Close this search box.
Close this search box.

on land

2.1 Joint fact-finding facilitated by a neutral third party

Guideline for employment problems / MAPPING FACTS: 2.1 Joint fact-finding facilitated by a neutral third party

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 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) using the following columns: Year, General event, Event as experienced by one conflict party, Event as experienced by other conflict party, Remarks. 

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). 

Selected interventions for comparison (defined as a PICO question)

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?

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; 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

Assessment and grading of evidence

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

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.

Comparing the two interventions

Desirable outcomes of the interventions

Land title registration
Fit-for-purpose 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).
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).
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).
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).
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).
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).
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).
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).
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).
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).

Undesirable outcomes of the intervention

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).
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.
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).
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).
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).
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).
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).

Balance of Outcomes

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.

Table of Contents

2. Recommendations on MAPPING FACTS
2.1 Joint fact-finding facilitated by a neutral third party