Recommendations
on land
problems

3.1 Reality testing by a neutral third party

Guideline for land problems/ CONVENING: 3.1 Reality testing 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 coming together to talk (“meeting”) in ownership and use of land disputes:

BATNA assessments by the parties involved
Reality testing by a neutral third party

Deciding whether and/or how to come together and talk about an ongoing dispute is never easy. In order to understand why one or more parties of an ownership or use of land dispute might refuse to meet and talk (whether in the form of a negotiation, mediation, or other dispute resolution process), BATNAs (Best Alternative to Negotiated Agreement) are a useful concept.

“Stakeholders enter into negotiation when it is seen as the best alternative to what they could expect to obtain’“away from the bargaining table’” (Ramírez, 2002, p. 19). Common alternatives to meeting and talking include doing nothing, ignoring the dispute, engaging in self-help, or taking unilateral action (Mnookin 2003). “If the decision is taken not to negotiate, then the BATNA should already have been formulated” (Hargie, 2017, p. 407).

As De Vries, Leenes, and Zeleznikow (2005) explain:

BATNAs not only serve a purpose in evaluating offers in the dispute, they can also play a role in determining whether or not to accept a certain dispute resolution method. In a recent article, Mnookin (2003) wrote that having an accurate BATNA is part of the armoury one should use to evaluate whether or not to agree to enter a negotiation. We believe this to hold for many dispute resolution methods, including arbitration and mediation” (p. 61).

De Vries, Leenes, and Zeleznikow (2005) identify four relevant factors that play a role in assessing one’s BATNA:

Outcome: “The outcomes is the decision in court or arbitration, the agreement in a negotiation or mediation or the status quo situation if the alternative is walking away from the negotiation table of dispute resolution process.”
Risk: “The risk can be modelled as the likelihood of obtaining a specific outcome.”
Time: “The time is the duration of the whole (alternative) dispute resolution process.”
Costs: “Costs and benefits are important factors, as most disputants will have limited resources. Costs may include the costs of the neutral, the costs of help by advisers such as lawyers, the costs of experts, the opportunity costs of the time spent, and the costs of uncertainty” (p. 64).

When parties to an ownership or use of land dispute have similar perceptions of what BATNAs exist (what will happen if they are not able to come together), their conflict is ripe for resolution. However, when one or more parties believe that he or she has a better alternative to meeting and talking, he or she will be reluctant to come to the table.

Therefore, “in preparing for a negotiation [or other forum in which to meet and talk], a party should identify its own interests and those of the other parties; think about each side’s BATNA; try to imagine options that might better serve the negotiators’ interests than their BATNAs; and ensure that commitments made in any negotiated deal have a reasonable prospect of actually being implemented. These same considerations are equally valid in informing an individual’s decision whether one should enter into a negotiation” (Mnookin, 2003, p. 1083). This preparation can be done by the parties themselves, or it can be facilitated by a neutral third party through reality testing.

BATNA assessments by the parties involved

“While negotiation involves joint decision making, the decision of whether to enter into negotiation or instead pursue some other alternative can be framed in terms of decision analysis, in which a decision maker independently assesses the expected costs and benefits of negotiation and its alternatives” (Mnookin, 2003, p. 1082).

“Most parties, to some extent, test the values of their BATNAs when assessing whether or not to opt for a certain dispute resolution method. Although BATNAs are an important aspect of the dispute resolution, there is reason to believe that parties engaged in actual disputes are not very good at determining their BATNAs” (De Vries, Leenes & Zeleznikow, 2005, p. 61). This will be explored further in the recommendation that follows.

Reality testing by a neutral third party

“In reality testing, the third party helps clarify and ground each disputing party’s alternatives to agreement. S/he may do this by asking hard questions about the asserted BATNA” (Spangler 2003). These questions may include:

What do you see as the strengths of your case?
What do you see as the weaknesses of your case?
What do you see as the strengths of the other’s case?
What do you see as the weaknesses of the other’s case?
What is your best-case scenario if you don’t resolve this with negotiation?
What is your worst-case scenario if you don’t resolve this with negotiation?
What is the most likely scenario if you don’t resolve this with negotiation?
Is that better than the most likely negotiated settlement?

Alternatively, “the third party may simply insert new information into the discussion…illustrating that one side’s assessment of its BATNA is likely incorrect” (Spangler 2003). For example, the third party may “educate stakeholders about other sources of power that might change other parties’ BATNA” or “suggest that parties consider the long-term benefits and long-term relationships at stake” (Susskind, 2003, p. 17).

