Recommendations
on land
problems

5.2 Principled bargaining or Negotiation

Guideline for land problems / RESOLVING: 5.2 Principled bargaining or negotiation

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 decision-making (“deciding”) in ownership and use of land disputes:

Positional bargaining/negotiation
Principled bargaining/negotiation

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

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

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

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

Positional bargaining/negotiation

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

Principled bargaining/negotiation

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

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

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

“Independent of willpower and [possible to apply] objectively;
Perceived as legitimate
Lead to outcomes that are continuous in character, not binary;
Weigh similar elements of the situation on both sides;
Belong to parties, reflecting their ideas about legitimacy and appropriate use of objective criteria;
Allow decision-makers to tailor the outcome to the specific situation;
Practical [and] in particular, requiring low-cost fact-finding;
Provide social information about actual application by others” (Barendrecht & Verdonschot, 2008, p. 1).

Selected interventions for comparison (defined as a PICO question)

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

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: principled positional bargaining land disputes; principled position negotiation land disputes; land sharing agreements; land distribution agreements; objective criteria land disputes.

Assessment and grading of evidence

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

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

Quality of evidence and research gap

“Land Use Conflicts: The Place of ADR in Land Disputes in Africa” is a conference paper by Dennis Mwaniki, an environmental planning and management expert at the Global Urban Observatory, UN-Habitat. It was published by the Commonwealth Association of Surveying and Economy (CASLE) in 2017 and prepared as part of a 2016 conference CASLE jointly organized with The Institution of Surveyors of Tanzania (IST) and The Tanzanian Institution of Valuers & Estate Surveyors (TIVEA). A core area of focus for CASLE is access to land and legal security of tenure. Mwaniki’s paper looks at negotiation methods commonly used as part of alternative disputes resolution (ADR) methods in Africa, including principles and positional negotiation. It is an expert opinion and is therefore a very low quality of evidence according to the PICO/GRADE method.
“Objective Criteria: Facilitating Dispute Resolution by Information about Going Rates of Justice” is an academic article written by experts of dispute resolution system design and legal innovation, Maurits Barendrecht and Jin Ho Verdonschot of Tilburg University in the Netherlands. It was published in 2008 as part of two different working papers series, and focuses on norms that give guidance on how to “split the pie” in a fair way. The article’s findings are based on a review of literature on negotiation, compliance, descriptive social norms, conflict resolution, fairness, and distributive justice. It is an expert opinion - not an empirical study - and is therefore a very low quality of evidence according to the PICO/GRADE method. However, because it cites evidence from empirical studies on bargaining/negotiation throughout, it can be leveled up to a low quality of evidence.
“Negotiation and Mediation Techniques for Natural Resource Management” is a 2005 guide developed within the framework of FAO’s Livelihood Support Programme (LSP), which is funded by the United Kingdom’s Department for International Development (DFID). Written by Antonia Engel, an expert in conflict management and intercultural communication, and Benedikt Korf, it builds on an earlier FAO training manual on resource conflict management that was field-tested in Ghana over a two-year period. It acknowledges “the immense diversity of social/cultural characteristics and interests among people managing the use of lands, forest, marine areas and their products” (p.iii) and discusses how negotiation can be used to promote positive social change and manage conflict in such cases. Though this might normally be considered an expert opinion according to the PICO/GRADE method, it can be leveled up due to the contributions of multiple experts and the fact that its findings were tested in the field. The quality of evidence can therefore be regarded as low.
“Conflict in the Community: A Challenge for Land Grant Universities” is an academic article written by Thomas Ilvento - professor and expert in resource economics - in the Southern Rural Sociology journal in 1996. The article looks at the application of alternative dispute resolution techniques and environmental mediation in particular to conflict in communities. Although the article is well-researched, its age and the fact that it is an expert opinion primarily based on literature research makes it a very low quality source of evidence according to the PICO/GRADE method.

