March 2002
by Ricardo Ramírez, PhD
for the Land Tenure Service,
FAO Rural Development Division
Part 3 of 4
This PROCESS dimension includes several component concepts: the range of mediation frameworks, the choices of approaches in conflict management, the notion of BATNA (best alternative to negotiated action), and alternative dispute resolution. Several concrete examples are provided as guides for practice. These components interact in a systemic and ongoing manner, with the underlying influence of power and power differences among stakeholders.
This analysis conflict management and resolution approaches builds on a review of literature from several fields that can belong to two groups. The first major group addresses the institutional, regulatory and social dimensions of rural development (organizational conflict, social work, and international diplomacy). The second group deals with the nature of the resource that is being disputed (natural resource management, conservation and protected area management, forestry). Some systems thinkers refer to the first group as the soft side, and the second as the hard side (Röling and Jiggins, 1998). The two are complementary and must be addressed in tandem (Engel, et al., 2000; Guijt and Engel, 1998).
There is not doubt that the type of dispute, the nature of the stakeholders involved, and the mediation approaches are all interrelated variables. In this conceptual map, the nature of a dispute and the nature of the parties involved are addressed under SUBSTANCE (Part 2), whereas the nature a third party that can act as a mediator has not been addressed yet, nor the mediator's strategies.
"Mediation is assistance to two or more interacting parties (Kressel and Pruitt, 1989) by third parties who (usually) have no authority to impose an outcome." (Wall, et al., 2001:370). Wall et al. (2001) refer to mediation as one of the oldest forms of conflict resolution Worldwide. The following definition is of relevance:
The origin of mediation is the interaction between two or more parties who may be disputants, negotiators, or interacting parties whose relationship could be improved by the mediator's intervention. Under various circumstances (determinants of mediation), the parties/disputants decide to seek the assistance of a third party, and this party decides whether to mediate. As the mediation gets underway, the third party selects from a number of available approaches and is influenced by various factors (labeled determinants of approaches), such as environment, mediator's training, disputants' characteristics, and nature of their conflict. Once applied, these approaches yield outcomes for the disputants (e.g. satisfaction, a perception of fair treatment), mediator, and third parties (other than the mediator). As the figure indicates [Figure 5], the nature and extent of this influence are mitigated by factor such as the intensity of the dispute, the relative power of the disputants, and the type of issue. (Wall, et al., 2001:371)
Figure 5. The Mediation Framework (Wall, et al., 2001:372)
Once mediation is underway, Wall et al. (op.cit.) suggest three types of techniques be employed: those that relate to the disputant, those that address the relationship between the disputants, and those that deal with the link between disputants and the mediator (Figure 6).
Figure 6: Mediator's Techniques (Wall, et al., 2001: 376)
The two models presented above challenge us to review the stages of a conflict as a guide to the range of mediation approaches and techniques that may be appropriate. Figure 7 below provide another complementary model that includes the nature of the mediator as part of the context. Both models approach conflict from the perspective of mediators and expand on the determinant variables accordingly.
In the contingency model, the nature of the dispute is understood through three general aspects: 1) the intensity of the dispute, 2) the duration of the dispute at the time of intervention, and 3) the issues at the heart of the dispute. For the third item, they list two variables: the substantive nature of the issues at stake, and their number and complexity. On the issue of complexity they refer to two schools of thought. First, there are the ones who argue that the more complex the issue, the less likely it is to be solved by mediation.
Figure 7: A contingency model of mediation (Bercovitch and Langley, 1993:673)
The opposite view suggests that the greater the complexity, the more opportunities for finding trade-offs, sequencing, and packaging of issues in new ways, thus enhancing the chances of successful mediation (Bercovitch and Langley, 1993). The compounded layers of complexity in land tenure conflicts suggests there are ample opportunities to 'un-bundle' conflicts and seek arrangements that may accommodate the interests of the different parties.
Box 13 is a good example of how international relations analysts dissect the components of conflict to classify the range of approaches used in international conflict management. In the context of this paper, this example constitutes a view from the PROCESS dimension onto the SUBSTANCE dimension with the purpose of classifying conflict management approaches.
How a conflict is perceived guides how a third party intervenes, in other words, "… the process of conflict is intrinsically subjective, and the methods for resolving it must include changes in the subjective orientation of the parties. Thus the goal of this approach ["problem solving workshops"] to conflict resolution is to achieve through synthesis a common perspective on the conflict (Hill, 1982:114).
