Recommendations
on land
problems

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:

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)

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 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.
“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.

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

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).	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).
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 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).

Undesirable outcomes of the intervention

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).	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).
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).	“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).
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).	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).

Balance of Outcomes

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.

Recommendation

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.