Selected interventions for comparison (defined as a PICO question)

For parties to an ownership or use of land dispute trying to decide whether and/or how to come together and talk, are BATNA assessments by the parties involved or reality testing 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: bringing parties together land disputes; BATNA reality testing costing; BATNA reality testing land; BATNA coming to the table; BATNA third party; reality testing land disputes

Assessment and grading of evidence

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

Alyson Carrel and Noam Ebner, Mind the Gap: Bringing Technology to the Mediation Table, Journal of Dispute Resolution 2 (2019)
Owen Hargie, “Working Things Out Together: The Skill of Negotiating” in Skilled Interpersonal Communication: Research, Theory and Practice, Sixth Edition (2017)
Berend de Vries, Ronald Leenes and John Zeleznikow, Fundamentals of Providing Negotiation Advice Online: The Need for Developing BATNAs, Second International ODR Workshop, Wolf Legal Publishers (WLP) (2005)
Russell Korobkin, Bargaining Power as Threat of Impasse, Law & Economics Research Paper Series, No. 04-6 (2004)

Quality of evidence and research gap

“Mind the Gap: Bringing Technology to the Mediation Table” is an academic article published in the Journal of Dispute Resolution in 2019. It was written by Alyson Carrel, a Clinical Associate Professor and Assistant Dean of Law and Technology Initiatives at Northwestern School of Law, and Noam Ebner, a Professor of Negotiation and Conflict Resolution at Creighton University. The article is an expert opinion focused on the application of technology to support in-person mediation processes. Specifically, it looks at how technologiy can facilitate substantive functions of mediation, including reality testing for BATNAs. Because it is a rigorously cited and recently published academic article, what would normally be classified as a very low quality of evidence according to the PICO/GRADE method can be upgraded to low.
“Working Things Out Together: The Skill of Negotiating” is a chapter in the sixth edition of Skilled Interpersonal Communication: Research, Theory and Practice, a book written by Owen Hargie. Hargie is a Professor of Communication at Ulster University, Northern Ireland, and one of the foremost international experts in the field. The book is a revised and expanded version of previous editions, and provides a comprehensive and up-to-date review of the current research, theory and practice in the field of interpersonal communication. The chapter on negotiation discusses BATNAs as part of a larger decision tree that informs whether or not disputing parties should come together and talk. As a comprehensive but not systematic review of research and best practices, this source can best be considered an expert opinion upgraded to a low quality of evidence.
“Fundamentals of Providing Negotiation Advice Online: The Need for Developing BATNAs is an academic article written by Berend de Vries and Ronald Leenes - professors at Tilburg University - and John Zeleznikow - professor at Victoria University - in 2005. The article draws from empirical studies in conflict resolution and cognitive psychology to analyze the concept of a BATNA and assess whether information technology could be used to provide BATNA assessments for disputing parties. It is an expert opinion, but can be upgraded to a low quality of evidence due to its basis in small empirical studies.
“Bargaining Power as Threat of Impasse” is an academic article written by Russell Korobkin, Professor of Law at UCLA, and published in 2004. It is a brief analysis of the sources of bargaining power in negotiations, and can be considered an expert opinion. It is therefore a very low quality of evidence according to the PICO/GRADe method.

According to our research method, we grade the evidence comparing BATNA assessments by the parties involved and reality testing by a neutral third party as low. Literature explicitly connecting these interventions to ownership and use of land disputes – as opposed to disputes more broadly – was quite limited. There is a clear gap in the available research on how to bring parties to an ownership and use of land agreement to the table/and or determine the best forum in which to meet.

