assessments by the parties involved

Reality testing by a neutral third party

An accurate and unbiased reality test of disputing parties’ BATNAs is difficult to achieve in the absence of a neutral third party. “There are not that many possible sources for a reality check on BATNAs. To address it from a slightly different angle, who are those capable of presenting objective BATNAs. Obviously, the opponent appears not to be a suitable candidate as she has a vested interest in her own position or offer. Alternatively, actors sympathizing with the person seeking advice may also not be too suited as they may fall into the same, or similar, traps as the information seeker. This leaves only a neutral party as a candidate” (De Vries, Leenes & Zeleznikow, 2005, p. 61). 


BATNA assessments by the parties involved and decisions about whether or not to come to the table are more likely to be distorted by “optimistic overconfidence” effect. “A large body of research shows that people have a tendency to develop an overly optimistic view on their chances in disputes (e.g. Neale and Bazerman 1991, p 53-55; Kahneman & Tversky 1995, p. 45-50; Baron 200, p. 367; Lewicki et al 2003, p. 157; Korobkin 2005). This process if referred to as ‘optimistic overconfidence,’ because disputants have unrealistic optimistic expectations about the validity of their judgement (Llewicki et al 2003, p. 157). Neale and Bazerman (1983), for instance, showed this effect. In their (laboratory) experiment, both parties were asked to submit a final offer to an arbitrator. The participants were told that the arbitrator had to choose one of the offers. The experiment showed that the disputants, on average, believed to have a 65.4 percent chance of getting their final offer accepted, while on average their real chance of success is 50 percent. This experiment suggests that people systematically overestimate their probability of success in dispute resolution…These valuations and predictions influence how disputants calculate their BATNAs. The consequence of overly optimistic BATNAs is that a generous offer in a negotiation, or an offer to start a procedure that is in the interest of a party, is prone to be rejected” (De Vries, Leenes & Zeleznikow, 2005, p. 61).


This “optimistic overconfidence” may influence parties to take their ownership or use of land dispute to court rather than meeting with the party as part of a more cooperative resolution process, even when it is not in their interest to do so. “An obvious alternative to accepting an offer to opt for an alternative dispute resolution method, such as arbitration or mediation, is to resort to a court proceedings. Many people think court proceedings have an all or nothing outcome. Hence, an overly optimistic disputant may conclude that he or she is better off in court, than opting for a more cooperative procedure, such as mediation or negotiation. The cooperative procedure in this case is perceived as less attractive, because in such a procedure it is normal that both parties make concessions (see also Barendrecht & De Vries 2004, p. 23-34). [An] overoptimistic disputant will be reluctant to make concessions if she thinks she will surely be able to obtain everything she desires in court” (De Vries, Leenes & Zeleznikow, 2005, p. 61).


BATNA assessments by the parties involved and decisions about whether or not to come to the table are also more likely to be distorted by the “reactive devaluation” effect. “Providing accurate information is important, because disputing parties have a tendency to develop an overoptimistic view on their position in the dispute. The ‘reactive devaluation’ effect suggests that advice given by one’s opponent is less likely to be taken into account than the same information provided by a neutral” (De Vries, Leenes & Zeleznikow, 2005, p. 59).


The potential of these cognitive biases to distort parties’ decisions about whether or not to come to the table is made worse by the fact that opposing parties will often try to negatively influence one another’s BATNAs, or provide false information about their own. “The opposing side may try to moderate your perceptions of your BATNA in a negative fashion. In other words, they may attempt to persuade you that your BATNA is actually worse than you had thought. It is therefore important to work out your BATNA carefully and objectively, and not to deviate from your belief in this, whatever the counterarguments. You should [also] attempt to ascertain what the other side’s BATNA is, and be aware that they may not tell the truth about this” (Hargie, 2017, p. 408).

Without a neutral mechanism to facilitate reality testing of disputing parties’ BATNAs (i.e. an online dispute resolution tool), mediators and or/other third parties attempting to do so may risk compromising their neutrality in the process. “Mediators who consider themselves facilitative, or practice in jurisdictions forbidding mediator evaluations, may find that referring parties to such tools takes them off the expectational hook of evaluation, or that using it themselves, in the room, together with one or even both parties, provides parties with a helpful reality test or BATNA-assessment without clashing with their facilitative approach and perceived impartiality” (Carrel & Ebner, 2019, p. 32).

Taken together, the available research indicates that while particularly skilled negotiators may benefit from making their own BATNA assessments, reality testing by a neutral third party generally helps to improve the quality of BATNA assessments by increasing their accuracy. This finding – and the desirable and undesirable outcomes of each intervention – are elaborated below.

 

Parties that make a decision about whether or not to meet with the opposing party on the basis of their own BATNA assessment risk making a decision that does not serve their interests. Optimistic overconfidence may, for example, influence disputing parties to take their ownership or use of land dispute to court rather than first trying to talk things through as part of a more cooperative resolution process. Reactive devaluation may also cause parties’ to view one another’s proposals to meet and talk with suspicion, even when it would be mutually beneficial. 

 

Reality testing by a neutral third party can help to ameliorate these risks by helping parties make an unbiased determination about whether and/or how to meet and communicate with one other. Technological tools designed to reality test parties’ BATNAs may be useful in this respect because they allow mediators and other third parties to maintain a facilitative rather than evaluative role in the resolution process. 

 

There is a risk that third parties that attempt to assess disputing parties’ BATNAs without the aid of technology will be viewed as less neutral. However, this risk is small relative to the risk of one or more parties making a decision about whether and.or how to meet that is not in their interests based on a biased BATNA assessment.

 

Therefore, for parties to an ownership or use of land dispute trying to decide whether and/or how to come together and talk, reality testing by a neutral third party is preferred.

Taking into account the balance of outcomes, the reduced risk of biased and counter-productive decision-making for land owners and users, and the quality and consistency of the evidence, we make the following recommendation: For parties to a ownership or use of land dispute, reality testing by a neutral third party is more conducive to well-being than BATNA assessments by the parties involved.

Socio-drama / role-playing

Interventions and evidence

“Land conflicts, like any other type of conflict, often end up moving in vicious circles. Conflict parties stick to their positions and unconsciously force one another to adopt increasingly extreme positions. People normally tend to project negative characteristics onto one another until the opposite party finally incorporates them. Reality becomes more and more disguised and distorted, and the other conflict party ends up being blamed for all the negative aspects of life (e.g. squatters often make the state responsible for all their problems, while the state considers squatters to be a handicap to any development whatsoever). In such situations, it becomes necessary that both conflicting parties change their perception of the other to pave the way for an equitable dialogue” (Wehrmann, 2017, p. 92). This can be achieved by a range of different interventions. 

 

During the orientation process of the available literature, we identified the following interventions as most plausible for taking one another seriously as human beings (respecting) in ownership and use of land disputes:

  • Setting ground rules
  • Socio-drama/role-playing

 

Setting ground rules

 

One common way of encouraging parties to an ownership or use of land dispute to respect one another after they have come together is to set ground rules. This can be done by the parties themselves or by a neutral third party, such as a mediator or local leader. 

 

If a mediator is involved, the mediator will typically begin the resolution process by “invit[ing] the parties to suggest and agree on some ground rules about the conduct of the mediation; these generally include respecting the views of others, treating people with appropriate courtesy (e.g. the use of the parties’ chosen names, rather than “this man”) and allowing the mediator to choose who speaks” (Norton, 2011, p. 20). If the parties are struggling to generate ideas, the mediator can help by asking them how they would like to be treated by others during the resolution process. 

 

Example ground rules in ownership and use of land dispute resolution processes include:

  • “One person speaks at a time
  • No demeaning or hurtful language
  • Do not make threats
  • Do not make promises that cannot be kept
  • Focus on resolution, not past grievances
  • Be respectful and patient
  • Do not interrupt”  (Namati, 2017, p. 172).
  • “Listen carefully and attentively
  • Speak about yourself
  • Present your own point of view
  • Make your interests, feelings and concerns clear
  • Remember that the goal is to reach an agreement that is acceptable to all parties” (Engel & Korf, 2005, p. 129).

 

Ground rules should be tailored to meet the needs and priorities of the parties involved and/or the community in which the land dispute arose. “The level of detail included in the ground rules may vary significantly from one dispute resolution process to another – including whether they are documenting in writing and what they are called. For these reasons, the nature of ground rules will be highly specific to the context of the dispute” (CAO, 2019, p. 9). 

 

If a mediator is involved, he or she would typically also explain that their role in the process is “to reinforce these rules whenever necessary” (Engel & Korf, 2005, p. 126). This means making sure that the parties have chance to speak and are actively listening to one another, controlling threatening statements and behavior, and paying attention to non-verbal communication (such as eye contact, sitting posture, facial expressions, and hand gestures) that express underlying feelings or rising emotions (Engel & Korf, 2005, p. 126).

 

All parties should review and agree to follow the grounds rules before the mediation or negotiation begins. Where possible, ground rules should be formally adopted by the parties, typically by signing a joint document. In some cases, more informal methods, such as summarizing ground rules on a flip-chat, can serve a similar purpose…Although the format may vary, formalizing ground rules helps bright clarity to the parties about what they are undertaking and serves to ratify the principles of dispute resolution articulated in the ground rules. This creates a good reference point for parties as the process unfolds (CAO, 2019, p. 10). Parties should furthermore be encouraged to interrupt the resolution process to give feedback if at any point they feel that a rule has been violated (Namati, 2017, p. 172; Engel & Korf, 2005, p. 129).

 

Role-playing (socio-drama)

 

Role-playing is a creative way of gaining insight into the deeper roots of land conflict. When done in a non-professional, improvisational setting and applied to a social problem or conflict, role-playing can also be called a socio-drama.

 

A socio-drama “aims to work out interpersonal relations and the feelings and needs on which they are based. The roles are more like representative characters of a given society than private persons. The idea is that every society disposes of a particular set of roles out of which each person represents a certain combination…roles which the actor also incorporates in his/her sub-consciousness and which will be addressed and sorted during the improvisation” (Moreno 1989, Jüngst/Meder 1991) (Wehrmann, 2017, p. 65).

 

“The basic requirements [of a socio-drama] are a stage (e.g. a room or free space), actors, spectators and a facilitator who directs the play, questions scenes, intervenes in the play, adds new roles and analyses what is happening” (Wehrmann, 2017, p. 65). “A socio-drama done by all conflict parties together or separately by each conflict party” (Wehrmann, 2017, p. 92).

 

A socio-drama aimed at understanding a land conflict and building respect between the parties involved typically proceeds as follows.

  • “First, the director [facilitator] explains the initial situation and the roles involved in the conflict” (Wehrmann, 2017, p. 65).
  • Then actors are chosen to play the [parties involved]. They have to choose a place and position on the stage that corresponds or illustrates the situation at the outset. Their physical positions, their gestures and their viewing direction already characterise – often subconsciously – their inner positions” (Wehrmann, 2017, p. 65).
  • “In their roles, the actors talk and react to each other. They can move and act freely. The most important thing is to react spontaneously and by intuition, without reflecting on the consequences, as this shows best the inner position of the characters” (Wehrmann, 2017, p. 66). 
  • The director can stop the actors “and ask questions about feelings whenever (s)he thinks it is useful to gain a deeper understanding of the conflict situation” (Wehrmann, 2017, p. 70). “The more spontaneously the actors answer and speak about their feelings, the more authentic their words normally are” (Wehrmann, 2017, p. 66). 
  • “The reactions revealed during the play and the fantasies that develop and are expressed should all be considered part of the collective knowledge of that society and its specific forms of relations and ways of interacting” (Wehrmann, 2017, p. 66).
  • “After presenting the socio-drama and before the discussion, the director asks each participant how it felt to play his/her part. At the end, all group members reflect on the positions, interests, needs, desires and fears of those involved in the conflict and summarize them (Wehrmann, 2017, p. 70).

 

The socio-drama should ideally be documented in the form of “sociograms or conflict maps capturing all key situations and turning points” (Wehrmann, 2017, p. 66). “A ‘storyboarding’ visualisation [facilitates] joint analysis of the play after the performance, to ensure that everybody realises what was happening and to check whether all participants (actors, spectators, director and documenting person) experienced the situation in the same way. In case of disagreement, individual scenes can be played again with other actors. Experience, however, shows that there is high consistency in how people experience the play” (Wehrmann, 2017, p. 65).

For parties to an ownership or use of land dispute looking to build mutual respect, is setting ground rules or role-playing (socio-drama) more effective for well-being?

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

 

For this PICO question, keywords used in the search strategy are: respect land disputes; socio-drama conflict; socio-drama land; socio-drama dispute resolution; role playing land; ground rules land disputes

The main sources of evidence used for this particular subject are:

  • The Office of the Compliance Advisor Ombudsman (CAO), Getting Started with Dispute Resolution, Reflections from Practice (2019)
  • Kira Nurieli and Erin Tran, The Intersection between Anthropology, Drama, and Conflict Transformation: A New Method for Research and Practice, Journal of Living Together 6 (2019)
  • Babette Wehrmann, Understanding, Preventing, and Solving Land Conflicts: A Practical Guide and Toolbox, GIZ (2017)
  • Rachael Knight, Marena Brinkhurst and Jaron Vogelsong, Community Land Protection: Facilitator’s Guide, Namati (2017)
  • Gregory Norton, Searching for Soap Trees: Norwegian Refugee Council’s Land Dispute Resolution Process in Liberia, Norwegian Refugee Council (2011)
  • Antonia Engel and Benedikt Korf, Negotiation and Mediation Techniques for Natural Resource Management, Food and Agriculture Organization (FAO) of the United Nations (2005)

 

“Getting Started with Dispute Resolution” is a report published by the Office of the Compliance Advisor Ombudsman (CAO) in 2019 as part of its “Reflections from Practice” series. CAO is the independent accountability mechanism for the private sector arms of the World Bank Group, the International Finance Corporation, and the Multilateral Investment Guarantee Agency. The objectives of CAO’s Dispute Resolution function are to help resolve issues raised about the environment and/or social impacts of projects supported by IFC/MIGA and to improve outcomes on the ground. It provides a non-judicial, non-adversarial, impartial, and independent forum through which communities and companies can seek mutually satisfactory solutions to disputes. Land related cases are raised in over 52 percent of CAO cases, meaning CAO frequently engages with these land disputes as part of its work. Its “Getting Started with Dispute Resolution” report provides an overview of the strategies and tools CAO employs during the early phases of its dispute resolution process, including the establishment of ground rules. It is a good practice publication based on expert opinion and can therefore be considered a very low quality of evidence that is upgraded to low, due to CAO’s significant and varied experience in the field.

 

“The Intersection between Anthropology, Drama, and Conflict Transformation: A New Method for Research and Practice” is an academic article published in the Journal of Living Together and written by Kira Nuriele and Erin Tran. Kira Nuriele is a New York certified mediator and the CEO of Harmony Strategies Group, a cooperative of experienced conflict management professionals who provide conflict management and communication dynamic solutions. Erin Tran is an international mediator with experience contributing to peace programs in Southeast Asia, Sub-Saharan Africa and the Middle East. The article explores how local dramatic arts and socio-drama can be used to develop more effective and socio-culturally appropriate conflict transformation methodologies. Because it is based primarily on literature research and practical experience, it can be considered an expert opinion and a very low quality of evidence according to the GRADE method.

 

“Understanding, Preventing, and Solving Land Conflicts: A Practical Guide and Toolbox” is a practice-oriented report written by land expert and consultant Dr. Babette Wehrmann and published by the German Society for International Cooperation (GIZ) in 2017. It is based on the expert opinion of the author, the expert opinion of other customary land conflict resolution experts consulted, and a wide range of land research. It is best categorized as a comprehensive and authoritative expert opinion drawing from GIZ’s extensive fieldwork experience. Although the quality of evidence would normally be ranked as very low according to the GRADE method, it is upgraded to low due to the extensive empirical research cited in the bibliography and due to the fact that this is a revised and updated version of the original 2008 report.

 

“Community Land Protection: Facilitator’s Guide” is a practical manual for grassroots advocates working to help communities protect their customary claims and rights to land and natural resources. It was written by land and community empowerment experts Rachel Knight, Marena Brinkhurst, Jaron Vogelsang and published by Namati in 2017. The guide is intended for facilitators working to support communities to protect their land claims, and describes Namati’s approach to community land protection in detail. Although it is based on a wealth of institutional experience, it is an expert opinion with a very low quality of evidence, according to the GRADE method.

 

“Searching for Soap Trees: Norwegian Refugee Council’s Land Dispute Resolution Process in Liberia” is a thematic report written by lawyer and land specialist Gregory Norton and published by the Norwegian Refugee Council in 2011. It is the third in a series of report published by the NRC on housing, land and property rights, land tenure, and land-related conflict in Liberia, where NRC has worked to help individuals resolve land disputes resulting from the 1989-2003 civil conflict since 2006. It contains original research and analysis based on NRC’s fieldwork in Liberia. This research is not empirical, and therefore the report can best be categorized as an expert opinion, with a very low grade of evidence.

 

“Negotiation and Mediation Techniques for Natural Resource Management” is a 2005 guide developed within the framework of FAO’s Livelihood Support Programme (LSP), which is funded by the United Kingdom’s Department for International Development (DFID). Written by Antonia Engel, an expert in conflict management and intercultural communication, and Benedikt Korf, it builds on an earlier FAO training manual on resource conflict management that was field-tested in Ghana over a two-year period. It acknowledges “the immense diversity of social/cultural characteristics and interests among people managing the use of lands, forest, marine areas and their products” (p.iii) and discusses how negotiation can be used to promote positive social change and manage conflict in such cases. Though this might normally be considered an expert opinion according to the PICO/GRADE method, it can be leveled up due to the contributions of multiple experts and the fact that its findings were tested in the field. The quality of evidence can therefore be regarded as low.

 

Quality of evidence and research gap

 

According to our research method, we grade the evidence comparing setting ground rules and role-playing (socio-drama) as very low. Although all sources of evidence relied upon related specifically to land problems and resolution processes, only a small number of them related to role-playing and socio-drama as a mechanism of respectful communication. Therefore, further research on the effectiveness of socio-drama in the context of land problems is needed.