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

Comparing the two interventions

Desirable outcomes of the interventions

Positional bargaining/negotiation	Principled bargaining/negotiation
	Principled bargaining/negotiation helps to promote gains for both parties to a conflict or dispute. “Consensual negotiations are based on stakeholders identifying their own needs and interests, and thereby finding ways to promote mutual gains” (Engel & Korf, 2005, p. 48).
	By reconciling interests rather than positions, principled bargaining/negotiation makes it easier for parties to find common ground. “Reconciling interests rather than positions works for two reasons. First, every interest can usually be satisfied by one of several possible positions. All too often people simply adopt the most obvious position. Second, behind opposed positions lie many more shared and compatible interests than the conflict ones (Fisher, Ury and Patton, 1991: 43). This makes it easier to find common ground at the level of interests” (Engel & Korf, 2005, p. 49).
	By helping the parties to explore options for mutual gain, principled bargaining/negotiation makes it possible to expand a seemingly “fixed pie.” “In many conflicts. The parties tend to view the situation as a ‘fixed pie’ with little or no options. Thus the conflict is a win/lose or zero sum affair rather than a search for alternatives or common group. One strategy [of principled bargaining/negotiation] is to ‘expand the pie’ before identifying potential options for resolving the conflict…by look[ing] for mutual gain and additional resources that might help address stated interests” (Ilvento, 1996, p. 17).
	By insisting on the use of objective criteria, principled bargaining/negotiation increases trust between parties and helps them to overcome impasse. “When parties are locked in an impasse, it often is useful for them to focus on objective standards that can be agreed upon….For there to be trust, mutually agreed upon criteria must be set. These standards may be based on research, past experience, accepted practice, and government or industry standards, as well as on principles of fairness, justice, and integrity” (Ilvento, 1996, p. 17). This works because in it is generally ‘easier to follow an independent standard than to give into the other side’s positional demand (Fisher et al., 1991)” (Barendrecht & Verdonschot, 2008, p. 5).
	Objective criteria helps parties reach more fair agreements. “Bargaining experiments show that salience of fairness criteria and expectation about them being followed helps to reach more fair agreements. In ultimatum game experiments, propoers presented more fair offers if they knew that the responder had knowledge about criteria specifying what a reasonable outcome would look like (Bicchieri and Chavez 2008)” (Barendrecht & Verdonschot, 2008, p. 4).
	Social psychology research suggests that the use of objective criteria may also increase parties’ well-being, perceived fairness, and level of satisfaction with the resolution reached. “Being treated similarly to others is an often-confirmed component of people’s well being (Korobkin 2000). It has a strong effect on perceived fairness and level of satisfaction (Klein & Moore 2005); both of which positively affect the probability that negotiators follow through on an agreement (Barry & Oliver 1996)” (Barendrecht & Verdonschot, 2008, p. 5).
	Because they allow disputants to work out their own resolutions, principled negotiations “produce potentially more satisfying and enforceable settlements” (Engel & Korf, 2005, p. 48). “An agreement reached by disputants themselves is more likely to be adhered to than are solutions that are outside their control (Engel & Korf, 2005, p. 52).
	“Consensual negotiations are particularly important when an aim is to strengthen long-term working relationships” (Engel & Korf, 2005, p. 48). This is often the case in ownership and use of land disputes, which tend to involve parties from the same community.
	Even when the goal of principled bargaining/negotiation “to achieve win-win solutions from which all sides gain” is not reached, “there is still a whole range of possible positive outcomes of negotiations” (Engel & Korf, 2005, p. 49).
	Principled bargaining/negotiation is best-suited for addressing the issues that tend to underlie ownership and use of land disputes. “ACM [alternative conflict management and specifically principled bargaining/negotiation] works best when addressing issues such as conflict demands or unsustainable resource use. Interests are generally more negotiable than are basic needs such as identity, security, recognition or equal participation within society” (Engel & Korf, 2005, p. 55).

Undesirable outcomes of the intervention

Positional bargaining/negotiation	Principled bargaining/negotiation
“Positional bargaining can be an impediment to consensus building. In a conflict situation, parties tend to lock themselves in positions, which they have to defend and argue for. Conflict stakeholders often exaggerate their differences by adopting positions that do not necessarily correspond to their interests. They may think that taking a strong position will help them to give as little as possible to the other party. Once the parties have identified themselves with their positions, the arguments and offers of the other side will no longer be evaluated rationally. To “give n” may appear equal to losing face. Negotiations become a contest of wills in which each side tries to win. During such positional bargaining processes, the parties view themselves as adversaries; the goal is victory” (Engel & Korf, 2005, p. 49).	Principled bargaining/negotiation requires a certain level of goodwill which may not always exist between parties to ownership and use of land disputes. “This approach seeks high levels of collaboration, and presumes that the parties have the necessary good will to communicate throughout the process” (Engel & Korf, 2005, p. 48).
Positional bargaining/negotiation tends to increase the likelihood of stalemate. This is because unlike interests, “positions often appear rigid and inflexible. For example, in a landfill dispute one position could be, ‘We do not want the landfill located in our county.’ However, further probing could reveal that the underlying interests might be concerns about health, traffic, or property values…The interests of the parties may or may not be compatible and may or may not be at odds. In contrast, positions often lead to stalemates and increased conflict” (Ivento, 1996, p. 16).	Using objective criteria as part of a principled approach to bargaining/negotiation may come with practical difficulties. There is a risk that, for example, “the parties will only bring forward objective criteria that support their own positions (Korobkin 200; White 1984)…Such references to rather extreme criteria are indeed unlikely to bring more neutrality in the negotiations, and they are more like arguments that support positions” (Barendrecht & Verdonschot, 2008, p. 6). Furthermore, suitable objective criteria are not always readily available: “legal systems do not abundantly deliver suitable objective criteria,” perhaps due to the fact that “drafting such rules is costly…[and] it is not always worthwhile to produce [them]” (Barendrecht & Verdonschot, 2008, p. 16).
Positional bargaining can be costly in terms of time, money and relationships. Solving distributive issues through positional bargaining/negotiation – rather than a process that focuses on objective criteria – “comes down to a contest of willpower, a context that endangers relationships and can be time and money consuming (Fisher et al. 1991)” (Barendrecht & Verdonschot, 2008, p. 5).	The application of principled bargaining/negotiation may not be successful or appropriate when there are major power differences between parties. This may be the case in “natural resource conflicts, especially when they involve outside stakeholders.” Large power differences are problematic in principled bargaining/negotiation because “the more powerful actors can take unilateral actions to force weaker parties to accept a decision,” and because “if any of the parties believe that they can obtain a better deal through any alternative to the settlement that has been negotiated, they are likely to try to do so” (Engel & Kord, 2005, p. 54).

Balance of Outcomes

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

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

Therefore, principled bargaining/negotiation is preferred.

Recommendation

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