Recommendations
on land
problems

6.2 MONITORING OUTCOMES OF A RESOLUTION PROCESS AND ENSURING SUSTAINABILITY

Guideline for land problems / RESOLVING: 6.2 Monitoring outcomes of a resolution process and ensuring sustainability

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 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).

Selected interventions for comparison (defined as a PICO question)

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?

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 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

Assessment and grading of evidence

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).

Quality of evidence and research gap

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.

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.

Comparing the two interventions

Desirable outcomes of the interventions

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).

Undesirable outcomes of the intervention

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).	“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).”
“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).	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).”

Assuming that the signing of an agreement marks the end of the resolution process (not 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).

“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).”

“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).

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).”

Balance of Outcomes

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.

Recommendation

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.

Technical remarks

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.