Recommendation

 

Setting ground rules

Role-playing (socio-drama) 

Setting ground rules helps create and maintain a respectful environment in which the parties can communicate. Working out ground rules with the parties helps mediators “open paths of communication” and “creat[e] and maintain a setting where agreements can be reached” (Engel & Korf, 2005, p. 126). Asking communities to set ground rules in preparation for a community land protection process, for example, “will ensure that all community land protection meetings are participatory, respectful, and well-run” (Namati, 2017, p. 59). 


Setting ground rules facilitates trust-building and agreement between the parties. “Ground rules help create predictability and structure for the process at a time when trust between the parties may still be low….In cases where goodwill exists among the parties, joint development of ground rules can also be a good opportunity to reach early agreement about important issues” (CAO, 2019, p. 9). 


According to NRC mediators experienced in resolving land disputes in Liberia, setting ground rules helps to address power imbalances relating to gender or ethnicity. “The establishment of ground rules is an important part of setting the tone for the session and ensuring that the tone of discussion does not become adversarial or aggressive, especially when one party is “weaker” than the other in terms of social position or general power relations. They indicated that ground rules were particularly relevant if one party was a woman or a “stranger” (i.e. someone not from the local ethnic majority group, which often applies to Mandingos) and there was therefore a possibility that the other party would not treat them fairly or respectfully. In such situations they would also emphasise to the parties that all Liberians have the legal right to live and own property anywhere in the country, regardless of gender or ethnicity; indeed, it is not uncommon for the parties themselves to own land elsewhere” (Norton, 2011, p. 21). 

“Socio-drama allows the participants to experience and to act out typical needs, fears, desires, frustrations and expectations. It can therefore contribute a lot of additional insight to land conflicts” (Wehrmann, 2017, p. 66). 


When parties to an ownership or use of land dispute are involved in the role-playing, a socio-drama helps build respect for the feelings, needs and interests of the other. “Socio-drama can equally be used to analyse a land conflict or – if practised together with the involved stakeholders (letting them act out the opponent’s part, or letting them watch the play acted out by others who are not involved in the real conflict) – to solve the conflict by increasing the awareness of the other party’s feelings and needs and to rectify their perception of the other party’s positions and interests” (Wehrmann, 2017, p. 66).


Socio-drama makes it possible to personify and foster respect for non-human elements of the conflict in addition to the parties themselves. “One extremely useful feature of the socio-drama is that things such as land or forest or culture can also be acted out and express thoughts and feelings reflecting the way they are being treated” (Wehrmann, 2017, p. 66).


Socio-drama can help parties to move beyond their respective positions and identify the underlying causes of a land or use of ownership dispute, such as feelings of disrespect, mistreatment and indignity. For example, a “a turning point [a] the socio-drama on [a] Ethiopian state forest/land use conflict was the scene in which, after the king had left the stage, the forest sadly explained that he no longer had an owner, that now he belonged to everyone (state land resulting in a de facto open access situation). He expressed feeling afraid and insecure. He even asked the long-established population to take care of him – without receiving an answer. While the play continued, the forest suddenly claimed that he felt mistreated and left the scene. The interesting point is that the conflict continued. Beekeepers blamed the Ministry of Finance for not respecting their traditional rights and culture. Pastoralists accused the District Natural Resources Conservation Office of offending their dignity by not respecting their tradition(al rights). Beekeepers and coffee producers called each other old-fashioned, respectively ignorant towards their culture. Thus, the conflict over land and forest use quickly became a conflict between traditional and modern culture that also touched upon aspects of respect and dignity. This conflict has much deeper roots than the current superficial one over forest use would suggest. The problem is that the cultural issues are part of the forest conflict and that this conflict will only be resolved if an answer to the socio-cultural conflict is found as well. Socio-dramas are immensely useful for revealing additional conflict issues” (Wehrmann, 2017, p. 67).


Socio-drama can encourage self-reflection and self-evaluation by helping parties to see themselves from the other’s perspective. “With theatre serving as a mirror image, we may scrutinize our own cultural behaviors by watching them in performances. Barbara Myerhoff thus explains that cultural performances are ‘reflective in the sense of showing ourselves to ourselves. They are also capable of being reflexive, arousing consciousness of ourselves as we see ourselves. As heroes in our own dramas, we are made self-aware, conscious of our consciousness’ (Myerhoff, 1992, p. 234). Through performance imitation, we can see ourselves from afar, in the third person, allowing us to evaluate ourselves” (Nurieli & Tran, 2019, p. 8). “For example, role reversal performances can be used to help disputants see each other’s perspective. Husband and wife could, for instance, be asked to re-enact a dispute with the husband playing the wife and vice versa” Nurieli & Tran, 2019, p. 13).


In addition to supporting more respectful relationships between the parties, socio-drama can contribute to community solidarity and understanding by “counteracting the decisive elements of the conflict” (Nurieli & Tran, 2019, p. 10). “According to performance theorists and  anthropologists, a society’s public performances are mirror images of that society’s values and ideologies. Performances, in all cultures, are stylized re-enactments of the social reality of the culture or group of individuals that they represent. By viewing a performance, an observer can successfully discern many underlying assumptions, manners, and behavioral norms. According to Victor Turner (1982), a leading theater anthropologist, the function of these rituals is to promote and preserve group solidarity. Ritual bonds all members of society together, through common recognition of re-enacted behavior. Indeed, public performances and rituals are filled with symbols and signs that all members of the community understand” (Nurieli & Tran, 2019, p. 8).  “Dramatic performance can also be applied formally and publicly to [increase awareness of alternative perspectives]. There is a long tradition of theatrical performances used to alter the public’s perceptions about a conflict or dispute” (Nurieli & Tran, 2019, p. 13).


“Dramatic performance may provide opportunities to explore approaches to conflict and mechanisms for conflict transformation in closed conflict cultural groups. As noted by Turner and Scehchner, fictive dramatic presentations mirror real life situations, and may be used to display publicly what would otherwise be concealed. Dramatic performance depersonalizes conflict, enabling individuals who would be uncomfortable discussing conflict to explain and observe dispute and its potential or actual resolution(s) more securely from a third-person perspective.” In other words,  “dramatic performance provides informants with sufficient emotional distance that taboo topics may be discussed openly” (Nurieli & Tran, 2019, p. 10).


Socio-drama can also facilitate the search for solutions by allowing the parties involved (or outsiders) to act them out. “A socio-drama can also be used to act out different solutions of a land conflict. This can be done by outsiders to the conflict or by the conflict parties. Alternatively, outsiders could first play different scenarios and evaluate them identifying the most suitable one. The conflict parties could then act out this one – either together or separately within their groups (Wehrmann, 2017, p. 67).


Socio-drama can help disputants arrive as solutions that are culturally appropriate and more sustainable than solutions imposed by an external facilitator. “Rather than prescribing solutions based on their personal experiences and training, conflict transformation practitioners can use information obtained from dramatic performances to design resolutions that will maintain the existing socio-cultural norms for conflict transformation. By maintaining rather than challenging these norms, the resolution will be more readily accepted and integrated into the community’s social framework. Externally imposed ‘resolutions’ that ignore traditional and local social processes are less likely to have a lasting impact on the disputants” (Nurieli & Tran, 2019, p. 14).

 

Setting ground rules

Role-playing (socio-drama) 

Overly restrictive ground rules may exacerbate conflict between the parties rather than building trust and respect between them. “Front-loading the process with overly rigid ground rules can risk making them a point of conflict before the necessary trust has been built – trust that will be required for the parties to reach later agreement on more difficult and important issues. For example, it may not make sense to include details about potential future elements, such as joint fact-finding exercises that may not end up being necessary. As a consensus instrument, ground rules are not set in stone and can be amended by mutual consent of the parties. Therefore, it is advisable for the parties to also agree on a process for changing ground rules should it be necessary later” (CAO, 2019, p. 10).


A mediator who comes from a different culture from the parties involved may struggle to accurately interpret their communication and enforce ground rules once they have been set, and therefore fail to facilitate respectful communication between the parties. “[Rising emotions] too are signalled by non-verbal communication, and mediators should note whether they are helping or getting in the way of negotiations, and should control them when necessary. This is especially challenging when the mediator comes from another cultural background, or simply does not understand local relationships (Engel & Korf, 2005, p. 126)

“Socio-drama, in particular when realized together with the conflict parties, needs professional guidance” (Wehrmann, 2017, p. 67). Parties to an ownership or use of land dispute may not always have access to a suitable facilitator/director for the socio-drama, making it a potentially less practical mechanism for facilitating respectful communication between the parties than ground rules.

Taken together, the available research suggests that both ground rules and roleplaying (socio-drama) can help increase respect between parties to an ownership or use of land dispute, albeit in different ways. Setting ground rules creates and maintains an environment in which respectful communication can take place, and makes it easier for parties to build trust and ultimately come to an agreement. It also helps to address power imbalances between the parties.

 

Socio-drama helps parties respect and understand the feelings, needs, and interests of the other by bringing them to the surface through role-playing. It also helps parties to see themselves from the other’s perspective, which can encourage self-reflection and self-evaluation of their verbal and non-verbal communication. Socio-drama is uniquely beneficial for addressing land issues in that it makes it possible to represent the land itself, and allows for exploration of underlying or taboo topics in closed conflict cultures that are not accustomed to discussing them openly.

 

Both ground rules and role-playing (socio-drama) have drawbacks as well. Ground rules may become a point of tension is they are overly restrictive and insufficiently accommodating of the parties’ needs and priorities. Ground rules may also be less effective if the mediator responsible for enforcing them does not share the parties’ cultural background and cannot pick up on subtleties in their communication. Socio-drama on the other hand requires the guidance of a specialised facilitator that may not be readily available in all communities.

 

While the negative outcomes of setting ground rules and role-playing (socio-drama) are comparable, the positive outcomes associated with role-playing (socio-drama) clearly outweigh those of ground rules in certain closed conflict cultural contexts. Therefore, while both ground rules and role-playing (socio-drama) are recommended, socio-drama is preferred for addressing ownership and use of land disputes that arise in closed conflict cultures.

Taking into account the balance of outcomes, the unique benefits of dramatic performance for land owners and users, and the quality and consistency of the evidence, we make the following recommendation: For parties to a ownership or use of land dispute looking to build mutual respect, both setting ground rules and role-playing (socio-drama) are conducive to well-being.

Conflict onion model

Interventions and evidence

During the orientation process of the available literature, we identified the following interventions as most plausible for understanding parties’ positions, needs, and interests in ownership and use of land disputes:

  • Asking parties to tell their side of the story

  • Using the “conflict onion” model

 

A neutral third party can facilitate understanding between parties to an ownership or use of land dispute in different ways and in different settings, depending on the nature of the conflict. “In conflict settings where tensions are high, it may be most appropriate to engage the different stakeholder groups in conflict analysis at separate sessions. This can help them to clarify their positions, interests and options in a neutral setting. In some circumstances, conflict stakeholders may also be engaged in a joint meeting at which all take part. This can be considered only if the issues are not very complex and emotions are not likely to escalate” (Engel & Korf, 2005, p. 112). 

 

Regardless of the precise circumstances, neutral third parties are typically trained to build understanding between the parties in one of two ways.

 

Asking parties to tell their side of the story

 

The standard or baseline way of identifying the positions, needs, and interests of parties to an ownership or use of land dispute is to ask each party to tell their side of the story. “During this step, each side tells its side of the story without interruption. Even if these stories are long, the mediator’s job is to allow each side to tell its full story without interruption, argument, and disrespect. The[se] ‘opening statements’ should explain the history of the conflict, the basic issues at stake,the party’s needs and interests, and the desired solution(s). At the end of the statement, the mediator and any neutral local leaders assisting with the mediation may ask clarifying questions” (Namati, p. 171).  

 

Using the “conflict onion” model

 

The “conflict onion” model is a dispute resolution tool based on an analogy of an onion with many layers. “The outer layer of the onion represents the positions we allow everyone to see and hear (what we say we want). Underlying these are our interests (what we [really] want), which represent what we wish to achieve in a conflict situation. At the core of the onion are our needs (what we must have), which must be fulfilled for the conflict parties to be truly satisfied with the outcome” (Imam, Modibbo & Sunday, 2020, p. 29).

 

“Only focusing on the parties’ positions will rarely solve a (land) conflict…When explaining the causes of land conflicts, the positions are often the same: ‘I want the land. The land is mine! Give me the land.’ The position only shows what one conflict party wants from the other party. It is the interest of each party that tells us what they really want, e.g. to grow food and eat it, grow food and sell it, build a house to live in it, build a house to rent or sell it, sell the land in future…Identifying the interests behind a position and eventually even the underlying needs, fears and desires is like peeling an onion, therefore, the (visualization) tool is often referred to as a conflict onion. The identification of interests and needs is typically done during a mediation exercise” (Wehrmann, 2017, p. 56).

 

 

“When analyzing interests [using the onion model, it is important to] bear in mind that:

 

  • All parties have interests and needs that are important and rational to them.

  • A solution to the problem should meet the maximum number of interests of the maximum number of parties possible. 

  • There is always more than one acceptable solution to the problem.

  • Any conflict involves compatible interests, as well as conflicting ones” (Imam, Modibbo & Sunday, 2020, p. 29).

For parties to an ownership or use of land dispute trying to understand each other’s emotions, needs, and interests, is asking parties to tell their side of the story or using the “conflict onion” model more effective for well-being?

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

 

For this PICO question, keywords used in the search strategy are: “conflict onion” land; onion needs interests; onion model land; onion model resolution; onion model land disputes; land mediation needs interests

The main sources of evidence used for this particular subject are:

  • Mukhtar Imam, Abdullahi Modibbo, and Jacho David Sunday, Evaluation of the Interests of Power Blocs in the Syrian War Within the Onion Model Perspective, International Journal of Innovative Research and Advanced Studies (IJIRAS) 7 (2020)
  • Government of the Kingdom of Eswatini, Technical Assistance Support in Sustainable Land Administration and Management: Guidelines for Land Dispute Mediation, COWI (2018)
  • Babette Wehrmann, Understanding, Preventing, and Solving Land Conflicts: A Practical Guide and Toolbox, GIZ (2017)
  • Owen Hargie, “Finding Out About Others: The Skill of Questioning” in Skilled Interpersonal Communication: Research, Theory and Practice, Sixth Edition (2017) 
  • Antonia Engel and Benedikt Korf, Negotiation and Mediation Techniques for Natural Resource Management, Food and Agriculture Organization (FAO) of the United Nations (2005)
  • John Andrew and Gavin Hilson, “Land Use Disputes Between Small- and Large-Scale Miners: Improving Conflict  Management” in The Socio-Economic Impact of Small Scale Mining in Developing Countries: An Update (2003)

 

“Evaluation of the Interests of Power Blocs in the Syrian War Within the Onion Model Perspective” is an academic article written by Mukhtar Imam of the Department of International Relations and Diplomacy at Baze University, and Abdullah Modibbo and Jacho David Sunday, of the Department of Political Science at Nasarawa State University. Published in the International Journal of Innovative Research and Advanced Studies in 2020, the article introduces the “conflict onion” model and uses it as a theoretical framework to analyse the power dynamics between external actors involved in the Syrian civil war. It provides useful information about the onion model, its application, and its outcomes – but as an expert opinion, it is a very low quality of evidence according to the GRADE method.

 

“Technical Assistance Support in Sustainable Land Administration and Management: Guidelines for Land Dispute Mediation” is a series of guidelines prepared by global consulting group COWI in 2018 to support mediators to help people resolve their land disputes. It was prepared as part of a technical assistance project for eSwantini Nation Land (SNL) and is therefore tailored for ownership and use of land disputes there. The recommended practices are highly specific and seem reliable, but this is difficult to assess without more information about the authors of the report. For this reason, it must be considered an expert opinion. The quality of the evidence is very low, according to the GRADE method.

 

“Understanding, Preventing, and Solving Land Conflicts: A Practical Guide and Toolbox” is a practice-oriented report written by land expert and consultant Dr. Babette Wehrmann and published by the German Society for International Cooperation (GIZ) in 2017. It is based on the expert opinion of the author, the expert opinion of other customary land conflict resolution experts consulted, and a wide range of land research. It is best categorized as a comprehensive and authoritative export opinion drawing from GIZ’s extensive fieldwork experience. Although the quality of evidence would normally be ranked as very low according to the GRADE method, it is upgraded to low due to the extensive empirical research cited in the bibliography and due to the fact that this is a revised and updated version of the original 2008 report.

 

“Finding Out About Others: The Skill of Questioning” is a chapter in the sixth edition of Skilled Interpersonal Communication: Research, Theory and Practice, a book written by Owen Hargie. Hargie is a Professor of Communication at Ulster University, Northern Ireland, and one of the foremost international experts in the field. The book is a revised and expanded version of previous editions, and provides a comprehensive and up-to-date review of the current research, theory and practice in the field of interpersonal communication. The chapter on questioning discusses the role of open and closed questions in learning, decision making, and problem solving in interpersonal encounters. As a comprehensive but not systematic review of research and best practices, this source can best be considered an expert opinion upgraded from a very low to a low quality of evidence.

 

“Negotiation and Mediation Techniques for Natural Resource Management” is a 2005 guide developed within the framework of FAO’s Livelihood Support Programme (LSP), which is funded by the United Kingdom’s Department for International Development (DFID). Written by Antonia Engel, an expert in conflict management and intercultural communication, and Benedikt Korf, it builds on an earlier FAO training manual on resource conflict management that was field-tested in Ghana over a two-year period. It acknowledges “the immense diversity of social/cultural characteristics and interests among people managing the use of lands, forest, marine areas and their products” (p.iii) and discusses how negotiation can be used to promote positive social change and manage conflict in such cases. Though this might normally be considered an expert opinion according to the PICO/GRADE method, it can be leveled up due to the contributions of multiple experts and the fact that its findings were tested in the field. The quality of evidence can therefore be regarded as low.

 

“Land Use Disputes Between Small- and Large-Scale Miners: Improving Conflict  Management” is a chapter in the 2003 book, The Socio-Economic Impact of Small Scale Mining in Developing Countries: An Update. The chapter is written by John Andrew, a professor at Queen’s University and expert in environmental issues and conflict resolution, and Gavin Hilson, a professor at the University of Surrey and a global authority on the environmental and social impacts of the small-scale mining sector. The article discusses land disputes involving large- and small-scale mining and mediation as a promising approach to resolution. Based on several case studies, it makes recommendations “for how this approach to conflict resolution could be tailored to this context in order to make it an effective and efficient process, and increase its potential to produce lasting, consensus-based settlements” (p. 25). The article’s findings are based on a case study analysis, meaning it can be considered a small empirical study and therefore a low quality of evidence.