Comparing the two interventions

Desirable outcomes of the interventions

BATNA assessments by the parties involved	Reality testing by a neutral third party
Parties to an ownership or use of land dispute who are persuasive negotiators may not need to have an accurate or reality-tested BATNA in order to influence the other party to come to the table (or come to an agreement). This implies that in some cases, BATNA assessments by the parties’ themselves will be sufficient to negotiate in a way that ultimately serves their interests. “Strictly speaking, it is not the actual, objective quality of the negotiator’s BATNA that determines his degree of bargaining power, but what the counterpart believes that the negotiator believes about the quality of his BATNA…Where power is concerned, the beauty of a BATNA is in the eye of the beholder, and eccentricity is not penalized as long as it is perceived to be genuine…An objectively strong BATNA is helpful, of course, because a BATNA that appears strong renders the negotiator’s claim that he believes his BATNA is strong more credible…But either a phantom BATNA (i.e., a nonexistent alternative) or a real BATNA with phantom value (i.e., an existent but undesirable alternative) can be a source of power in the hands of a persuasive negotiator” (Korobkin, 2004, p. 3).	Reality testing by a neutral third party can help parties to an ownership or use of land dispute determine the best process by which to meet and/or communicate with one another. “The support of professionals to help disputants make the right choices with respect to the dispute resolution process may [for example,] contribute to the effectiveness and efficiency of ODR, as it helps people to determine whether ODR is a useful process for resolving the dispute” (De Vries, Leenes & Zeleznikow, 2005, p. 60).
	Reality testing by a neutral third party can help the disputing parties “to limit the chances of optimistic overconfidence causing poor decision-making” (De Vries, Leenes & Zeleznikow, 2005, p. 61).
	Reality testing by a neutral third party can also help the parties to limit the risk of “reactive devaluation” and distrust of proposals by the opposing party (to come together and talk, for example). “From a cognitive psychology perspective neutrality is valuable. People have the tendency to devalue information given by parties or organizations they perceive as adversaries. In the literature this psychological process is called ‘reactive devaluation’ and is supported by several empirical studies (e.g., Neale & Bazerman, p. 75; Ross 1995, p. 29-38). One of the explanations for this phenomenon is that parties lack information about the interests and intentions of the other party. This lack of insight in the interests of others induces a kind of distrust in their opinions (we are talking of parties that are already in a dispute and hence a lack of trust in the opponent’s statements is inevitable) and the proposals the opponent presents…The effect of the reactive devaluation process in that advice given by the opponent is not judged as ‘neutral’ advice. Therefore it is useful that someone or something that is perceived as neutral to both parties provides negotiation advice about BATNAs” (De Vries, Leenes & Zeleznikow, 2005, p. 62).
	A number of studies indicate that technology is an example of a neutral third (or fourth) party that can help disputing parties to reality test and “determine a BATNA, which helps [them] determine what will happen if the dispute is not resolved” (Lodder & Zeleznikow, 2005 p. 326; Carrel & Ebner, 2019, p. 28). This has the potential to help bring disputants to the table without compromising the impartiality of the third party facilitating the resolution process (Carrel & Ebner, 2019, p. 32). “Recent research has revolved around developing systems that allow disputants to communicate online. Our approach has been to merge techniques developed from argumentation, artificial intelligence, and game theory to provide decision support in an online environment. To construct our environment, we have set forth three basic stages for the effective resolution of online disputes: 1) determining a BATNA, which helps the disputing parties determine what will happen if the dispute is not resolved (This task is context-dependent.); 2) allowing parties to communicate among themselves using dialogue techniques (This task is generic.); 3) using game theory techniques that employ compensation/trade-off strategies to attempt to resolve remaining issues in dispute (This task is generic.)” (Lodder & Zeleznikow, 2005, p. 336).