There are other models and typologies in the literature. Appendix 1 includes the Conflict Resolution Model (Hill, 1982) and Appendix 2 the Comparative Conflict Resolution Typology (Rothman, 1989) for general reference.
"While a conflict may be objective at a particular point in time, changes in the parties' objectives, preferences and evaluations, and calculations that occur over a period of time render it a changeable and hence an intensely subjective phenomenon. Conflict may be described as subjective, then, in the sense that changes occur within the parties themselves (and in their orientations to the dispute forming part of their environment), rather than in the "objective" situation external to them from which the originally mutually incompatible goals arose." (Mitchell, 1973: 128 as quoted in Hill, 1982: 114) |
Intervening in a conflict requires a map of the choices, phases, methodologies, and expected outcomes. Box 14 provides ten general principles about conflict management that serve as an overall guide for practitioners intervening to manage conflicts.
To complement the above, Fisher (1996) provides a summary of the fundamental tools (in this case, with attention to accommodating multiple interests in common property regimes):
The fundamental tools of conflict resolution --improved information-gathering, dialogue and relationship-building among stakeholders, and the strengthening and/or creation of sustained institutional mechanisms to forge, implement and continually monitor agreements-- have wide application in the commons. (Fisher, 1996:p. 5)
Becoming involved in a conflict with the intent of mediating a solution is a delicate issue that begs answers to two basic questions (see boxes 15 and 16):
A mediator needs to look at the conditions that may allow her or him to take on the role as neutral third party and become effective. Box 17 provides a summary of such conditions.
Box 17: Conditions in which mediation is effective
(Adapted from: [Pruitt and Carnevale, 1993:175-6]) |
On the other side of the coin, the disputing parties must also agree on the need for a mediator. In other words, stakeholders make choices among three different classes of procedures for dealing with social conflict. Procedures can be grouped into the three classes (Pruitt and Carnevale, 1993:183):
The three classes of procedures for dealing with social conflict form a continuum, and numerous factors influence why stakeholders or "disputants" will opt for one over another, depending on the nature of the conflict, the stage of the negotiation, and the attributes of the mediator. Box 18 provides an example that elaborates on the differences across the approaches.
Box 18: ExampleA small farmer and local landlord are in a dispute: the first claims that the limits of his property have been reduced by one ha. after the landlord increased the cultivated area while the other demands the property of the whole cultivated area. Negotiation would mean discussing these issues, and mediation would involve the help of a third party. Adjudication would mean going to court, whereas arbitration would involve a hearing and a decision by an official of lesser rank than a judge. Autocratic decision-making occurs when the third party gathers the information directly rather than inviting testimony in a hearing. If one of the disputants gives in - if the small farmer were to abdicate his position and agree to the landlord's - it would be yielding or retreating. Struggle occurs if one or both disputants employed harassing moves, such as destroying the crops planted in the concerned one ha. or put a fence to mark the limits. Finally, tacit co-ordination would involve both parties trying to work out an exchange of concessions without talking, for example if the first reduced the claimed area to half, and the other were to commit to provide part of the collected harvest of the claimed area in kind. In this classification, struggle is the only procedure in which the disputants do not collaborate. At any point in the process, disputants will differ in their preference for these various procedures, but with the exception of retreat, they almost always end up using the same procedure. (Adapted from Ramírez, 1999:112) |
The choices made by stakeholders are based on their perception of the odds of success at a minimal cost, and the choices will change over time and hence are not mutually exclusive. These choices may be made explicitly or not, but they are always based on the perceived odds of advancing one's interests. For traditional societies that retain indigenous conflict management systems, the above may be relevant only when a conflict situation involves other cultures, norms and institutions beyond what the local systems are able to address (Fisher, 1996). In addition, stakeholders make decisions on the basis of other factors beyond the apparent, immediate self-interest (see Box 19).
Box 19: Choice is subject to other factors"The decision of stakeholders to engage in negotiation is influenced by many factors, not simply self-interest. Pruitt and Carnevale (1993) suggest that, beyond self-interest, preference for different conflict management procedures is a function of:
Most disputants have some degree of concern for the other party's welfare, especially as they continue to interact in future. Norms, including principles of fairness, encourage efforts to achieve equal outcomes and concessions. Past and future relationships will shape positions, especially when stakeholders know they will have to continue interacting with opposing groups on a regular basis. Furthermore, coalitions form within organizations to influence positions; coalitions are common in multistakeholder negotiations where groups of stakeholders may coalesce to build support for a position." (Ramírez, 1999:113) |
Critics warn that consensus processes are powerful tools, but they can also artificially manufacture consent and agreements that ordinary political processes are unable to do (Britell, 1997). Collaborative approaches are attractive, but there is a danger if underlying power differences are ignored (Hildyard, et al., 1999; Hildyard, et al., 1998). Who comes to the table and who does not, has to do with the options different stakeholder have. Staying away from the negotiation table is something powerful stakeholder can opt for, and this is the essence of the notion of having a "best alternative to a negotiated agreement".