 

Quality of evidence and research gap

 

According to our research method, we grade the evidence comparing asking parties to tell their side of the story and using the “conflict onion” model as very low. There is a dearth of empirical rather than purely theoretical evidence on both interventions. With that said, almost all of the sources of evidence used related specifically to negotiation, mediation, or building understanding of parties’ needs and interests in the context of land disputes. This suggests that the need to identify and understand the emotions, needs, and interests of parties to a land dispute is well-recognised in the field. Future research should aim to fill this gap.

Recommendation

 

Asking parties to tell their side of the story

Using the “conflict onion” model 

Asking parties to tell their side of the story means asking an open question, and open questions help to build understanding between all parties involved. “[Open questions] can be answered in a number of ways, with the response being left open to the respondent. Here, the respondent is given a higher degree of freedom in deciding which answer to give. Open questions are broad in nature, and require more than one or two words for an adequate answer. In general they have the effect of encouraging the interlocutor to respond in more detail about his or her concerns (Hiil, 2014). They are useful in allowing the respondent to express opinions, attitudes, thoughts, and feelings. They do not require any prior knowledge on the part of the questioners, who can ask open questions about topics or events with which they are not familiar. They also encourage the respondent to talk, thereby leaving the questioner free to listen and observe….An important advantage of open questions is that the respondent may reveal information that the questioner had not anticipated” (Hargie, 2017, p. 126)

In addition to helping the parties to examine their own interests and needs, the “conflict onion” model also helps them “to gain a better understanding of the interests and needs of the other side(s)” (Engel & Korf, 2005, p. 113). “[The “conflict onion” model] allows a better understanding of the conflicting parties’ positions, and their real interests and needs. It helps us to distinguish between what the different parties say they want, and what they really want and need” (Imam, Modibbo & Sunday, 2020, p. 29).


“Once the interests, needs, desires and fears of the parties involved in the conflict have been identified [through the “conflict onion” model], it becomes easier to find ways out of the conflict. Someone who wants money or status does not necessarily need this particular piece of land, or indeed any land at all. His desires and needs may be met in other ways. However, someone whose existence is in danger because he has nothing other than this piece of land definitely needs land, although not necessarily this exact piece, so long as the alternative is located in an acceptable location (e.g. at an acceptable distance from formal or informal job opportunities). But if emotional needs are involved and people are especially attached to a given piece of land because it has a special meaning for them, this must be taken

into account, which will probably mean that the person has at least a say in defining the kind of use and is ensured future access to it” (Wehrmann, 2017, p. 57). 


The “conflict onion” model helps parties work towards constructive and mutually satisfying outcomes. “While interests can often be negotiated, needs are non-negotiable. Although it may be difficult to set other dynamics aside, it is critical that conflicting parties understand their own and each other’s core needs, so that constructive and satisfying outcomes can be achieved” (Imam, Modibbo & Sunday, 2020, p. 29).

 

Asking parties to tell their side of the story

Using the “conflict onion” model 

For a variety of reasons, parties to a land dispute do not typically express their interests clearly in the process of telling their side of the story. “In peaceful situations people relate and act based on their actual needs. In conflict situations, the lack of access to their needs, together with the mistrust that often characterizes relationships in conflict, alters the basis on which people relate to one another” (Imam, Modibbo & Sunday, 2020, p. 29). “Parties rarely identify their interests clearly or directly, perhaps because they: do not know what their genuine interests are; believe that they gain more from a settlement when their goals are unknown by other parties; have adopted such strong positions that the interests themselves have become obscured and are equated with the positions” (Engel & Korf, 2005, p. 112). 


This tendency to focus on positions when telling one’s side of the story gets in the way of the search for solutions. “Focusing on inflexible, immediate and often deeply held positions reduces creativity and restricts the exploration of possible solutions to conflict” (Engel & Korf, 2005, p. 115). 


The ability to distinguish parties’ underlying needs and interests from their positions based on what they say is a skill that not all mediators (or other neutral third parties) have. “The mediator must take time during [information collection meetings, in which they hear from each party in turn] to get a greater understanding of each party’s position as well as their underlying interests and needs…The skill of the mediator is to assist the parties to move away from their positions to reveal their underlying needs and interests” (COWI, 2018, p. 8).


In the absence of a mediator or other neutral third party, parties may struggle to represent their interests (or understand the other party’s interests) effectively and/or equally. In land disputes involving large- and small-scale mining, for example, “the level of experience and skill with negotiation-based processes usually varies greatly between parties. These disparities are especially large when the stakeholders include indigenous peoples. Parties that are politically marginalized or which lack resources (as commonly found in developing nations) are often unable to represent their interests effectively. In such situations, a mediator should assist disadvantaged parties to better understand the conflict resolution process and their legal rights, to communicate their interests to the other parties, and to understand other parties’ interests (Andrew & Hilson, p. 38).

Whereas parties can tell their side of the story to build understanding in the absence of a neutral third party, the “conflict onion” model is difficult to use without one. This is because “mediators need to help stakeholders to become aware of the distinction between positions and interests.” In many conflicts, the “positions taken by [the respective parties] seem quite incompatible; there does not seem to be much room for negotiation” (Engel & Korf, 2005, p. 113). Parties may therefore not be able to identify the interests and needs that lie at the core of the conflict (and in the inner layers of the onion) by themselves. Interests that are central to all parties, for example, are often overlooked (Engel & Korf 2005). 

Taken together, the available research suggests that asking parties to tell their side of the story and using the “conflict onion” model both have the potential to increase parties’ understanding of each other’s emotions, needs and interests. Both are also less likely to be effective in the absence of a neutral third party to help distinguish positions from interests and needs.

 

With that said, the desirable outcomes of using the “conflict onion” model clearly outweigh those of asking parties to tell their side of the story. In addition to explicitly distinguishing between positions, interests, and needs, the onion model helps parties to formulate creative solutions and reach constructive and mutually satisfying outcomes. 

 

The undesirable outcomes of asking parties to tell their side of the story also outweigh those of using the “conflict onion” model. Research suggests that in the process of telling their side of the story, parties to a land dispute are often unable to clearly identify their needs and interests. Instead, they tend to focus on their position, which only exacerbates the conflict and gets in the way of the search for solutions. Even if a mediator is present to assist the parties with this process, their ability to do so based solely on what the parties say will depend on their skill level. 

 

The “conflict onion” model can help make the process of understanding one another clearly more explicit to all those involved, and therefore less dependent on the abilities of the parties or mediator. Therefore, using the “conflict onion” model is preferred.

Taking into account the balance of outcomes, the benefits of a more explicit process for building understanding between land owners and users, and the quality and consistency of the evidence, we make the following recommendation: For parties to a ownership or use of land dispute trying to understand each other’s emotions, needs, and interests, using the “conflict onion” model is more conducive to well-being than asking parties to tell their side of the story.

Constructive communication techniques

Interventions and evidence

During the orientation process of the available literature, we identified the following interventions as most plausible for shaping solutions in ownership and use of land disputes:

  • Competitive communication techniques 
  • Constructive communication techniques 

 

During the shaping solutions phase of a negotiation or other resolution process, parties to an ownership or use of land dispute “have an opportunity to work together toward an agreement” (Herrera & Guglielma da Passano, p. 101). To achieve this, they should use dialogue to “analyse each other’s points of view as possible options and try to understand their respective motivations. Only by doing so will they appreciate what their priorities are, what is negotiable, and what seems non-negotiable” (Herrera & Guglielma da Passano, p. 101).

 

If parties are unable to explore possible solutions on their own, they may choose to bring in a mediator or other neutral third party to facilitate the process. “It is the practitioners’ job here to promote creativity and flexibility by encouraging the stakeholders to break the barriers imposed by their starting positions and consider alternative solutions.” (Herrera & Guglielma da Passano, 2006, p. 101). “A neutral can help the group invent options for mutual gain by facilitating brainstorming and creating subgroups for in-depth discussion of specific issues” (Susskind, 1999, p. 14). The neutral “should encourage creative solutions and problem-solving, but allow the parties to arrive at the final resolution themselves” (Namati, p. 173).

 

Whether the parties are negotiating independently or with the help of a neutral third party, the process of brainstorming and shaping solutions hinges critically on effective communication (Herrera & Guglielma da Passano 2006). Communication between parties to an ownership or use of land dispute tends to be either competitive or constructive in nature.

 

Competitive communication techniques 

 

Parties to ownership and use of land disputes may resort to competitive communication techniques in the resolution process for a number of reasons. “Stakeholders are not usually in the frame of mind to be conciliatory, especially at the beginning. They tend to fear that this kind of attitude could be taken as a sign of weakness, giving more power to the other party” (Herrera & Guglielma da Passano, 2006, p. 101). It is also often the case that one or both parties have invested their reputation or their financial resources in a particular position (COWI, 2018).These factors make the parties unwilling to concede. 

 

It is also possible that “one or both parties [does] not enter [the process] in good faith, meaning that they have no intention of finding a resolution…Their intent may be to go to court and seek a resolution that maximises the outcome in their favour, and they have been coerced into mediation [or another resolution process] as a precondition to court action” (COWI, 2018, p. 11; Herrera & Guglielma da Passano 2006). Their participation may also be motivated by a desire to “gather information on the other actors’ positions” (Herrera & Guglielma da Passano, 2006, p. 98) or the belief that “they are more likely to succeed in securing a beneficial outcome from mediation than they are in any other dispute resolution forum” (COWI, 2018, p. 11).

 

Parties that take a competitive approach to resolving their ownership or use of land dispute may use the following communication techniques:

 

State an extreme position

 

Parties often take an extreme position at the start of the resolution process. This is sometimes called “positional” negotiation because it communicates the party’s wants and rights rather than their needs and interests (COWI, 2018). 

 

Exert pressure or influence

 

“During the dialogue some actors may attempt to menace, humiliate or force others to agree to their position” (Herrera & Guglielma da Passano, 2006, p. 101). “Whether perceived or real, factors relating to custom or tradition may also cause parties to “press for a predetermined outcome” in this way (COWI, 2018, p. 12). Third parties, such as family members of the disputants or even the mediator, may also interfere in the resolution process in order “to influence or exert pressure for a particular outcome” (COWI, 2018, p. 11; Remy, Sylla, Paluku Mastaki 2013).

 

Blame the other party

 

Another competitive communication technique often used in resolution processes is to blame the dispute entirely on the other party (Herrera & Guglielma da Passano 2006).

 

Constructive communication techniques 

 

Constructive communication techniques come in a variety of forms, and can be used by parties to an ownership or use of land dispute or by a neutral third party facilitating the resolution process. The following techniques are recommended for shaping solutions in ownership and use of land disputes:

 

Speak in the first person, present tense

 

“The use of the first person and the present tense makes the actors feel closer to the mediator and helps focus the discussion on the ‘here and now’. A direct and simple style helps overcome cultural gaps and gives the stakeholders more confidence, because it is easy to understand” (Herrera & Guglielma da Passano, 2006, p. 108).

 

Focus on a positive future

 

“Another useful technique for improving communication between the actors is to highlight the positive aspects of each situation and encourage the stakeholders to express themselves in a constructive way. For example, instead of talking about the damage the other party has done (‘He lets his animals come and graze on my property’), the actor should focus on possible solutions (‘We could construct a fence and find another place where the animals can go’), or on the expression of needs (‘My provisions for the winter depend on the crop; I therefore need to protect it’) (Herrera & Guglielma da Passano, 2006, p. 108).

 

A neutral third party “might also ask each party to envision a “positive future” where the conflict is resolved. What would happen as a result of the conflict’s peaceful resolution? What will relations between the parties look like in the future? Identifying and thinking about a peaceful, productive future may make the parties more willing to compromise to attain that future vision” (Namati, p. 171). Alternatively, the neutral might “ask each party to talk about positive steps the other party has made toward resolution, as a way of helping each side remember all the good actions of its opponent” (Namati, p. 172).

 

Highlight gains and areas of potential agreement

 

“At key stages in the discussions and negotiations, summarise the main points for each party and re-state points of agreement or potential agreement…When negotiating points materialise, encourage the parties to present these as possible solutions (constructive negotiation)” (COWI, 2018, p. 18-19).

 

Draw possible scenarios for the future

 

For example, a mediator “should have the attitude, techniques and instruments to make an advance diagnosis of the situation’s possible future development, and the related advantages and risks. The mediator’s diagnosis should not focus exclusively on the conflict at the moment of the mediation, but also on the consequences and implications of each possible solution for the actors directly and indirectly involved” (Herrera & Guglielma da Passano, 2006, p. 107).

 

Speaking in the first person (present tense), focusing on a positive future, highlighting areas of potential agreement, and drawing possible scenarios for the future are all constructive communications techniques that both parties to a dispute and neutral third parties could use to shape solutions in the negotiation process.

For parties to an ownership or use of land dispute looking to shape solutions, are competitive communication techniques or constructive communication techniques more effective for well-being?

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

 

For this PICO question, keywords used in the search strategy are: land dispute resolution; land disputes shaping solutions; land disputes brainstorming solutions; land use dispute resolution

The main sources of evidence used for this particular subject are:

  • Government of the Kingdom of Eswatini, Technical Assistance Support in Sustainable Land Administration and Management: Guidelines for Land Dispute Mediation, COWI (2018)
  • Rachael Knight, Marena Brinkhurst and Jaron Vogelsong, Community Land Protection: Facilitator’s Guide, Namati (2017)
  • Sietchiping Remy, Oumar Sylla, Christol Paluku Mastaki, Guide to Land Mediation: Based on the Experience in the Eastern Democratic Republic of the Congo, UN Habitat & Global Land Tool Network (2013)
  • Adriana Herrera and Maria Guglielma da Passano, Land Tenure Alternative Conflict Management, Food and Agriculture Organization of the United Nations (2006)
  • Lawrence Susskind, Using Assisted Negotiation to Settle Land Use Disputes: A Guidebook for Public Officials, Consensus Building Institute (1999)

 

“Technical Assistance Support in Sustainable Land Administration and Management: Guidelines for Land Dispute Mediation” is a series of guidelines prepared by global consulting group COWI in 2018 to support mediators to help people resolve their land disputes. It was prepared as part of a technical assistance project for eSwantini Nation Land (SNL) and is therefore tailored for ownership and use of land disputes there. The recommended practices are highly specific and seem reliable, but this is difficult to assess without more information about the authors of the report. For this reason, it must be considered an expert opinion. The quality of the evidence is very low, according to the GRADE method.

 

“Community Land Protection: Facilitator’s Guide” is a practical manual for grassroots advocates working to help communities protect their customary claims and rights to land and natural resources. It was written by land and community empowerment experts Rachel Knight, Marena Brinkhurst, Jaron Vogelsang and published by Namati in 2017. The guide is intended for facilitators working to support communities to protect their land claims, and describes Namati’s approach to community land protection in detail. Although it is based on a wealth of institutional experience, it is an expert opinion with a very low quality of evidence, according to the GRADE method.

 

“Guide to Land Mediation: Based on the Experience in the Eastern Democratic Republic of the Congo” is a 2013 guide to land mediation drafted primarily by the UN-Habitat’s Land Mediation Team, which has been deployed in the DRC since 2009. It is a simplified tool intended to “contribute to the establishment of a land mediation programme and to guide stakeholders in the context of such a project, or those who do land mediation as a profession” (Remy, Sylla, & Paluku Mastaki, 2013, p. 48). It is based on field experience and “does not claim to have exhausted all the possibilities or all scenarios around land mediation but, in a general way, the publication deals with all the intricacies of the process that revolve around the parties’ willingness to resolve the conflict” (Remy, Sylla, & Paluku Mastaki, 2013, p. 48). As a comprehensive but location-specific practitioner’s guide based on fieldwork but not empirical study, it can best be characterized as an expert opinion. The quality of the evidence is very low, according to the GRADE method.

 

“Land Tenure Alternative Conflict Management” is a 2006 land tenure manual published by the Food and Agriculture Organization of the United Nations (FAO), and written by land tenure  experts Adriana Herrera and Maria Guglielma da Passano. It is intended to be a tool for practitioners, and focuses on “how to manage and resolve conflicts over land tenure rights, security of tenure and land access” in a way that “reduces uncertainty and improves well-being, particularly for the most vulnerable in society” (Herrera & Guglielma da Passano, 2006, p. 1). The development of the manual (as well as several other related research products) was informed by a 2002 Needs Assessment Survey carried out among conflict management experts in 42 countries. Although this might normally be classified as an expert opinion, the quality of the evidence is upgraded to low because of the volume of fieldwork and related field research (including issue papers, case studies, and regional workshops) supporting it.

 

“Using Assisted Negotiation to Settle Land Use Disputes: A Guidebook for Public Officials” was written by Lawrence Susskind and the Consensus Building Institute, with support from the Lincoln Institute of Land Policy, in 1999. The findings and recommendations presented in the guidebook are based on a study of the use of assisted negotiation (“a catch-all term for processes that use a neutral party to assist participants in resolving disagreements or reaching consensus…arbitration, facilitation and mediation are all forms of assisted negotiation” (Susskind, 1999, p. 2)) in 100 local land use disputes in the United States. The Consensus Building Institute conducted 400 interviews with key participants in each case and selected five case studies to explore in detail in the guidebook. Given that the guidebook is based on a small empirical study of land use disputes, the evidence can be classified as low according to the GRADE method.

 

Quality of evidence and research gap

 

According to our research method, we grade the evidence comparing competitive communication techniques and constructive communication techniques for shaping solutions ownership and use of land disputes as very low. There is a dearth of empirical research on this topic, as well as meta-analyses or systematic reviews. This may be because it is difficult to isolate the effects of various communication techniques on resolution outcomes. As a result, expert opinions based on extensive experience resolving land disputes in the field are the primary source of evidence available.