Undesirable outcomes of the intervention

BATNA assessments by the parties involved	Reality testing by a neutral third party
An accurate and unbiased reality test of disputing parties’ BATNAs is difficult to achieve in the absence of a neutral third party. “There are not that many possible sources for a reality check on BATNAs. To address it from a slightly different angle, who are those capable of presenting objective BATNAs. Obviously, the opponent appears not to be a suitable candidate as she has a vested interest in her own position or offer. Alternatively, actors sympathizing with the person seeking advice may also not be too suited as they may fall into the same, or similar, traps as the information seeker. This leaves only a neutral party as a candidate” (De Vries, Leenes & Zeleznikow, 2005, p. 61).	Without a neutral mechanism to facilitate reality testing of disputing parties’ BATNAs (i.e. an online dispute resolution tool), mediators and or/other third parties attempting to do so may risk compromising their neutrality in the process. “Mediators who consider themselves facilitative, or practice in jurisdictions forbidding mediator evaluations, may find that referring parties to such tools takes them off the expectational hook of evaluation, or that using it themselves, in the room, together with one or even both parties, provides parties with a helpful reality test or BATNA-assessment without clashing with their facilitative approach and perceived impartiality” (Carrel & Ebner, 2019, p. 32).
BATNA assessments by the parties involved and decisions about whether or not to come to the table are more likely to be distorted by “optimistic overconfidence” effect. “A large body of research shows that people have a tendency to develop an overly optimistic view on their chances in disputes (e.g. Neale and Bazerman 1991, p 53-55; Kahneman & Tversky 1995, p. 45-50; Baron 200, p. 367; Lewicki et al 2003, p. 157; Korobkin 2005). This process if referred to as ‘optimistic overconfidence,’ because disputants have unrealistic optimistic expectations about the validity of their judgement (Llewicki et al 2003, p. 157). Neale and Bazerman (1983), for instance, showed this effect. In their (laboratory) experiment, both parties were asked to submit a final offer to an arbitrator. The participants were told that the arbitrator had to choose one of the offers. The experiment showed that the disputants, on average, believed to have a 65.4 percent chance of getting their final offer accepted, while on average their real chance of success is 50 percent. This experiment suggests that people systematically overestimate their probability of success in dispute resolution…These valuations and predictions influence how disputants calculate their BATNAs. The consequence of overly optimistic BATNAs is that a generous offer in a negotiation, or an offer to start a procedure that is in the interest of a party, is prone to be rejected” (De Vries, Leenes & Zeleznikow, 2005, p. 61).	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).
This “optimistic overconfidence” may influence parties to take their ownership or use of land dispute to court rather than meeting with the party as part of a more cooperative resolution process, even when it is not in their interest to do so. “An obvious alternative to accepting an offer to opt for an alternative dispute resolution method, such as arbitration or mediation, is to resort to a court proceedings. Many people think court proceedings have an all or nothing outcome. Hence, an overly optimistic disputant may conclude that he or she is better off in court, than opting for a more cooperative procedure, such as mediation or negotiation. The cooperative procedure in this case is perceived as less attractive, because in such a procedure it is normal that both parties make concessions (see also Barendrecht & De Vries 2004, p. 23-34). [An] overoptimistic disputant will be reluctant to make concessions if she thinks she will surely be able to obtain everything she desires in court” (De Vries, Leenes & Zeleznikow, 2005, p. 61).
BATNA assessments by the parties involved and decisions about whether or not to come to the table are also more likely to be distorted by the “reactive devaluation” effect. “Providing accurate information is important, because disputing parties have a tendency to develop an overoptimistic view on their position in the dispute. The ‘reactive devaluation’ effect suggests that advice given by one’s opponent is less likely to be taken into account than the same information provided by a neutral” (De Vries, Leenes & Zeleznikow, 2005, p. 59).
The potential of these cognitive biases to distort parties’ decisions about whether or not to come to the table is made worse by the fact that opposing parties will often try to negatively influence one another’s BATNAs, or provide false information about their own. “The opposing side may try to moderate your perceptions of your BATNA in a negative fashion. In other words, they may attempt to persuade you that your BATNA is actually worse than you had thought. It is therefore important to work out your BATNA carefully and objectively, and not to deviate from your belief in this, whatever the counterarguments. You should [also] attempt to ascertain what the other side’s BATNA is, and be aware that they may not tell the truth about this” (Hargie, 2017, p. 408).

Balance of Outcomes

Taken together, the available research indicates that while particularly skilled negotiators may benefit from making their own BATNA assessments, reality testing by a neutral third party generally helps to improve the quality of BATNA assessments by increasing their accuracy. This finding – and the desirable and undesirable outcomes of each intervention – are elaborated below.

Parties that make a decision about whether or not to meet with the opposing party on the basis of their own BATNA assessment risk making a decision that does not serve their interests. Optimistic overconfidence may, for example, influence disputing parties to take their ownership or use of land dispute to court rather than first trying to talk things through as part of a more cooperative resolution process. Reactive devaluation may also cause parties’ to view one another’s proposals to meet and talk with suspicion, even when it would be mutually beneficial.

Reality testing by a neutral third party can help to ameliorate these risks by helping parties make an unbiased determination about whether and/or how to meet and communicate with one other. Technological tools designed to reality test parties’ BATNAs may be useful in this respect because they allow mediators and other third parties to maintain a facilitative rather than evaluative role in the resolution process.

There is a risk that third parties that attempt to assess disputing parties’ BATNAs without the aid of technology will be viewed as less neutral. However, this risk is small relative to the risk of one or more parties making a decision about whether and.or how to meet that is not in their interests based on a biased BATNA assessment.

Therefore, for parties to an ownership or use of land dispute trying to decide whether and/or how to come together and talk, reality testing by a neutral third party is preferred.

Recommendation

Taking into account the balance of outcomes, the reduced risk of biased and counter-productive decision-making for 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, reality testing by a neutral third party is more conducive to well-being than BATNA assessments by the parties involved.