Stakeholders enter into negotiation when it is seen as the best alternative to what they could expect to obtain "away from the bargaining table" (BATNA). Western negotiation writers do not differentiate between conflict and collaboration; their thinking focuses on how to increase one's power in negotiation. The notion of the BATNA, or "best alternative to a negotiated agreement" is central in this thinking. "The better your BATNA, the greater your power." (Fisher and Ury, 1981:106) In other words, power in negotiation also stems from having alternatives. Box 20 provides examples of this thinking.
Box 20: How to have a BATNA"Generating possible BATNAs requires three distinct operations:
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...Having gone through this effort, you now have a BATNA. Judge every offer against it. The better your BATNA, the greater your ability to improve the terms of any negotiated agreement." If the other side has a very strong BATNA, they will not negotiate until you come up with a stronger one (e.g. by starting a legal suit). If both sides come up with strong BATNAs, they may realize the each wins most by not trying to reach an agreement. "The more easily you can walk away from a negotiation, the greater your capacity to affect its outcome…Developing your BATNA is perhaps the most effective course of action you can take in dealing with a seemingly more powerful negotiator." (Fisher and Ury, 1981:pp. 110-1) |
The notion of BATNA is particularly important in explaining those cases where one stakeholder has the power to stay away from the negotiation process. When the power differences between two parties are even, the odds of a gain through negotiation increases. Hence the choice to negotiate is associated with not having a strong BATNA. A complementary notion to BATNA is collective action. In the case of agrarian reform in Nicaragua, one author concluded that peasants who were able to subsist independently were less prone to work collectively, while those who voluntarily worked collectively tended to come from the poorest sectors of society (Enríquez, 1997). In other words, collective action was the last resort for those who could not 'go at it alone'.
This means, that for a negotiator to become involved, the different parties will have had to agree on the approach to deal with a conflict. This 'locates' mediation in the context of a broader number of approaches.
Gray (1989) reminds us that the selection of a mediator "…is also a political activity. The power to mediate is derived, at least in part, from the mediator's affiliations and particular interest. The success of a mediator, then, hinges on the ability to influence each of the parties in the collaboration and on the parties' willingness to be influenced by the mediator's actions." (pp. 165-166). Box 21 summarizes disputants' motives for agreeing to a mediator (the example in this case is specific to international disputes).
Box 21: Disputants' motives for agreeing to a mediator in international disputes
Source: Touval and Zartman, 1985 as cited in (Gray, 1989:165-6) |
Once negotiation is possible and the parties are in agreement to collaborate, then according to Gray (1989), there are three major phases to complete (see Box 22).
Most approaches in the literature follow comparable phases, with numerous variations (refer to the two examples included in the Appendices).
The contingency model in Figure 5 also refers to outcomes. If conflict is subjective, then what is the nature of the outcome and who decides whether it is resolved or settled? Hill (1982) differentiates between the two terms by underlining that a resolved conflict is one where the parties have developed integrative solutions that do not require compromise. On the other hand, a settlement may be associated with the parties being coerced into accepting a solution, often by threat and or by reference to a past norm or practice that may no longer be perceived as relevant or fair.
Mediation outcomes/benefits for the disputants can include: Agreement, satisfaction, efficiency (cost-effective and expedient), improved relationships, procedural justice, favorable agreements, empowerment, improved problem solving, restorative justice, and higher compliance/implementation. Mediation outcomes/benefits for the mediator can include: |
Box 23 provides some general guidelines to judge the success of collaboration.
Box 23: Criteria for judging the success of collaboration:
(Gray, 1989: 256-7) |
The notion of conflict resolution has become less popular in recognition of the inevitability of conflict on the one hand (Hildyard et al., 1998; 1999; Daniels and Walker, 1997), and the cyclical nature of collaboration and conflict on the other (Ramírez, 1999, 2001). The notion of conflict management has largely replaced the term.
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