Recommendation

 

Competitive communication techniques 

Constructive communication techniques 

In some cases, competitive communication techniques cost the parties less time overall and produce outcomes more quickly than constructive communication techniques (COWI, 2018). 

Focusing on the positive can discourage spiteful or vindictive communication that gets in the way of the search for solutions. In one case study in the United States for example, a mediator established the ground rule that “parties could raise an objection, but they also had to put forward a positive alternative. This ground rule prevented parties from vindictively blocking progress and encouraged the search for better solutions” (Susskind, 1999, p. 16).


“Encouraging parties to be creative and forward thinking are ways to get around negotiating constraints of predictability, familiarity and cautiousness” (COWI, 2018, p. 17). Left unaddressed, these constraints may cause parties to devalue a proposition or possible solution, “not because of its merits but its source”  (COWI, 2018, p. 17).  


Sharing and celebrating gains made during the resolution process can help to shape sustainable solutions and avoid future conflict. “To choose lasting solutions means that the stakeholders involved in the mediation should be able to leverage the gains and progress throughout the process. Sharing and celebrating the gains and showing how to capitalize on them can galvanize the parties and avoid conflicts in the future” (Remy, Sylla, & Paluku Mastaki, 2013, p. 6).


“A mediator skilled in drawing possible scenarios will help the stakeholders find more sustainable solutions to their conflict and prevent future conflicts, or at least lay the basis for resolving them” (Herrera & Guglielma da Passano, 2006, p. 107).


A study of 100 land use disputes in the United States found that most participants (86%) had a positive view of assisted negotiation (using constructive, consensus-building communication techniques) and the outcomes it achieved. “They thought the negotiated results were better than what they imagined the outcome would have been if they had pursued “normal” channels instead of consensus building” (Susskind, 1999, p. 20). “Among the respondents who stated that some sort of settlement was reached in their cases, most thought the agreement was well implemented (75%), was more stable than what could have been achieved without mediation (69%), and was creative in producing the best possible outcome for all parties (88%). Furthermore, 92% of respondents whose cases were settled thought that their own interests

were well served, and 86% thought the interests of all parties were met by the settlement” (Susskind, 1999, p. 21). “Participants in both settled and unsettled

cases thought the mediators made an important contribution to the quality of the dialogue and the effectiveness of the settlements that emerged” (Susskind, 1999, p. 21). 


The same U.S. study found that “in general, participants thought that assisted

negotiation [using constructive communication techniques] took less time (81% + 4% = 85% combined) and cost less (81% + 10% = 91% combined) than confrontational strategies such as litigation or administrative appeals” (Susskind, 1999, p. 22). 


Constructive communication techniques can benefit parties to a land dispute even when they are unable to reach a solution. “In the event that parties disagree on the solutions to the conflict, they can always commit to adhere to the other achievements of the mediation: respect the other party and their point of view, the improvement of the other party’s positions, etc.” (Remy, Sylla, & Paluku Mastaki, 2013, p. 42). The aforementioned U.S. study found that “even in the nearly 40% of all cases that were not settled, the majority of respondents (64%) thought that the assisted negotiation process had helped the parties make significant progress toward resolution of the conflict in a number of respects. These included informal and partial agreements that became a starting point for future negotiations; enhanced relationships among stakeholders…In some instances improved relationships allowed the parties to improve communication and avoid future misunderstandings. In other cases

the parties were able to rework their agreements at a later time when new information could be shared or new circumstances arose. The process

also helped prevent subsequent disputes because the parties had learned a new model of how to work things out and achieved a higher level of trust and respect” (Susskind, 1999, p. 22).

 

Competitive communication techniques 

Constructive communication techniques

“If the actors adopt an attitude of competition instead of cooperation, or if they think that the solution will come out of acceptance of what they propose, the management of the [resolution or mediation] process will be more difficult. In land tenure conflicts where a big power imbalance exists – as may be the case in a conflict between landowners and small-scale farmers – it is possible that the landowners will be participating in the mediation only to legitimate their position, and with no intention of negotiating an agreement” (Herrera & Guglielma da Passano, p. 96). “[Third party] practitioners should always explain that it is

impossible to find any kind of long-term solution if the stakeholders are unwilling to cooperate” (Herrera & Guglielma da Passano, p. 101). 


The use of competitive communication techniques is more likely to result in a stalemate than a solution. “If one or more stakeholders blame the conflict exclusively on the other parties they will not be able to use the conflict for change, and instead will be in a situation where conflict and change are controlling them. This is a typical scenario in conflicts where the margin for negotiation established by the stakeholders is so narrow that it leads to a stalemate. The actors are not able to move forward unless they decide to cooperate” (Herrera & Guglielma da Passano, 2006, p. 96).


Competitive communication techniques that center on the parties’ positions make it difficult for neutrals to identify their underlying needs and interests, which are important for collectively generating solutions. “Disputes about land are not always as straightforward as they might first appear. They may not always be the root cause of a dispute but a symptom or by-product of another type of dispute. For instance, animosity between two families may manifest in arguments their common boundary line, or contests or rivalry between family members may appear to be contests about the family land. Therefore, it is important that the mediator quickly identifies the underlying interests and needs of each party and not just their positions” (COWI, 2019, p. 18).

Land use dispute resolution processes using constructive communication techniques may not be appropriate for shaping solutions when: “public health or safety requires that action be taken immediately; precedent setting is important; participants do not recognize the other side’s rights” (Susskind, 1999, p. 23).



Taken together, the available research suggests that whereas competitive communication techniques (such as stating an extreme position, exerting pressure, or blaming) generally make shaping solutions in ownership and use of land disputes more difficult, constructive communication techniques (such as speaking in the first person present tense, focusing on the positive, highlighting gains and areas of agreement, and drawing future scenarios) generally facilitate the search for sustainable and mutually-satisfying solutions. Evidence also suggests that they can help to prevent future conflict.

 

The only identifiable desirable outcome of competitive communication techniques – that they may cost the parties less time overall – is called into question by empirical research suggesting that third party resolution processes grounded in constructive communication techniques cost less time and money than more competitive approaches. The same research provides strong evidence that constructive communication techniques improve trust and respect between parties to land use disputes, and can therefore be beneficial even in cases where no resolution is reached. Although constructive communication techniques are not appropriate for certain kinds of ownership and use of land disputes, this disadvantage is clearly outweighed by the tendency of competitive communication techniques to result in a stalemate. Therefore, using constructive communication techniques to shape solutions in ownership or use of land disputes is preferred.

Taking into account the balance of outcomes, the value of communication techniques that help generate creative and forward-thinking solutions rather than obstructing them, and the quality and consistency of the evidence, we make the following recommendation: For parties to a ownership or use of land dispute looking to shape solutions, constructive communication techniques are more conducive to well-being than competitive communication techniques.

Principled bargaining / negotiation

Interventions and evidence

During the orientation process of the available literature, we identified the following interventions as most plausible for decision-making (“deciding”) in ownership and use of land disputes:

  • Positional bargaining/negotiation
  • Principled bargaining/negotiation

 

“When local users collaboratively manage their natural resources, it is quite normal for some to have different interests from others regarding how to use a resource. When these different interests seem incompatible, a conflict occurs” (Engel & Korf, 2005, p. 48).

 

To resolve an ownership or use of land dispute, it is often necessary for parties to share money, assets, tasks and risks through bargaining and negotiation. “Negotiation is a problem-solving process in which two or more people voluntarily discuss their differences and attempt to reach a joint decision on their common concerns” (Ilvento, 1996, p. 13). When it comes to the distribution of resources, there are two dominant theories of negotiation: positional bargaining/negotiation and principled bargaining/negotiation.

 

Positional bargaining/negotiation, as the name suggests, is based on positions: “concrete and explicit demands (what people say they want)” (Engel & Korf, 2005, p. 49). Principled bargaining/negotiation is based on interests and needs. “Interests are often less clearly articulated (what people really need). Interests are more long-term and reflect the broader hopes of a person or group, such as the desire to live peacefully, to have stable access to livelihood resources, or to have his/her identity recognized. Interests can focus on factual issues (e.g. distribution of resources) and on relationship issues (trust and confidence)” (Engel & Korf, 2005, p. 49).

 

Both types of bargaining/negotiation can be facilitated by a neutral third party, such as a mediator, or take place between the parties to the ownership or use of land dispute alone.

 

Positional bargaining/negotiation

 

“Positional negotiation strategy is essentially a manipulative approach designed to intimidate the other party such that they lose confidence in their own case and are pressured into accepting the other side’s demands. Positional negotiation is characterized by high opening demands; threats, tension and pressure; stretching the facts; sticking to positions; being tight lipped; Desire to out-do [or] out-manoeuvre the other side; desire for clear victory” (Mwaniki, 2017, p. 157).

 

Principled bargaining/negotiation

 

Principled bargaining/negotiation – also known as “consensual negotiation” –  “is interest based, co-operative, and collaborative. In this approach we separate the people from the problem; focus on interests, not positions; Invent options for mutual gain and select from among options by using objective criteria” (Mwaniki, 2017, p. 157). Each of these core elements of principled bargaining/negotiation is elaborated below:

  • Separate the people from the problem. “In every social conflict there is a factual level and a relational level. Constructive conflict management is only possible if the relational level is taken seriously and it is possible to express feelings, fears, desires, etc. However, this must not be confused with the handling of factual issues. It is easier to work successfully on factual issues when the people issues are treated separately from them. Ideally, people work side by side to attack the problems rather than each other” (Engel & Korf, 2005, p. 50).
  • Concentrate on interests and not on positions: “Participants in negotiations have different perceptions, viewpoints, emotions, likes, and dislikes. Taking positions makes things worse because people tend to identify themselves with their positions. The object of negotiations is to satisfy needs and interests” (Engel & Korf, 2005, p. 50).
  • Develop options that benefit both sides: “Negotiation partners should take time to search for a wide range of options before trying to come to an agreement” (Engel & Korf, 2005, p. 50).
  • Insist on using some objective criteria for evaluating the options: “The agreement should reflect fair standards that are shared by the parties” (Engel & Korf, 2005, p. 50).

 

The use of objective criteria – sometimes also called “the going rates of justice” or “sharing rules” (Barendrecht & Verdonschot, 2008) – is particularly important for bargaining/negotiation focused on the fair distribution of resources. In order to facilitate conflict resolution (increase acceptance of outcomes and keep costs low), the objective criteria used in principled bargaining/negotiation should ideally have the following characteristics:

  • “Independent of willpower and [possible to apply] objectively;
  • Perceived as legitimate
  • Lead to outcomes that are continuous in character, not binary;
  • Weigh similar elements of the situation on both sides;
  • Belong to parties, reflecting their ideas about legitimacy and appropriate use of objective criteria;
  • Allow decision-makers to tailor the outcome to the specific situation;
  • Practical [and] in particular, requiring low-cost fact-finding;

Provide social information about actual application by others” (Barendrecht & Verdonschot, 2008, p. 1).

For parties to an ownership or use of land dispute looking to share rights and resources, is principled bargaining/negotiation or positional bargaining/negotiation more effective for well-being?

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

 

For this PICO question, keywords used in the search strategy are: principled positional bargaining land disputes; principled position negotiation land disputes; land sharing agreements; land distribution agreements; objective criteria land disputes.

The main sources of evidence used for this particular subject are:

  • Dennis Mwaniki, Land Use Conflicts: The Place of ADR in Land Disputes in Africa, CASLE – Dar es Salaam Conference Papers (2017)
  • Maurits Barendrecht and Jin Ho Verdonschot, Objective Criteria: Facilitating Dispute Resolution by Information about Going Rates of Justice, TISCO Working Paper Series on Civil Law and Conflict Resolution Systems No. 005, Tilburg University Legal Studies Working Paper No. 011 (2008)
  • Antonia Engel and Benedikt Korf, Negotiation and Mediation Techniques for Natural Resource Management, Food and Agriculture Organization (FAO) of the United Nations (2005)
  • Thomas Ilvento, “Conflict in the Community: A Challenge for Land Grant Universities,” Southern Rural Sociology 12 (1996) 

 

“Land Use Conflicts: The Place of ADR in Land Disputes in Africa” is a conference paper by Dennis Mwaniki, an environmental planning and management expert at the Global Urban Observatory, UN-Habitat. It was published by the Commonwealth Association of Surveying and Economy (CASLE) in 2017 and prepared as part of a 2016 conference CASLE jointly organized with The Institution of Surveyors of Tanzania (IST) and The Tanzanian Institution of Valuers & Estate Surveyors (TIVEA). A core area of focus for CASLE is access to land and legal security of tenure. Mwaniki’s paper looks at negotiation methods commonly used as part of alternative disputes resolution (ADR) methods in Africa, including principles and positional negotiation. It is an expert opinion and is therefore a very low quality of evidence according to the PICO/GRADE method.

 

“Objective Criteria: Facilitating Dispute Resolution by Information about Going Rates of Justice” is an academic article written by experts of dispute resolution system design and legal innovation, Maurits Barendrecht and Jin Ho Verdonschot of Tilburg University in the Netherlands. It was published in 2008 as part of two different working papers series, and focuses on norms that give guidance on how to “split the pie” in a fair way. The article’s findings are based on a review of literature on negotiation, compliance, descriptive social norms, conflict resolution, fairness, and distributive justice. It is an expert opinion – not an empirical study – and is therefore a very low quality of evidence according to the PICO/GRADE method. However, because it cites evidence from empirical studies on bargaining/negotiation throughout, it can be leveled up to a low quality of evidence.

 

“Negotiation and Mediation Techniques for Natural Resource Management” is a 2005 guide developed within the framework of FAO’s Livelihood Support Programme (LSP), which is funded by the United Kingdom’s Department for International Development (DFID). Written by Antonia Engel, an expert in conflict management and intercultural communication, and Benedikt Korf, it builds on an earlier FAO training manual on resource conflict management that was field-tested in Ghana over a two-year period. It acknowledges “the immense diversity of social/cultural characteristics and interests among people managing the use of lands, forest, marine areas and their products” (p.iii) and discusses how negotiation can be used to promote positive social change and manage conflict in such cases. Though this might normally be considered an expert opinion according to the PICO/GRADE method, it can be leveled up due to the contributions of multiple experts and the fact that its findings were tested in the field. The quality of evidence can therefore be regarded as low.

 

“Conflict in the Community: A Challenge for Land Grant Universities” is an academic article written by Thomas Ilvento – professor and expert in resource economics – in the Southern Rural Sociology journal in 1996. The article looks at the application of alternative dispute resolution techniques and environmental mediation in particular to conflict in communities. Although the article is well-researched, its age and the fact that it is an expert opinion primarily based on literature research makes it a very low quality source of evidence according to the PICO/GRADE method. 

 

Quality of evidence and research gap

 

According to our research method, we grade the evidence comparing principled bargaining/negotiation and positional bargaining/negotiation as low.

Recommendation

 

Positional bargaining/negotiation

Principled bargaining/negotiation

 

Principled bargaining/negotiation helps to promote gains for both parties to a conflict or dispute. “Consensual negotiations are based on stakeholders identifying their own needs and interests, and thereby finding ways to promote mutual gains” (Engel & Korf, 2005, p. 48).


By reconciling interests rather than positions, principled bargaining/negotiation makes it easier for parties to find common ground. “Reconciling interests rather than positions works for two reasons. First, every interest can usually be satisfied by one of several possible positions. All too often people simply adopt the most obvious position. Second, behind opposed positions lie many more shared and compatible interests than the conflict ones (Fisher, Ury and Patton, 1991: 43). This makes it easier to find common ground at the level of interests” (Engel & Korf, 2005, p. 49).


By helping the parties to explore options for mutual gain, principled bargaining/negotiation makes it possible to expand a seemingly “fixed pie.” “In many conflicts. The parties tend to view the situation as a ‘fixed pie’ with little or no options. Thus the conflict is a win/lose or zero sum affair rather than a search for alternatives or common group. One strategy [of principled bargaining/negotiation] is to ‘expand the pie’ before identifying potential options for resolving the conflict…by look[ing] for mutual gain and additional resources that might help address stated interests” (Ilvento, 1996, p. 17).


By insisting on the use of objective criteria, principled bargaining/negotiation increases trust between parties and helps them to overcome impasse. “When parties are locked in an impasse, it often is useful for them to focus on objective standards that can be agreed upon….For there to be trust, mutually agreed upon criteria must be set. These standards may be based on research, past experience, accepted practice, and government or industry standards, as well as on principles of fairness, justice, and integrity” (Ilvento, 1996, p. 17). This works because in it is generally ‘easier to follow an independent standard than to give into the other side’s positional demand (Fisher et al., 1991)” (Barendrecht & Verdonschot, 2008, p. 5).


Objective criteria helps parties reach more fair agreements. “Bargaining experiments show that salience of fairness criteria and expectation about them being followed helps to reach more fair agreements. In ultimatum game experiments, propoers presented more fair offers if they knew that the responder had knowledge about criteria specifying what a reasonable outcome would look like (Bicchieri and Chavez 2008)” (Barendrecht & Verdonschot, 2008, p. 4).


Social psychology research suggests that the use of objective criteria may also increase parties’ well-being, perceived fairness, and level of satisfaction with the resolution reached. “Being treated similarly to others is an often-confirmed component of people’s well being (Korobkin 2000). It has a strong effect on perceived fairness and level of satisfaction (Klein & Moore 2005); both of which positively affect the probability that negotiators follow through on an agreement (Barry & Oliver 1996)” (Barendrecht & Verdonschot, 2008, p. 5).


Because they allow disputants to work out their own resolutions, principled negotiations “produce potentially more satisfying and enforceable settlements” (Engel & Korf, 2005, p. 48). “An agreement reached by disputants themselves is more likely to be adhered to than are solutions that are outside their control (Engel & Korf, 2005, p. 52).


“Consensual negotiations are particularly important when an aim is to strengthen long-term working relationships” (Engel & Korf, 2005, p. 48). This is often the case in ownership and use of land disputes, which tend to involve parties from the same community.


Even when the goal of principled bargaining/negotiation “to achieve win-win solutions from which all sides gain” is not reached, “there is still a whole range of possible positive outcomes of negotiations” (Engel & Korf, 2005, p. 49).


