Recommendations
on land
problems

5.1 CONSTRUCTIVE COMMUNICATION TECHNIQUES

Guideline for land problems / RESOLVING: 5.1 Constructive communication techniques

Interventions and evidence explained

Most plausible interventions explained

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.

Selected interventions for comparison (defined as a PICO question)

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?

Search strategy

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

Assessment and grading of evidence

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)

Quality of evidence and research gap

“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.

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.

Comparing the two interventions

Desirable outcomes of the interventions

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).

Undesirable outcomes of the intervention

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).	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).
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).

Balance of Outcomes

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.

Recommendation

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.