Principled bargaining/negotiation is best-suited for addressing the issues that tend to underlie ownership and use of land disputes. “ACM [alternative conflict management and specifically principled bargaining/negotiation] works best when addressing issues such as conflict demands or unsustainable resource use. Interests are generally more negotiable than are basic needs such as identity, security, recognition or equal participation within society” (Engel & Korf, 2005, p. 55).

 

Positional bargaining/negotiation

Principled bargaining/negotiation

“Positional bargaining can be an impediment to consensus building. In a conflict situation, parties tend to lock themselves in positions, which they have to defend and argue for. Conflict stakeholders often exaggerate their differences by adopting positions that do not necessarily correspond to their interests. They may think that taking a strong position will help them to give as

little as possible to the other party. Once the parties have identified themselves with their

positions, the arguments and offers of the other side will no longer be evaluated rationally. To “give n” may appear equal to losing face. Negotiations become a contest of wills in which each side tries to win. During such positional bargaining processes, the parties view themselves as adversaries; the goal is victory”

 (Engel & Korf, 2005, p. 49). 


Positional bargaining/negotiation tends to increase the likelihood of stalemate. This is because unlike interests, “positions often appear rigid and inflexible. For example, in a landfill dispute one position could be, ‘We do not want the landfill located in our county.’ However, further probing could reveal that the underlying interests might be concerns about health, traffic, or property values…The interests of the parties may or may not be compatible and may or may not be at odds. In contrast, positions often lead to stalemates and increased conflict” (Ivento, 1996, p. 16).


Positional bargaining can be costly in terms of time, money and relationships. Solving distributive issues through positional bargaining/negotiation – rather than a process that focuses on objective criteria – “comes down to a contest of willpower, a context that endangers relationships and can be time and money consuming (Fisher et al. 1991)” (Barendrecht & Verdonschot, 2008, p. 5).

Principled bargaining/negotiation requires a certain level of goodwill which may not always exist between parties to ownership and use of land disputes. “This approach seeks high levels of collaboration, and presumes that the parties have the necessary good will to communicate throughout the process” (Engel & Korf, 2005, p. 48). 


Using objective criteria as part of a principled approach to bargaining/negotiation may come with practical difficulties. There is a risk that, for example, “the parties will only bring forward objective criteria that support their own positions (Korobkin 200; White 1984)…Such references to rather extreme criteria are indeed unlikely to bring more neutrality in the negotiations, and they are more like arguments that support positions” (Barendrecht & Verdonschot, 2008, p. 6). Furthermore, suitable objective criteria are not always readily available: “legal systems do not abundantly deliver suitable objective criteria,” perhaps due to the fact that “drafting such rules is costly…[and] it is not always worthwhile to produce [them]” (Barendrecht & Verdonschot, 2008, p. 16).


The application of principled bargaining/negotiation may not be successful or appropriate when there are major power differences between parties. This may be the case in “natural resource conflicts, especially when they involve outside stakeholders.” Large power differences are problematic in principled bargaining/negotiation because “the more powerful actors can take unilateral actions to force weaker parties to accept a decision,” and because “if any of the parties believe that they can obtain a better deal through any alternative to the settlement that has been negotiated, they are likely to try to do so” (Engel & Kord, 2005, p. 54.

Taken together, the available research suggests that principled bargaining/negotiation – with it separation of the people from the problem, its focus on interests and mutual gains, and its use of objective criteria – has several advantages over positional bargaining/negotiation when it comes to sharing in ownership and use of land disputes. Whereas positional bargaining/negotiation has no identifiable benefits for the parties involved, principled bargaining/negotiation helps to expand what may at first seem like a “fixed pie” of rights and resources. It makes it easier to find common ground, which in turn produces relational benefits. The use of objective criteria in particular tends to increase the levels of trust, satisfaction, and fairness that parties experience, and help them overcome barriers to making and following through on agreements.

 

Because of its adversarial nature, positional bargaining tends to have the opposite effects. It can cause parties to exaggerate their differences and take positions that run counter to their interests, which in turn increases the likelihood of stalemate. It also sets parties up for a costly and time-consuming contest of willpower that can be damaging to the parties’ relationship. While principled bargaining/negotiation also comes with practical difficulties and may not be suitable for every type of ownership and use of land dispute, it is less likely to be damaging because of its emphasis on collaboration and win-win outcomes.

Therefore, principled bargaining/negotiation is preferred.

Taking into account the balance of outcomes, the distributive and relational benefits of focusing on the interests – rather than the positions – of land owners and users, and the quality and consistency of the evidence, we make the following recommendation: For parties to a ownership or use of land dispute looking to share rights and resources, principled bargaining/negotiation is more conducive to well-being than positional bargaining/negotiation.

Tribunals in the community

Interventions and evidence

During the orientation process of the available literature, we identified the following interventions as most plausible for decision-making (“deciding”) in ownership and use of land disputes:

  • Seeking a decision by a tribunal in the community
  • Seeking a decision by the nearest court

 

When parties to an ownership or use of land dispute need a neutral third party to help them resolve their dispute, they typically have two options: rely on the tribunal in the community to make the right decision or bear the additional costs of having their case adjudicated in the nearest court. “A number of factors, including accessibility, existing allegiances and assumed outcomes, tend to guide people in their choices of how to [address land conflicts” (Mathys & Vlassenroot, 2016, p. 2). Once this initial choice is made, the perceived authority of the selected decision-maker will influence the extent to which the decision is observed by the parties themselves and the broader community.

 

Decision by a tribunal in the community

Though they vary widely across cultures, local tribunals generally see ownership or use of land disputes as conflicts involving the entire community, not just as disputes between individuals (Wehrmann, 2008). This view informs the way they approach resolution. Local tribunals typically make decisions based on conventions and customary regulations (Van Leeuwen & Haarsten 2005).

 

Decision by the nearest court

In contrast to community tribunals, courts make decisions based on state legislation (Van Leeuwen & Haarsten 2005). Judges typically view ownership or use of land disputes as conflicts between individuals that can be resolved through an analysis of the relevant land title or other legal documentation.

For parties to an ownership or use of land dispute who need third party adjudication, is seeking a decision by a tribunal in the community or a decision by the nearest court more effective for well-being?

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

 

For this PICO question, keywords used in the search strategy are: (resolving) land ownership disputes; (resolving) land use disputes; land dispute resolution

The main sources of evidence used for this particular subject are:

  • Mathijs van Leeuwen and Linda Haartsen, Land dispute and local conflict resolution mechanisms in Burundi, CED-CARITAS Burundi (2005)
  • Kathryn E. Witchger, Equality in Process: Community Land Dispute Resolution Mechanisms in Kenyan Law, Colombia Journal of Gender and Law (2018)
  • Domenico Nucci, Study on Arbitration, Mediation and Conciliation of Land and Property Disputes, Norwegian Refugee Council (2004)
  • Babette Wehrmann, Land Conflicts: A Practical Guide to Dealing with Land Disputes, GIZ (2008)
  • Julius Ojok, A Step-By-Step Guide on Land Dispute Resolution Mechanisms in Acholi-Northern Uganda, Trocaire.
  • Getachew Mequanent, The Application of Traditional Dispute Resolution in Land Administration in Lay Armachiho Woreda (District), Northern Ethiopia, World Development 87 (2016).
  • Gillian Mathys and Koen Vlassenroot, “It’s Not all About the Land”: Land Disputes and Conflict in the Eastern Congo, Rift Valley Institute PSRP Briefing Paper 14 (2016).

 

“Land dispute and local conflict resolution mechanisms in Burundi” is a research report written by rural development sociologist Mathijs van Leeuwen and tropical land use expert Linda Haartsen on behalf of CED-CARITAS, an organization helping Burundian refugees to return to their land. The report summarises qualitative research (fieldwork in four communities, tracking a total of 55 disputes) on “the nature and origins of current land disputes in Burundi, the methods for resolution actually used in the communities, and what this implies fo the assistance of NGOs and churches to strengthen local conflict resolution mechanism” Although the content of the report appears neutral, there is a chance that the research methodology and findings are influenced by the fact that the research project – though funded by the Dutch relief and development organization CORDAID – was initiated at the request of the Catholic Church in Burundi. According to the GRADE system, the quality of evidence from this medium-sized empirical study can therefore be considered low.

 

“Equality in Process: Community Land Dispute Resolution Mechanisms in Kenyan Law” in an expert opinion written by Kathryn Witchger, a lawyer specialising in international law. Based on its publication in the Colombia Journal of Gender and Law in 2018, it can be considered as a reputable source on traditional dispute resolution mechanisms. With that said, the author appears biased in the sense that she is clearly opposed to resolution mechanisms dominated by male elders and sees them as discriminatory towards women. The quality of this evidence according to the GRADE system is therefore very low, as it is not based on empirical research and may be influenced by a Western bias. 

 

Dominico Nucci’s “Study on Arbitration, Mediation and Conciliation of Land and Property Disputes” is an expert opinion based on field based findings of legislative and customary law and practice in Sudan, as well as existing agreements, statues and customs, international documents and research on land dispute resolution mechanisms. Its recommendations therefore reflect the expert analysis of Nucci and the organisations involved in the original study (Norwegian Refugee Council, United Nations High Commissioner for Refugees, Food and Agriculture Organization of the United Nations). Though these are reputable sources, the quality of evidence in the report is also very low.

 

“Land Conflicts: A Practical Guide to Dealing with Land Disputes” is a practice-oriented report written by land expert and consultant Dr. Babette Wehrmann and published by the German Society for International Cooperation (GIZ). It is based primarily on the expert opinion of the author as well as other customary land conflict resolution experts consulted. While it is a comprehensive and authoritative resource drawing from GIZ’s extensive fieldwork experience, it is not explicitly based on empirical research and therefore ranked as very low.

 

“A Step-By-Step Guide on Land Dispute Resolution Mechanisms in Acholi-Northern Uganda” by Julius Ojok, on behalf of Trócair, falls into the same category in that it is a practice-oriented report written by a lawyer and Ugandan dispute resolution expert on behalf of an international development organization. Its findings may be of a slightly higher quality because it is focused specifically on the Ugandan context rather than land dispute resolution glocally. Even so, it is ranked as low according to the GRADE method.

 

“The Application of Traditional Dispute Resolution in Land Administration in Lay Armachiho Woreda (District), Northern Ethiopia” by independent researcher Getachew Mequanent is a peer-reviewed academic article published in World Development in 2018. It is an expert opinion based on an analysis of a wide range of empirical studies and policies in the district under study. As an expert opinion it would normally be graded as very low, but because of the quality of the evidence supporting it and the highly specific regional focus, it is upgraded to low according to the GRADE method.

 

Finally, the briefing paper “‘It’s Not All About the Land:’ Land Disputes and Conflict in the Eastern Congo” by Gillian Mathys and Koen Vlassenroot is a policy high-level report on land issues in the Eastern Congo. Dr. Mathys is a historian focused on Africa and Dr. Vlassenroot is an expert on conflict dynamics in East Africa, particularly as it relates to resource governance and land issues. This is an evidence-based expert opinion and is therefore graded as very low.

 

Quality of evidence and research gap

 

According to our research method, we grade the evidence comparing community and court-based decision-making processes for ownership and use of land disputes as very low. There is a clear lack of medium to large scale empirical research on this topic, as well as meta-analyses or systematic reviews. This is likely due to the fact that local dispute resolution practices vary considerably across cultures and regions, making expert opinions based on a range of studies and small-scale studies on specific regions the most practical approach among researchers. 

 

It should also be noted that when comparing the evidence for these two interventions, it was not always possible to distinguish the effects of location (nearby local tribunal vs. more distant court) from the effects of procedure (less formal vs. more formal). This may negatively impact the precision of the comparison and final analysis.

Recommendation

 

Decision by a tribunal in the community

Decision by the nearest court

Local tribunals conduct proceedings in their local language, reducing the risk that their decisions are misunderstood by the community members most affected by them (Ojok).


Local tribunals are inexpensive to access relative to courts (Wehrmann 2008; Witchger, 2018). Accessibility is particularly important in land disputes, for which ‘‘effective resolution…requires mechanisms that are closer and more accessible to the people who need them and better attuned to local realities” (Mequanent 2016; Byamugisha, 2013, p. 101). 


Local decision-makers are more accessible, well-known, and recognized at a community level than court authorities (Nucci 2004). “Compared to politicians and government officials, African traditional leaders are ‘more available as problem solvers’” (Mequanent, 2016, p. 171). This availability also makes it easier for local decision-makers to prevent land disputes not easily addressed by the courts from escalating (Nucci 2004).


Decisions made by community tribunals typically aim to preserve (or re-establish) social harmony and trust, mitigate bitterness, diminish tensions between parties, and rehabilitate those involved (Wehrmann 2008; Nucci 2004).


The relative flexibility of the alternative dispute resolution processes typically used by local tribunals makes it more likely they will reach resolutions that reflect local norms relating to the land (Nucci, 2004). This flexibility is particularly valuable for addressing “sensitive issues, such as informal land sale disputes, that were previously mediated outside of the legal system” (Mequanent, 2016, p. 177).


Local tribunals made up of customary and/or indigenous authorities may be particularly adept at adjudicating land disputes due to their intimate relationship with the land. Customary authorities traditionally serve as keepers of communal land and memory about land boundaries (Witchger 2018). “In many parts of the world, indigenous peoples have a very special relation to their land. For them, land is more than an economic or productive asset. It represents home, binds together past, present and future and constitutes their spiritual base. Land being such a complex issue for them, disputes about it have to be settled in a more comprehensive manner.” (Wehrmann, 2008, p. 4; Devasish Roy 2014).


Many local tribunals actively involve the wider community in the decision-making process, which helps to create a “social safeguard from future encroachment or conflict” (Ojok, p. 6). This community involvement – for example, in the form of  “public re-demarcaction or re-opening of [land] boundary” (Ojok, p. 6) – may produce more sustainable resolutions.

Courts’ adherence to the law and strict observation of procedural rules reduces uncertainty around their decision-making process and the precedents that inform their decisions (Ojok).


Courts are well-equipped to interpret state legislation, which is often necessary to resolve land disputes involving land titles (Van Leeuwen & Haartsen 2005).


A decision by the court may be necessary to resolve an impasse between parties that cannot be resolved through more conciliatory, community-based conflict resolution mechanism (Kakooza 2007).


Adjudication in court is best for resolving land disputes involving multiple, complex issues (Kakooza 2007).


Adjudication in court is more appropriate for serious cases that require punishment and deterrence (Wehrmann 2008).

 

Decision by a tribunal in the community

Decision by the nearest court

Local tribunals are very often made up of male elders whose do not adequately represent marginalized groups, which may result in unfair treatment of those groups (Witchger 2018; Van Leeuwen & Haartsen 2005). As a result, their decisions are not always in compliance with international standards of equity and may be biased against women, young people, or strangers to the community (Mequanent 2016; Van Leeuwen & Haartsen 2005; Wehrmann 2008). Many traditional dispute resolution mechanisms in Kenya for example do not recognize women’s rights to own land and allow women limited access to its use (Witchger 2018).


Local tribunals tend to demand remuneration for their decisions, which can limit their accessibility and make them vulnerable to corruption (Van Leeuwen & Haartsen 2005). Decisions made by such tribunals may in turn be biased toward wealthy and powerful members of the community (Mequanent 2016). 


The oral tradition of many local tribunals is not well recognized, meaning local decisions can easily be oversimplified or overridden by central decision-making processes. The lack of legal recognition of decisions made by customary authorities makes it more difficult for parties to prove the validity of these decisions and enforce them (Nucci 2004; Mathys & Vlassenroot 2016; Leeuwen & Haartsen 2005). Enforcement of the outcome relies heavily on the good will of the parties and social pressure. Written records (if any are kept) of agreements are not often well-maintained and can be difficult to trace (Ojok; Mequanent 2016). 


Local tribunals in rural areas are not as well-equipped as the courts to deal with urban land disputes (Nucci 2004).


The moral authority of decisions made by local tribunals is increasingly limited (Wehrmann 2008). Generational changes and shifting social values may undermine the moral force of decisions made by customary authorities (Mequanent 2016; (Wehrmann 2008).


The relative flexibility and accessibility of local decision-making processes makes the quality of outcomes they deliver for people more variable and unpredictable. “Many [arbitration mechanisms at the community level] try to attract disputants and manipulate disputes from which they believe they can profit…although the threshold to engage with these mechanisms is usually much lower for small farmers than is the case for formal justice, the outcomes of these dispute resolution and arbitration efforts tend to become negotiable and unpredictable. This limits the chance that disputants will find sustainable settlements or resolutions for their conflicts” (Mathys & Vlassenroot, 2016, p. 3).

Compared to local decision-making, adjudication in court is costly. Parties have to pay file registration fees and bear the costs associated with transportation and in some cases, accommodation (Mequanent 2016). This may disproportionately impact women who experience discriminatory decision-making at a local level and have no recourse in the formal courts due to the high costs of accessing them (Witcher 2018).


Adjudication in court is often delayed by case backlogs in the courts, making it more time-consuming (Wehrmann 2008; Mequanent 2016).


The adversarial process by which courts make decisions tends to encourage protracted litigation by those who can afford it (Van Leeuwen & Haartsen 2005). Furthermore, court proceedings are seen by many as a way of escalating, prolonging and/or deepening conflict rather than reaching a resolution (Nucci 2004; Leeuwen & Haartsen 2005; Ojok). 


Decisions made in court are not always enforced or followed through on (Leeuwen & Haartsen 2005). A 2010 survey in the Eastern Congo (North Kivu) indicated that “given the partiality of the judiciary and the ambiguity of land legislation, judgments decided by the formal justice system do not guarantee that conflicts are resolved. Moreover, given the weak presence and peculiar workings of state services in the Congo, which are often heavily influenced by patronage, the execution of judgments on the ground remains a considerable challenge” (Mathys & Vlassenroot, 2016, p. 2).


Court judgements are not immune from manipulation and corruption (Leeuwen & Haartsen 2005). Court judgements are based on a balance of probabilities. This means that they are not entirely based on truth, and may be subject to manipulation and corruption (Ojok). The inaccessibility and perceived corruption of the state-led justice system in the Eastern Congo, for example, is the reason why “disputants resort to a multitude of alternative conflict resolution, mediation and arbitration mechanisms, involving a wide range of state and non-state actors and structures” (Mathys & Vlassenroot, 2016, p. 2).


Court authorities may make decisions that favor the party with more resources (Leeuwen & Haartsen 2005). Even if court authorities (judges or juries) are unbiased in their decision-making, more affluent parties will benefit from their ability to hire a better lawyer to represent them (Wehrmann 2008; Ojok).

Taken together, the available research suggests that whereas seeking a decision from the nearest court may be appropriate for particularly complex or serious ownership or use of land disputes that require legal analysis of land titles, seeking a decision by a tribunal in the community is generally more conducive to the well-being of the parties involved.

 

Though the undesirable outcomes of seeking a decision from a local tribunal and of seeking a decision from the nearest court are roughly equal, the desirable outcomes of the former clearly outweigh those of the latter. Although they do not always adequately represent historically marginalised groups, local decision-making processes offer advantages of accessibility, intimate understanding of community norms and history around land use and ownership, and attention to social harmony and trust that adversarial adjudication in court lacks. Therefore, seeking a decision from a tribunal in the community in ownership or use of land disputes – at least as a first step – is preferred.

Taking into account the balance of outcomes, the value of quick, accessible, and culturally appropriate decisions for land owners and users, and the quality and consistency of the evidence, we make the following recommendation: For parties to an ownership or use of land dispute, seeking a decision from a tribunal in the community is more conducive to well-being than seeking a decision from the nearest court.

Signing a written agreement and physically marking agreed upon boundaries

Interventions and evidence

During the orientation process of the available literature, we identified the following interventions as most plausible for accepting in ownership and use of land disputes:

  • Signing a written agreement 
  • Physically marking agreed upon boundaries 

 

To be successful, a dispute resolution process must lead to an agreement that is considered legitimate by all parties. Once such an agreement around land use and ownership has been made, it is important for the parties involved to demonstrate their commitment to and ownership of the outcome. This is most often achieved by signing a written agreement or physically marking the agreed upon boundaries. These distinct interventions can also be combined in a way that is mutually reinforcing.

 

Signing a written agreement

 

One way for parties to an ownership and use of land dispute to accept and formally document their boundary agreements is to sign a written agreement, sometimes known as a “memorandum of understanding” (Knight et al., 2017, p. 7). Memoranda of understanding (MOUs) are written agreements that generally contain “general obligations of the parties to implement the settlement fully, prevent any recurrence of the dispute and refrain from litigating the matter elsewhere” (Norton, 2011, p. 23). 

 

“Such MOUs [or other written agreements] might include:

  • A written and pictorial description of the agreed boundaries of the land at issue;
  • The terms of the negotiated agreement;
  • The plan for carrying out the negotiated agreement;
  • Any penalties or actions that will occur if the parties violate the agreement;
  • Signature lines for as many witnesses as would like to sign; and
  • Any other provisions the parties feel are necessary” (Knight et al., 2017, p. 174).

 

The neutral third party helping to resolve the dispute and draft the written agreement should be “alert to the possibility of rights in land other than formal ownership, even if these are not directly protected by statutory law, [as] it may sometimes be appropriate to document them in any settlement agreement.” In many countries around the world, “one person may have the legal ownership of the land; [while] another may lease or share-crop part of it; a local trader may have a mortgage or informal security on the land to secure the price of seeds or other inputs sold to the farmer on credit; pastoralists may graze their stock on it or use a watering hole there; women may customarily collect firewood from it; [and] local subsistence farmers may be permitted to glean any remaining grain after harvest” (Norton, 2011, p. 24).

 

Once drawn up, a written agreement should be signed by the parties to the ownership or use of land dispute and any neutral third parties involved. “The moment of signing should ideally be captured in a photograph or video. Both parties and the [third party] should keep a copy for their records” (Knight et al., 2017, p. 173).

 

Physically marking agreed upon boundaries 

 

As an alternative to signing a written boundary document, parties to an ownership or use of land dispute can honour their agreement by physically demarcating the land. Specifically, parties can “plant boundary trees or place other locally-accepted markers to indicate the limits of their lands” (Knight et al., 2017, p. 7; 166). As described below, such markers may include rivers, roads, large boulders, or corner strokes in addition to trees.

 

“Each culture and region tends to have certain trees or bushes that people have used traditionally to mark boundaries. For example, in Liberia they use “Cotton” trees because they grow to be exceptionally tall or “Soap” trees because they are fire-resistant. In Uganda, they use “Omara-mara” trees, because one can plant branches in the ground like fence poles and the branches will root and become trees. In other cultures, people carve into tree trunks to indicate boundaries. Alternatively, [parties] may choose rivers, roads or large boulders as their boundary markers” (Knight et al., 2017, p. 180). ”In urban settings, ‘corner stones’ (actually concrete blocks with the parties’ initials on them) are often put in place” (Norton, 2011, p. 25). 

 

“Recording the…planting of boundary markers on a camera or smartphone is another form of documenting the agreements and creating evidence that can be useful if boundaries are ever disputed. These recordings can be stored with other digital records, such as maps or boundary marker coordinates” (Knight et al., 2017, p. 177).

 

Another way to demarcate land is by conducting a land survey. Land surveying is “a means of making relatively large-scale, accurate measurements of the earth’s surfaces. It includes the determination of the measurement data, the reduction and interpretation of the data to usable form, and, conversely, the establishment of relative position and size according to given measurement requirements.” Surveying has two similar but opposite functions: 1) the determination of existing relative horizontal and vertical position, such as is used for the process of mapping, and 2) the establishment of marks to control construction or to indicate land boundaries” (Encyclopedia Britannica).

 

“Facilitators [or other neutral third parties may] support [parties] to record measurements of their boundaries using coordinates collected with a Global Positioning System (GPS) device, by using high resolution satellite imagery, or through a land survey completed by a licensed surveyor” (Knight et al., 2017, p. 7; 166). Additional measures may be needed depending on the country where the survey takes place. 

 

Liberian law, for example, “requires that all neighbours and other relevant parties [be] served with notices of an intended survey.” As part of its land conflict resolution work in Liberia, the Norwegian Refugee Council (NRC) “also arranges for details of the survey to be broadcast on community radio and advertised in local newspapers. NRC requires the parties to be present for the survey and they are also asked to provide any necessary labour for clearing the areas of land over which the survey lines are being measured, which also acts as a demonstration of their commitment to the process. The surveyor and his staff take ‘field notes’ which are used to create the final survey drawing” (Norton, 2011, p. 25).

 

In addition to legal and geographic considerations, the most effective land demarcation technique depends on the local culture and conception of landholding. For example, “there are few reliable maps of the correct scale in Liberia, especially for rural areas, and it is common to identify boundaries by relevant natural features rather than formal survey – but this does suggest that Liberians do not necessarily conceptualise their landholding in a neatly ‘bounded’ cadastral fashion. This may in turn reflect a distinctively ‘African’ view of land as being a community resource where boundaries are less relevant, or the fact that rural landholding in Liberia are often fairly large because of the comparatively abundant supply of land” (Norton, 2011, p. 26). Furthermore, surveying can “create costs that are not affordable or the poor” (Werhmann, 2017, p. 94).

 

Wehrmann notes however, that “especially in cases of boundary conflicts between neighbours, clans or administrative units, surveying should accompany the boundary-setting. How accurate, and therefore costly, this should be depends on the value of the land as well as the characteristics of the conflict and the relation between the conflicting partners” (Wehrmann, 2017 p. 94).

For parties to an ownership or use of land dispute looking to commit to and take ownership for an agreement (accepting), is signing a written agreement or physically marking agreed upon boundaries more effective for well-being?

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

 

For this PICO question, keywords used in the search strategy are: land disputes demarcation; land boundary markers; land disputes written agreement; land dispute acceptance

The main sources of evidence used for this particular subject are:

  • Rachael Knight, Marena Brinkhurst and Jaron Vogelsong, Community Land Protection: Facilitator’s Guide, Namati (2017)
  • Babette Wehrmann, Understanding, Preventing, and Solving Land Conflicts: A Practical Guide and Toolbox, GIZ (2017)
  • Markus Goldstein, Kenneth Houngbedji, Florence Kondylic, Michael O’Sullivan, and Harris Selod, Formalizing Rural Land Rights in West Africa: Early Evidence from a Randomized Impact Evaluation in Benin, World Bank Africa Region & Development Research Group (2015)
  • Gregory Norton, Searching for Soap Trees: Norwegian Refugee Council’s Land Dispute Resolution Process in Liberia, Norwegian Refugee Council (2011)
  • Adriana Herrera and Maria Guglielma da Passano, Land Tenure Alternative Conflict Management, Food and Agriculture Organization of the United Nations (2006)

 

“Community Land Protection: Facilitator’s Guide” is a practical manual for grassroots advocates working to help communities protect their customary claims and rights to land and natural resources. It was written by land and community empowerment experts Rachel Knight, Marena Brinkhurst, Jaron Vogelsang and published by Namati in 2017. The guide is intended for facilitators working to support communities to protect their land claims, and describes Namati’s approach to community land protection in detail. Although it is based on a wealth of institutional experience, it is an expert opinion with a very low quality of evidence, according to the GRADE method.

 

“Understanding, Preventing, and Solving Land Conflicts: A Practical Guide and Toolbox” is a practice-oriented report written by land expert and consultant Dr. Babette Wehrmann and published by the German Society for International Cooperation (GIZ) in 2017. It is based on the expert opinion of the author, the expert opinion of other customary land conflict resolution experts consulted, and a wide range of land research. It is best categorized as a comprehensive and authoritative export opinion drawing from GIZ’s extensive fieldwork experience. Although the quality of evidence would normally be ranked as very low according to the GRADE method, it is upgraded to low due to the extensive empirical research cited in the bibliography and due to the fact that this is a revised and updated version of the original 2008 report.

 

“Formalizing Rural Land Rights in West Africa: Early Evidence from a Randomized Impact Evaluation in Benin” is a policy research working paper written by Markus Goldstein, Kenneth Houngbedji, Florence Kondylic, Michael O’Sullivan, and Harris Selod. It was published in 2015 by the World Bank Africa Region and the Development Research Group. The paper presents early evidence from the first large-scale randomized-controlled trial (RCT) of a land formalization program. Specifically, it looks at the links between land demarcation and investment in rural Benin in light of a model of agricultural production under insecure tenure. The quality of evidence presented in this paper is graded as moderate because it comes from a large-scale RCT.

 

“Searching for Soap Trees: Norwegian Refugee Council’s Land Dispute Resolution Process in Liberia” is a thematic report written by lawyer and land specialist Gregory Norton and published by the Norwegian Refugee Council in 2011. It is the third in a series of report published by the NRC on housing, land and property rights, land tenure, and land-related conflict in Liberia, where NRC has worked to help individuals resolve land disputes resulting from the 1989-2003 civil conflict since 2006. It contains original research and analysis based on NRC’s fieldwork in Liberia. This research is not empirical, and therefore the report can best be categorized as an expert opinion, with a very low grade of evidence.

 

“Land Tenure Alternative Conflict Management” is a 2006 land tenure manual published by the Food and Agriculture Organization of the United Nations (FAO), and written by land tenure  experts Adriana Herrera and Maria Guglielma da Passano. It is intended to be a tool for practitioners, and focuses on “how to manage and resolve conflicts over land tenure rights, security of tenure and land access” in a way that “reduces uncertainty and improves well-being, particularly for the most vulnerable in society” (Herrera & Guglielma da Passano, 2006, p. 1). The development of the manual (as well as several other related research products) was informed by a 2002 Needs Assessment Survey carried out among conflict management experts in 42 countries. Although this might normally be classified as an expert opinion, the quality of the evidence is upgraded to low because of the volume of fieldwork and related field research (including issue papers, case studies, and regional workshops) supporting it.

 

Quality of evidence and research gap

 

According to our research method, we grade the evidence comparing two dominant approaches to accepting – signing a written agreement and physically marking agreed upon boundaries – as very low. There is a dearth of empirical and non-legal research on techniques that parties to ownership or use of land disputes can use to demonstrate their commitment to and ownership of an agreement. Further research that explicitly compares the interventions compared below and explores the extent to which they are complementary and/or mutually reinforcing is needed.

Recommendation

 

Signing a written agreement 

Physically marking agreed upon boundaries 

Signing a written agreement increases respect between the parties by creating a record of their will to cooperate and take responsibility for the agreed upon terms.

“A major advantage of local [land use agreements] is that they re-establish mutual respect and that they document the will to cooperate. By agreeing together on the future rules and sanctions, stakeholders assume responsibility and feel much more obliged to adhere to the rules, even accepting the payment of fines in case of offence against the [agreement]” (Wehrmann, 2017, p. 100).


Signing a comprehensive written agreement may help the parties avoid costly and time-consuming litigation of an ownership or use of land dispute at a later stage. NRC staff suggest that parties rarely litigate the same dispute in other venues if a properly drafted memorandum has already covered all the relevant issues (Norton, 2011, 23).


If an agreement is not honoured and enforcement becomes necessary, the existence of a formal written agreement makes it possible for one party to sue the other other or take the original conflict to another resolution forum such as a court. “A negotiated agreement may have legal authority if it meets the criteria of a contract in the formal law of the country” (Herrera & da Passano, 2006, p. 82-33).

Physically marking agreed upon boundaries in the final stages of the dispute resolution process tends to increase the durability of an agreement. A land survey or demarcation “often plays a key role in ensuring a durable settlement. It may be required in order to establish or publicly document a particular boundary, to delineate a specific landholding, or to produce a diagram which will be attached to a transfer deed for private land” (Norton, 2011, p. 25).


Demarcating landholdings through the implantation of cornerstones specifically can help the parties as well as the broader community to resolve overlapping land claims and prevent future disputes related to land encroachment. “The cornerstones serve as immediate, long-lasting benchmarks to detect and resolve future land encroachment disputes. Moreover, they represent a more standardized substitute to traditional methods, such as tree-planting, used my landholders to mark the frontier of their parcels…Demarcation per se does not necessarily amount to enforceable land rights, but the process that surrounds demarcation allows each community to unify competing and overlapping conceptions of land rights” (Goldstein et al., 2015, p. 4).


Though more difficult to enforce in the courts, agreements represented by physical markers or a land survey can be enforced in the community if the dispute resolution process has taken place under customary rules. “For example, the norms of the community may establish the enforcement of the agreement if it is witnessed by the elders or other eminent people” (Herrera & da Passano, 2006, p. 82). “Signing witnesses can act as social enforcers over time” (Knight et al., 2017, p. 173).


Demarcation through a land survey facilitates formal land registration, which can increase the land tenure security of the parties involved. “In some contexts, communities may not want to survey or GPS their boundaries, however, if the [parties involved] want to apply for formal registration it is likely that the government will require some form of technical measurement of boundaries” (Knight et al., 2017, p. 175).

 

Signing a written agreement

Physically marking agreed upon boundaries 

Signed written agreements that are missing specific information or do not accurately reflect the intentions of the parties may not be enforceable by the courts. The legal enforceability of a written agreement may depend on the availability of a trained mediator who can help the parties draft an accurate and understandable agreement. According to legal practitioners involved in land dispute resolution in Liberia, “it is unlikely that the parties (or NRC) would ever go to court to compel performance of obligations under the memorandum or seek damages for breach of it but it would be important that such a memorandum is recognised by the courts as representing binding settlement of the dispute from which the parties cannot withdraw. In order for the courts to give effect to a contract, it must accurately and clearly reflect the intentions of the parties, and so it is desirable that the content of the parties’ obligation is as specific and unambiguous as possible. This may require [a] mediator to help the parties in tightening up the exact wording of what they have agreed, which can be quite challenging if translation into local languages is required” (Norton, 2011, p. 43). “Ideally, the written agreement should [also] be drafted so that it is simply enough for everyone to understand” (Knight et al., 2017, p. 174). This may be a difficult balance to strike in practice.

In some instances, the final, physical, and in some cases technical nature of land demarcation may re-instigate conflict instead of helping to solidify an agreement. “In some communities, the [boundary] marking process may cause conflict because of the final, physical nature of the activity” (Knight et al., 2017, p. 180). As for land surveys, “a frequent bone of contention is the ‘commencement point’ …since the metes and bounds method requires the surveyor to follow or record particularly compass bearings and distances in order to cover all four sides of the plot. A number of NRC surveys fail or have to be re-done because the parties cannot agree on the commencement point or disagree with some other component of the surveying methodology…it is not always clear that they understand the technical basis of the survey and its implications for them, or what is involved in the surveying processes. In some cases, this decision [to agree to a particular surveying method] simply serves to delay the arguments until the surveying process; in others, the implications only become clear when the survey is in progress and one party realises that they may ‘lose’ a certain area of land because the true acreage figure is smaller than the one in their tribal certificate” (Norton, 2011, p. 25).


Agreements represented by land markers are more difficult to enforce in the courts. As established in the previous section, land “demarcation per se does not necessarily amount to enforceable land rights” (Goldstein et al., 2015, p. 4). “Informal agreements such as unwritten agreements [represented by land markers] may be enforced under formal law, but much more effort is required in court and the outcome of the process is much less certain” (Herrera & da Passano, 2006, p. 82).

Taken together, the available research suggests that both signing a written agreement and physically marking agreed upon boundaries help to demonstrate the commitment of the parties to an ownership or use of land dispute and increase the likelihood that they will cooperatively carry out what they have agreed. 

 

Signing a written agreement achieves this by creating a record of the parties’ willingness to cooperate and take responsibility for the terms of the agreement. If carefully and comprehensively drafted, the existence of a signed written agreement may also reduce the likelihood of litigation related to the dispute at a later stage. Physically marking agreed upon boundaries achieves this by publicly establishing and documenting a particular boundary. Demarcation through a more permanent marker, such as cornerstones, has the additional benefit of helping the broader community reconcile competing and overlapping conceptions of land rights and prevent future encroachment.

 

Whereas a signed written agreement is generally easier to enforce in the courts, physical markers may be a more visible and practical way of ensuring that an agreement is enforced within a community. The extent to which each intervention helps the parties’ agreement to be enforced depends largely on the availability of an authoritative third party. A written agreement may not be legally enforceable unless it is drafted with the support of a trained mediator, who can describe exactly what has been agreed and ensure that its terms are correctly translated from or into the local language. Similarly, physical markers are more likely to facilitate enforcement of an agreement if the demarcation process is witnessed by elders or other eminent members of the community where the dispute took place.

 

For both interventions, there is a risk that the accepting process itself becomes a new source of conflict. This may occur in the signing process – if the terms of the agreement are not sufficiently accurate or understandable to the parties involved – or due to technicalities or disagreements that arise in the process of demarcating the land.

 

The balance of the outcomes between signing a written agreement and physically marking agreed upon boundaries is therefore roughly equal. When used together, these interventions can be mutually reinforcing.

Taking into account the balance of outcomes, the benefits for land owners and users, and the quality and consistency of the evidence, we make the following recommendation: For parties to a ownership or use of land dispute, signing a written agreement and physically marking agreed upon boundaries are both conducive to well-being. Their relative effectiveness depends on the setting and availability of third parties in the dispute resolution process. Either intervention – or a combination of the two – is preferable to doing nothing to facilitate and represent the parties’ acceptance of a land agreement.

Whether parties to an ownership or use of land dispute should reinforce their agreement by signing a written agreement or physically marking agreed upon boundaries may also depend on the specific land rights under dispute. Agreements regarding land use rights – as opposed to land ownership rights – may be harder to represent through physical markers and may therefore best be reinforced through a signed written agreement, such as an MOU.

Perform a public ceremony and formally registering the land

Interventions and evidence

During the orientation process of the available literature, we identified the following interventions as most plausible for ensuring compliance with decisions and achieving closure (stabilising) in ownership and use of land disputes:

  • Performing a public ceremony
  • Formally registering the land

 

Once the parties to an ownership or use of land dispute have accepted their agreement and demonstrated their commitment to its terms, an additional step is needed to ensure their compliance with the agreement and achieve closure. Performing a public ceremony (sometimes called a “reconciliation,” ”signing” or ”witnessing” ceremony) and formally registering the land that was previously under dispute are two of the most common ways of doing this.

 

Performing a public (“reconciliation”/”signing”/”witnessing”) ceremony 

 

“A common feature of all rural land dispute settlements is a reconciliation ceremony that signifies and seals the end of the dispute” (Meitzner Yoder, 2003, p. 21). “In such a ceremony, the people who were in conflict come together in a large public celebration, complete with food, singing, dancing, cultural activities, and other festivities. At these ceremonies, relevant leaders and community members may pledge to help hold the parties accountable to upholding their agreement and creating a network of support and enforcement” (Knight et al., 2017, p. 174).

 

“Even cases that have been settled with government mediation or court decisions must return to this traditional practice to be finally resolved and restore the relationships. Where the parties are assessed fines of animals, these animals are often killed and eaten by the disputants and other members of the community, with portions of the animals being given to traditional leaders and government officials to inform them of the resolution. Nearly all cases [involving large and small rural land disputes in East Timor] highlighted this action of eating meat and drinking palm wine together as critical in the settlement process. In Aileu and other districts [of East Timor], there is also a small woven mat given to the local ritual authority to store in the adat house, as a “file” or record of the finalization of this dispute against any future violations of the agreement” (Meitzner Yoder, 2003, p. 21).

 

Formally registering the land

 

Land registration can be understood as “the process of recording legally recognized interests (ownership and/or use) in land” (McLaughlin & Nichols 1989).

 

In this phase of the ownership or use of land dispute resolution process, “communities follow national legal procedures to formally document and register their lands and receive state documentation of their rights. [Neutral third parties] facilitating this process should review relevant national laws to understand how to best support communities to follow national land registration procedures” (Knight et al., 2017, p. 7).

 

“In Liberia, ‘deeds’ (i.e. transfers of land) are usually prepared by surveyors rather than lawyers, partly because there is a standard, government-approved, form of deed which simply requires the relevant details to be inserted, along with a description of the location and boundaries of the land which is known as the ‘metes and bounds’” (Norton, 2011, p. 23). 

 

In order to truly stabilise a land agreement through formal land registration, it may be necessary to keep the registration document (land deed, title or certificate) in a secure location such as a safety deposit box. This will help ensure that the land is not illegally re-appropriated or sold without the approval of the parties involved (Knight et al., 2017, p. 188).

For parties to a ownership or use of land dispute looking to ensure compliance with their decisions and achieve closure (stabilise their agreement), is performing a public ceremony or formally registering their land more effective for well-being?

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

 

For this PICO question, keywords used in the search strategy are: land dispute resolution; ownership and use of land disputes; land disputes reconciliation ceremony; land conflict reconciliation ceremony; land disputes signing ceremony; land disputes witnessing ceremony; land registration procedures

The main sources of evidence used for this particular subject are:

  • Rachael Knight, Marena Brinkhurst and Jaron Vogelsong, Community Land Protection: Facilitator’s Guide, Namati (2017)
  • Babette Wehrmann, Understanding, Preventing, and Solving Land Conflicts: A Practical Guide and Toolbox, GIZ (2017)
  • Mara Goldman, Makko Sinandei and Laura DeLuca, Conflict Resolution, Land Disputes and Peace-building in Northern Tanzania: The Role of Customary Institutions in Building Peace from Within, Africa Institute of South Africa (2014)
  • Gregory Norton, Searching for Soap Trees: Norwegian Refugee Council’s Land Dispute Resolution Process in Liberia, Norwegian Refugee Council (2011)
  • Laura Meitzner Yoder, Custom and Conflict: The Uses and Limitations of Traditional Systems in Addressing Rural Land Disputes in East Timor, German Technical Cooperation (GTZ) and Direcção de Terras e Propriedades (2003)

 

“Community Land Protection: Facilitator’s Guide” is a practical manual for grassroots advocates working to help communities protect their customary claims and rights to land and natural resources. It was written by land and community empowerment experts Rachel Knight, Marena Brinkhurst, Jaron Vogelsang and published by Namati in 2017. The guide is intended for facilitators working to support communities to protect their land claims, and describes Namati’s approach to community land protection in detail. Although it is based on a wealth of institutional experience, it is an expert opinion with a very low quality of evidence, according to the GRADE method.

 

“Understanding, Preventing, and Solving Land Conflicts: A Practical Guide and Toolbox” is a practice-oriented report written by land expert and consultant Dr. Babette Wehrmann and published by the German Society for International Cooperation (GIZ) in 2017. It is based on the expert opinion of the author, the expert opinion of other customary land conflict resolution experts consulted, and a wide range of land research. It is best categorized as a comprehensive and authoritative export opinion drawing from GIZ’s extensive fieldwork experience. Although the quality of evidence would normally be ranked as very low according to the GRADE method, it is upgraded to low due to the extensive empirical research cited in the bibliography and due to the fact that this is a revised and updated version of the original 2008 report.

 

“Conflict Resolution, Land Disputes and Peace-building in Northern Tanzania: The Role of Customary Institutions” is a chapter in the book Building Peace from Within, which was published by the Africa Institute of South Africa in 2014. The chapter was written by geography, land conflict, and anthropology experts Mara Goldman, Makko Sinandei and Laura DeLuca. It “discusses the important role of customary institutions in peacebuilding in Northern Tanzania, with the focus on Masaai pastoral/agro-pastoral communities” (p. 10). The book, which was edited by Sylvester Maphosa, Laura DeLuca, and Alphonse Keasley, “seeks to examine how successful models of building ‘peace from within’ in the African context function. It draws emerging lessons to provide critical recommendations on policy, practice and academia.” Both the chapter and the book draw primarily from case studies as the basis for their arguments, and can therefore be categorised as expert opinions and ranked as very low sources of evidence.

 

“Searching for Soap Trees: Norwegian Refugee Council’s Land Dispute Resolution Process in Liberia” is a thematic report written by lawyer and land specialist Gregory Norton and published by the Norwegian Refugee Council in 2011. It is the third in a series of report published by the NRC on housing, land and property rights, land tenure, and land-related conflict in Liberia, where NRC has worked to help individuals resolve land disputes resulting from the 1989-2003 civil conflict since 2006. It contains original research and analysis based on NRC’s fieldwork in Liberia. This research is not empirical, and therefore the report can best be categorized as an expert opinion, with a very low grade of evidence.

 

“Custom and Conflict: The Uses and Limitations of Traditional Systems in Addressing Rural Land Disputes in East Timor” is a discussion paper prepared for a regional workshop on “Land Policy and Administration for Pro-Poor Rural Growth” in Dili in 2003. It was written by Laura Meitzner Yoder, a land expert, professor of environmental studies, and the Director of the Human Needs and Global Resources Program at Wheaton College. The paper was sponsored by the German Technical Association (GTZ) in collaboration with the Directorate of Land and Property (DTP) of East Timor. It describes how land disputants in rural East Timor “take their cases to traditional authorities, who hear testimony from disputants and witnesses, consider evidence, observe the disputed land, facilitate and legitimize decisions, and oversee a reconciliation ceremony if the case is resolved” (p. 2). The research looked at 200 cases of large and small land disputes and involved 67 interviews, and can therefore be considered a large empirical study with a moderate grade of evidence.

 

Quality of evidence and research gap

 

According to our research method, we grade the evidence comparing performing a public (“reconciliation”/”signing”/”witnessing”) ceremony and formally registering the land as very low. Although ample research on formal land registration is available, there is a dearth of evidence on its benefits relative to those of more informal procedures used to stabilise and ensure compliance with ownership and use land agreements, such as public ceremonies. There is also a general lack of empirical studies examining the land dispute resolution process in detail. Most of the available evidence comes in the form of case studies or expert opinions based on fieldwork.

Recommendation

 

Performing a public ceremony

Formally registering the land

Performing “such ceremonies and celebrations can…help to validate the legality of the agreement; solidify respect, harmony and goodwill between the parties; and stimulate community-wide accountability to the terms of the agreement” (Knight et al., 2017, p. 174).


Evidence suggests that parties to an ownership or use of land dispute who perform a public ceremony are less likely to violate the agreement or re-open the matter due to the social and material costs associated with doing so. “Once these ceremonies have been performed, disputants very rarely take the case to another authority or transgress the agreement, because the social and material consequences of doing so would be quite high, including a fine several times what was paid in the reconciliation itself. In cases which are forwarded to government institutions or courts, the disputants and traditional authorities usually agree to that step before going through the reconciliation ceremony” (Meitzner Yoder, 2003, p. 21).

Formally registering the land stabilises the agreement of the parties by making it legally valid and easier to enforce, which benefits the parties in the form of increased land tenure security. “Carrying out the required registration formalities so that [a newly produced land] deed” ensures that it “is legally valid and enforceable” (Norton, 2011, p. 23). “Formal government registration is the strongest form of rights documentation” (Knight, 2017, p. 187).


Formal registration following an agreement contributes to tenure security and helps prevent re-escalation of the dispute. “The creation of tenure security should be part of the land conflict resolution process. Once all legitimate tenure rights held by different conflict parties have been identified and a solution over future access to and use of the land [has] been achieved, tenure security should be established to prevent a re-escalation of the conflict. The creation of tenure security can have various forms, individual titling being only one of them” (Wehrmann, p. 95).

 

Performing a public ceremony

Formally registering the land

Depending on the setting of the ownership or use of land dispute resolution process, the authority of the customary leaders or institutions involved in the public ceremony may be inadequate to stabilise the agreement within the community. “Many customary institutions and techniques [such as reconciliation/signing/witnessing ceremonies] have changed over time through colonial interventions, independent state actions or other external influences. At the same time, certain aspects of customary institutions may be inadequate for addressing the scale and intensity of contemporary conflicts” (Goldman et al., 2014, p. 153).

Formally registering land in the aftermath of a dispute can be costly. Land registration procedures typically require the parties involved to pay various legal and informal fees (Norton, 2011, p. 23).


In addition to the cost, lack of understanding about formal land registration procedures may deter parties from proceeding with registration once they are in possession of a land deed or title. “The registration process is fairly complicated and bureaucratic and this complexity and the cost deter many Liberians from completing the registration procedure. In addition, some people wrongly believe that mere possession of a land deed is sufficient” (Norton, 2011, p. 23). “It is therefore essential that parties receive information and counselling about the registration process in language that they can understand” (Norton, 2011, p. 24).


The value of formally registering land depends on the capacity of the land registration system in a given country to progress land registration applications, or the availability of neutral third parties who are able to assist in capacity building. “There is little point in encouraging and assisting [parties to ownership or use of land disputes] to submit large numbers of registration applications if the system cannot in fact process them. It may sometimes be necessary to [for neutral third parties involved] to consider carefully targeted capacity building assistance, which can be as simple as helping to ensure that document ledgers are properly indexed” (Norton, 2011, p. 24).


“Some communities may be skeptical of – or directly opposed to – registering their land claims with the government” (Knight et al., 2017, p. 187). This skepticism may be a result of the tax burdens associated with land registration or fears related to the parties’ immigration status, for example.

Taken together, the available research suggests that both performing a public ceremony and formally registering land have stabilising effects and are generally conducive to the well-being of the parties to an ownership or use of land dispute. There are also potential challenges associated with both, the relevance of which depends on the setting of the land resolution process.

 

Both public ceremonies and land registration procedures have the effect of helping to validate and reinforce the parties’ agreement and prevent re-escalation or re-opening of the dispute. Public ceremonies do this by fostering harmony and goodwill between the parties and stimulating community-wide accountability to the agreement. Formal land registration achieves this by contributing to tenure security and making the agreement (and land rights protected by it) easier to uphold/enforce.

 

Although there are practical difficulties potentially associated with both interventions (depending on the location and cultural context of the dispute), neither of the compared interventions is likely to harm the well-being of the parties involved. Performing a public ceremony will have a less stabilising effect in communities where the customary authorities or institutions that would typically facilitate such a ceremony are less well-recognised or respected. The value of formally registering land will also depend on the capacity of the land registration system in a given country, the complexity of the required procedures, and legal and informal costs of doing so. 

 

Performing a public ceremony and formally registering the land are roughly equal in the benefits they provide as well as the practical difficulties potentially associated with each. When used together, these interventions can also be mutually reinforcing.

Taking into account the balance of outcomes, the social and material benefits for land owners and users, and the quality and consistency of the evidence, we make the following recommendation: For parties to a ownership or use of land dispute looking to ensure compliance with their decisions and achieve closure (stabilise their agreement), performing a public ceremony and formally registering the land are both conducive to well-being. Their relative effectiveness depends on the local context and culture. 

 

Performing a public ceremony is most effective in communities where the customary leaders and institutions that would typically be involved in such a ceremony are well-respected and can confer legitimacy on the stabilising process. Formally registering one’s land is most effective in settings where land registration systems are highly functional and where practical barriers associated with the registration process are low.

 

With that said, either intervention – or a combination of the two – is preferable to doing nothing to ensure parties’ compliance with the land agreement and achieve closure.

Monitoring outcomes of a resolution process and ensuring sustainability

Interventions and evidence

During the orientation process of the available literature, we identified the following interventions as most plausible for monitoring outcomes of a resolution process and ensuring sustainability (improving) in ownership and use of land disputes:

  • Assuming that the signing of an agreement marks the end of the resolution process (not monitoring ownership and use of land agreements)
  • Seeing resolution as a continued process in which successes can be measured from the time when parties begin to engage with each other up to the implementation of the results of the agreement (monitoring ownership and use of land agreements)

 

“A final and optional stage of [a land dispute resolution process] involves disputants completing procedural closure by designing and implementing monitoring mechanisms; identifying and developing dispute resolution procedures to handle any potential future differences or conflicts that may arise; and implementing their substantive agreement” (Moore, 2014, p. 477).

 

“Implementing an agreement means that the conflict parties act to put that agreement into operation, thus ending the dispute. Most agreements require that the conflict parties continue to carry out specific actions and to behave in certain ways. The success of an agreement depends on the implementation plan and the process that puts this plan into operation. It also depends on the degree to which the parties feel a sense of ownership in the agreement, as well as on their capacity to fulfil its terms” (FAO, 2005).

 

“There are different ways of framing agreements. These are based on the preferences of the participants and often on the nature of what is being agreed or addressed. Sometimes people want to include an implementation plan in the detailed agreement that emerges from the conflict management negotiation process. In these cases, the negotiations finish when the agreement has been formally recognized” (FAO, 2005). 

 

These types of agreements are “‘self-executing’ in that disputing parties have completed all necessary promises and exchanges at the end of mediation, and no additional ones are required in the future to accomplish substantive or procedural closure” (Moore, 2014, p. 477). “‘A self-executing agreement is one which is either: 1) carried out in its entirety at the time it is accepted, or 2) formulated in such a way that the extent to which the players adhere to its terms will be self-evident’ (Young, 1972, p. 58)” (Moore, 2014, p. 478).

 

“In other cases, people may want to plan implementation and monitoring later, during separate rounds of negotiations, or as an ongoing process of bargaining. In these cases, the agreement will commit the conflict parties to discussing and planning implementation and monitoring in the future” (FAO, 2005). This is typically the path taken in non-self-executing agreements. “A non-self-executing agreement…is one which requires continuing performance which may be difficult to measure in the absence of special monitoring agreements’ (Young, 1972, p. 58)” (Moore, 2014, p. 478).

 

Assuming that the signing of an agreement marks the end of the resolution process (not monitoring ownership and use of land agreements)

 

Parties to an ownership or use of land agreement may assume that the signing of an agreement marks the end of the resolution process because the agreement is self-executing, meaning that its terms have been immediately carried out or “the extent to which the [parties] adhere to its terms will be self-evident” (Moore, 2014, p. 478).  

 

This assumption may also be made because the parties simply do not consider it necessary or worthwhile to follow up on their respective obligations once the agreement has been signed. If the parties do not see their relationship as ongoing (for example, because they do not live side by side), they may prefer not to see one another again after the dispute has been resolved.

 

Regardless of the reason for this assumption, its practical outcome is that the parties to an ownership or use of land dispute do not monitor the outcomes of their agreement once it has been signed.

 

Seeing resolution as a continued process in which successes can be measured from the time when parties begin to engage with each other up to the implementation of the results of the agreement (monitoring ownership and use of land agreements)

 

Seeing land dispute resolution as a continued process in which successes can be monitored throughout requires developing arrangements and mechanisms to monitor compliance and accommodate changing circumstances. In addition to identifying “general and specific steps required to implement the decision,” parties must agree upon a number of issues in order to make these monitoring arrangements successful (Moore, 2014, p. 480). 

 

These issues include:

  • Standardized measures of compliance
  • The roles and responsibilities of the parties involved
  • Communication and methods of sharing information
  • Transparency and flexibility 
  • Time horizon

 

Standardized measures of compliance

 

“Whatever the process used to obtain them, monitoring and implementation plans are first and foremost the responsibility of the negotiation parties, who must be willing and able to comply with them. Agreements must therefore always be based on the parties’ realistic assessments of what they are willing and able to do” (FAO, 2005). 

 

“Effective monitoring depends on parties clearly defining the performance standards by which compliance is to be measured. They need to decide which actions constitute breaking the agreement” (FAO, 2005) and come to “a consensual agreement about the criteria used to measure successful compliance” (Moore, 2014, p. 480).

 

The roles and responsibilities of the parties involved

 

The parties should clearly establish who will be responsible for implementing various components of the agreement and the specific responsibilities they will have (FAO, 2005). In particular, it is important for the parties to decide whether a neutral third party should be brought in to monitor compliance (Moore, 2014, p. 480).

 

“The negotiation parties may sometimes feel more confident if mediators or other trusted third parties take the role of neutral monitors who can help to sort out any problems that arise. The specific role of a neutral monitor is decided by the conflict stakeholders. They need to decide whether or not to use a neutral monitor, and whether or not an existing mediator – or other third party – should assume this role. For the trusted third party, great care is also needed in assessing whether he/she has the ability to fulfill such a role, particularly where resources and time must be allocated.

 

[Third party] monitors can take one of several roles, for example, they can be:

  • ‘whistle-blowers,’ who merely indicate that an agreement has been violated (broken);
  • ‘enforcers,’ who have a more powerful role in overseeing implementation, and possibly participate in future negotiations over the grievances caused by non-compliance” (FAO, 2005).

 

Third party monitors who take a more powerful role in overseeing implementation may be expected to carry out the following tasks:

  • Visiting the site [of the land that was under dispute] and/or being easy to contact in times of trouble. “If a mediator is not easy to reach, it may be useful to find a local, trusted intermediary who can contact the mediator whenever necessary, and solve minor incidents him/herself” (FAO, 2005).
  • Helping the parties to establish sanctioning mechanisms, communication channels and options for dealing with stakeholders that do not follow from the agreement.
  • Facilitating the revisiting of events to reflect on progress achieved: This can help to restore relationships, deepen trust and provide opportunities for planning joint activities for the future (FAO, 2005).

 

In the context of ownership and use of land disputes specifically, third party monitors may also support the parties in the following ways:

  • “photocopying, scanning, and duplicating [land] deeds [or titles] to avoid losses, bad weather, abuse and counterfeits;
  • assessing, with stakeholders, how the [resolution] process carried out up to the signing of an agreement, positively or negatively affected the climate of the relationship, friendship or affection that had been damaged between the parties previously separated by a conflict….
  • collecting the feedback from parties to understand how the [resolution] process helped them or not, and how the process can be improved;
  • putting in place of systems of assessing impacts, including satisfaction and perception surveys, (tenure security perception survey at the beginning, and follow-up throughout the process to assess the changes, frequent field visits on the site of the conflict)…
  • identifying and strengthening the capacities of champions, messengers, outreach officers, torchbearers in the community (traditional, community leaders, women associations) who can carry the message and continue land [resolution] initiatives…
  • considering mechanisms for the institutionalization of methods of mediation [or other resolution process]. For example, the methods may be appropriate through existing organizations such as the local land administration, local land commissions, NGOs, traditional authorities, etc., which may become the mediation and security “one-stop-shop” land security. This institutionalisation may help clarify the real or perceived value (legal, social, economic and administrative) of agreements or mediation certificates.” (Remy, Sylla, & Mastaki, 2013, p. 41-43). 

 

Regardless of their particular tasks, the “functions [of a third party monitor] need to be clearly defined, and ownership for implementing the agreement must be with the stakeholders” (FAO, 2005). Third parties that take on a monitoring role also “need to develop a strategy for withdrawing gradually from the scene. They may hand over responsibilities for monitoring to trusted local intermediaries. Depending on the progress in stakeholder relations, they may assist stakeholders to open up new paths for collaboration” (FAO, 2005).

 

In order for the parties’ agreement to be implemented successfully, it is important that all stakeholders – including not only neutral third parties but also “outside parties, such as authorities and specialists” – that need to be involved are identified and explicitly agree to engage in the implementation process (FAO, 2005). 

 

Communication and methods of sharing information

 

The parties should determine how they will keep each other informed about their progress in implementing the agreement. This can be achieved for example through period meetings, telephone calls, or more formal reporting mechanisms (FAO, 2005). As outlined in the previous section, it can also be facilitated by a third party monitor.

 

Transparency and flexibility

 

The parties should also identify the mechanisms or procedures needed to ensure that the agreement is monitored in a transparent and flexible way (FAO, 2005). Ideally, the parties involved are “transparent not only in collecting data, but in compiling and judging the meaning of the data that they collect. The data must be shared with all involved parties. An effective agreement will also be able to move fluidly between observation, verification, and enforcement as needed” (Ouellet, Beyond Intractability, 2003).

 

The parties should also determine the extent to which they are willing to be flexible about certain components of the agreement, and “what happens if factors beyond the parties’ control make it impossible to implement or maintain the agreement” (FAO, 2005). Parties may want to “allow for potential adjustments to the agreement to accommodate changes in circumstances or to the disputing parties themselves” (Moore, 2014, p. 480) or identify a procedure for coming together for future negotiations if such unintended or unexpected changes occur (FAO, 2005). “If solving these problems requires the involvement of authorities or specialists, some provisional agreement needs to be worked out with them” (FAO, 2005).

 

Time horizon


“Lastly, different conflicts require different time horizons for successful implementation. As levels of intractability rise, it becomes more necessary to extend the time horizon of the implementation regime. However, as the time horizon extends to multi-stage processes, the threat of spoilers and stagnation increases. Agreement monitoring is vital to a successful agreement, but the guidelines for implementation will vary as the level of intractability increases or decreases” (Ouellet, Beyond Intractability, 2003).

For parties to an ownership or use of land dispute looking to improve upon a resolution process and ensure its sustainability, is not monitoring outcomes of the agreement or monitoring outcomes of the agreement more effective for well-being?

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

 

For this PICO question, keywords used in the search strategy are: land mediation outcomes monitoring; land agreement outcomes monitoring; land dispute resolution monitoring; land tenure security survey; monitoring mediation land agreements; monitoring mediation agreements; self-executing land agreements

The main sources of evidence used for this particular subject are:

  • Christopher Moore, The Mediation Process: Practical Strategies for Resolving Conflict, Fourth Edition (2014)
  • Sietchiping Remy, Oumar Sylla, Christol Paluku Mastaki, Guide to Land Mediation: Based on the Experience in the Eastern Democratic Republic of the Congo, UN Habitat & Global Land Tool Network (2013)
  • Antonia Engel and Benedikt Korf, Negotiation and Mediation Techniques for Natural Resource Management, Food and Agriculture Organization (FAO) of the United Nations (2005)
  • Julian Ouellet, “Monitoring of Agreements,” Beyond Intractability, Conflict Information Consortium, University of Colorado, Boulder (2003).

 

The Mediation Process: Practical Strategies for Resolving Conflict, Fourth Edition is a comprehensive book on mediation techniques written by Christopher Moore, PhD and published in 2014. Christopher Moore is an expert mediator, facilitator, and consultant who has worked in over 50 countries and has extensive experience developing dispute resolution systems. It is intended for conflict managers working in any area of dispute resolution – including family, community, employment, business, environmental, public policy multicultural, or international – and is therefore not specific to ownership or use of land disputes. The chapter “Implementing and Monitoring Understandings and Agreements” is however particularly relevant to the improving building block, which focuses on outcomes monitoring and sustainability. The fourth edition of The Mediation Process has been revised and expanded to account for new developments in the field, but the text remains an expert opinion. The quality of evidence is therefore very low, according to the GRADE method.

 

“Guide to Land Mediation: Based on the Experience in the Eastern Democratic Republic of the Congo” is a 2013 guide to land mediation drafted primarily by the UN-Habitat’s Land Mediation Team, which has been deployed in the DRC since 2009. It is a simplified tool intended to “contribute to the establishment of a land mediation programme and to guide stakeholders in the context of such a project, or those who do land mediation as a profession” (Remy, Sylla, & Paluku Mastaki, 2013, p. 48). It is based on field experience and “does not claim to have exhausted all the possibilities or all scenarios around land mediation but, in a general way, the publication deals with all the intricacies of the process that revolve around the parties’ willingness to resolve the conflict” (Remy, Sylla, & Mastaki, 2013, p. 48). As a comprehensive but location-specific practitioner’s guide based on fieldwork but not empirical study, it can best be characterized as an expert opinion. The quality of the evidence is very low, according to the GRADE method.

 

“Negotiation and Mediation Techniques for Natural Resource Management” is a 2005 guide developed within the framework of FAO’s Livelihood Support Programme (LSP), which is funded by the United Kingdom’s Department for International Development (DFID). Written by Antonia Engel, an expert in conflict management and intercultural communication, and Benedikt Korf, it builds on an earlier FAO training manual on resource conflict management that was field-tested in Ghana over a two-year period. It acknowledges “the immense diversity of social/cultural characteristics and interests among people managing the use of lands, forest, marine areas and their products” (p.iii) and discusses how negotiation can be used to promote positive social change and manage conflict in such cases. Though this might normally be considered an expert opinion according to the PICO/GRADE method, it can be leveled up due to the contributions of multiple experts and the fact that its findings were tested in the field. The quality of evidence can therefore be regarded as low.

 

“Monitoring of Agreements” is an article written by Julian Ouellet in 2003 for Beyond Intractability, an online knowledge base maintained by the University of Colorado Boulder’s Conflict Information Consortium. The mission of the Consortium is to “raise the profile of the intractable conflict problem and to greatly increase the number of people worldwide who have the motivation, knowledge, and resources needed to address it effectively.” At the time of writing, Julian Ouellet was a graduate student of political science at the University of Colorado Boulder and a research assistant at the Consortium. He is now the Vice Director of The Joint Staff. The article is best categorized as an expert opinion, meaning the quality of evidence is very low.

 

Quality of evidence and research gap

 

According to our research method, we grade the evidence comparing assuming that the signing of an agreement marks the end of the resolution process and seeing resolution as a continued process in which successes can be measured from the time when parties begin to engage with each other up to the implementation of the results of the agreement as very low.

 

Most of the literature available on monitoring and improving ownership and use of land  agreements relates to macro-level land disputes involving institutions, communities or other collectives. Research on outcomes monitoring in the context of land disputes that occur at the interpersonal and inter-familial levels (the focus of this guideline) is less common, and is primarily made up of expert opinions with a low or very low quality of evidence. Some of the selected research also related to the monitoring of negotiated or mediated agreements more broadly.

Recommendation

Assuming that the signing of an agreement marks the end of the resolution process (not monitoring ownership and use of land agreements)

Seeing resolution as a continued process in which successes can be measured from the time when parties begin to engage with each other up to the implementation of the results of the agreement (monitoring ownership and use of land agreements)

Assuming that the signing of an agreement marks the end of the resolution process is appropriate and more effective at achieving compliance when the agreement is self-executing. “A self-executing agreement is clearly a stronger and more effective means of ensuring that a settlement will be implemented according to the negotiated terms. Compliance is tangible and immediate, and chances of violation are minimized” (Moore, 2014, p. 479).

If an agreement is not self-executing, monitoring and follow-up are important to ensure implementation and the long-term well-being of the parties to the ownership or use of land dispute. “The signing of an agreement during the mediation process does not mean that the conflict is resolved, or that the mediation is accomplished. On the contrary, a very important step is to make the necessary arrangements for the implementation of the commitments, the monitoring of impacts, as well as the follow up of cases that have not led to a consensus” (Remy, Sylla, & Mastaki, 2013, p. 41-43).  


Monitoring the outcomes and implementation of an agreement helps to build trust, communication, and cooperation between parties to the ownership or use of land dispute. “Formal agreements are generated when cooperation is necessary and communication and trust are scarce. Low levels of trust and communication are also the conditions most likely to sabotage the agreement. Monitoring agreements is one way to build trust and communication while enacting the provisions of an agreement” (Ouellet, Beyond Intractability, 2003).


Seeing implementation of the agreement as part of the resolution process to be monitored is valuable because implementation often has substantive, procedural, psychological, and relational benefits for the parties involved. “Implementation refers to procedural steps that disputants or mediators take to operationalize a substantive agreement and terminate a dispute. These steps may help parties achieve substantive, procedural, and psychological/relational culture” (Moore, 2014, p. 477).


Reflecting on progress achieved in the resolution process (as part of agreement monitoring) in particular can help to restore the parties’ relationship prior to the ownership or use of land dispute. “Facilitating the revisiting of events to reflect on progress achieved: this can help to restore relationships, deepen trust and provide opportunities for planning joint activities for the future” (FAO, 2005).


Monitoring implementation is particularly important when it comes to negotiated settlements, which are often conducted on an ad hoc basis and are therefore typically more susceptible to violation than other forms of conflict resolution with strictly defined implementation procedures. “Negotiated or mediated agreements are not inherently more prone to noncompliance than other forms of dispute resolution processes. Research…indicates that mediated agreements have a high compliance rate (Cook, Rochl, and Shepard, 1980; Pearson, 1984; Bingham, 1984). However, because negotiated settlements are often conducted on an ad hoc basis, they are more susceptible to violation than conflict resolution approaches with strictly defined implementation procedures, such as judicial or legislative decisions. To mitigate this inherent weakness, mediators generally encourage disputants to carefully define the criteria, measures, and steps to be used to implement their decisions” (Moore, 2014, p. 480).

Assuming that the signing of an agreement marks the end of the resolution process (not monitoring ownership and use of land agreements)

Seeing resolution as a continued process in which successes can be measured from the time when parties begin to engage with each other up to the implementation of the results of the agreement (monitoring ownership and use of land agreements)

Land agreements – which often require performance or compliance over time – are unlikely to be self-executing, which makes their settlement and implementation more difficult. “Not all conflicts can be settled or executed in a self-executing manner. Certain agreements…may inherently require performance over a long period of time. In addition compliance is sometimes difficult to measure and verify in non-self-executing agreements. This type of agreement can often later result in discord due to differing interpretations of terms agreed on in the past. For this reason, in some disputes in which a self-executing agreement cannot be reached or will be difficult to verify, the parties may prefer not to settle at all or use other resolution procedures rather [than] face an unpredictable outcome or potential noncompliance. In such cases, disputants may fail to agree not because they are unable to reach a substantive settlement, but because they do not trust each other to perform according to the implementation plan or follow the agreed-on procedure over time” (Moore, 2014, p. 479).


“Insufficient consideration to implementation [implied by the choice not to monitor the outcomes of an ownership or use of land agreement] may result in settlements that are never implemented, create negative precedents, which can result in a party’s reluctance to negotiate or deal with the other party in the future, damaged interpersonal relationships, and losses in money, time, or resources” (Moore, 2014, p. 478).

“Even the best monitoring and implementation mechanisms will not work if one or several of the conflict stakeholders do not want it to. This may indicate that:

  • stakeholders are not really satisfied with the outcomes;

  • people who would benefit from continuing the conflict are trying to spoil the process and spread rumours or stir up discontent about the outcomes reached;

  • new conflicting issues have come up, which are related to the conflict that is supposed to have been settled” (FAO, 2005).”


Seeing implementation of the agreement as part of the resolution process may present new challenges for the parties and may require longer term involvement of neutral third parties. “Implementation [of the agreement] is discussed here as a specific potential stage of negotiation and mediation because it may pose additional problems for negotiators that must be overcome if an agreement is to be executed and endure over time. In addition, it may involve further and, in some cases, ongoing mediator involvement and interventions (Moore, 2014, p. 477).” 

Taken together, the available research suggests that seeing resolution as a continued process in which successes can be measured from the time when parties begin to engage up to the implementation of the agreement is most effective for improving ownership and use of land agreements that are not self-executing. 

 

While assuming that the signing of an agreement marks the end of the resolution process is appropriate and effective for self-executing agreements, land agreements typically require performance or compliance over time and therefore do not fall into this category. This means that a neutral third party or monitor is likely needed to create implementation and monitoring mechanisms that help the parties trust each other, comply with what they have agreed, and avoid financial and relational costs.

 

In addition to the substantive, procedural, psychological and relational benefits associated with seeing resolution as a continued process that includes implementation, reflecting on progress achieved as part of that process can create opportunities for joint planning between the parties in the future. Ongoing communication and coordination between the parties is particularly important for the successful implementation of negotiated settlements (which land agreements typically are), which are more susceptible to violation than conflict resolution approaches with strictly defined procedures (i.e. judicial or legislative decisions). 

 

Monitoring and implementation mechanisms will not work if the parties involved are not truly satisfied with what they have agreed, and they may even present new challenges related to the conflict that require long-term engagement of a third party monitor. However, seeing resolution as a continued process in which successes can be measured from the time when parties begin to engage up to the implementation of the agreement will generally increase the well-being of the individuals involved, whereas assuming that the signing of an agreement marks the end of the resolution process may result in damaged relationships, and/or losses in money, time, trust or resources down the road.

 

Therefore, seeing resolution as a continued process in which successes can be measured from the time when parties begin to engage up to the implementation of the agreement is preferred.

Taking into account the balance of outcomes, the fact that most land agreements are unlikely to be self-executing, the practical, procedural, psychological and relational for land owners and users looking to monitor and sustain their agreements, and the quality and consistency of the evidence, we make the following recommendation: For parties to a ownership or use of land dispute looking to improve upon a resolution process and ensure its sustainability, monitoring the outcomes of their agreement is more conducive to well-being than not doing so.

When further clarification on the implementation of a recommendation is needed, we include technical remarks. These provide supplementary information relating to, for example: timing; dosage; setting; availability of justice providers; legal constraints; intensity of conflict; levels of cooperation, self-sufficiency of the parties; political, cultural and ethnic factors; and necessary expertise. They may also include short statements on parties’ values and preferences or minority opinions, where relevant.

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