by Ricardo Ramírez, PhD
for the Land Tenure Service,
FAO Rural Development Division
Part 4 of 4
1 2 3 4
Alternative dispute resolution (ADR), and alternative conflict management (ACM) approaches have emerged in the literature to describe win-win alternatives that basically belong to the first collaborative approach (joint decision-making). Such approaches are based on the following premises:
ADR embraces value differences and strategic behaviours (Daniels and Walker, 1997). While there is broad consensus that conflict is to be expected as an inevitable mechanism of adjustment among different parties' interests, there is also the differentiation to make between violent and non-violent conflict. "The presence of absence of conflict-mediating mechanisms and institutions are central factors influencing whether a conflict passes the threshold into violence - this might include representative political systems, a transparent and fair judicial system, an equitable social system, and so on." (Bush and Opp, 1999:1887). This is what some authors refer to as bounded conflict, where a minimum of rules are followed and the parties are able to develop new arrangements and 'learn'; whereas in unbounded conflict the rules are disregarded and there is less scope for 'learning' (Lee, 1998). In land conflict management, this differentiation is central, as so often such conflicts are part and parcel to a change in tenure laws.
"Rather than a simple set of techniques or procedures, alternative conflict management can be seen as a more holistic and process-oriented approach to addressing conflicts and the underlying conditions which give rise to them. What this approach sets out to do is to complement initiatives which seek to change human behaviour with those which address broader institutional and power relations in societies." (Hendrickson, 1997: 21)
Furthermore, ADR recognizes that for customary mechanisms of dispute resolution to remain effective, the diversity of customary land tenure arrangements needs to be recognized. (Hendrickson, 1997). Hendrickson emphasizes that ADR is about reconciling traditional and modern law. In Eastern and Southern Africa, the renewed recognition of customary tenure systems as equivalent in the eyes of national law (Alden Wily, 2000), would suggest that there will be further scope for ADR approaches.
ADR focuses attention on the difference between positions and interest. A position is something a party has decided upon, whereas interests are made up of the needs, desires, and concerns that motivate people. Negotiation works best along interests, as there is always rooms to explore alternatives, especially when particular needs and interests may be shared among the parties. ADR approaches therefore place emphasis on finding options that are acceptable to both parties. In addition to legal training, ADR practitioners require training in negotiation techniques, mediation and conciliation, participatory approaches including diagnostic and problem identification, networking and communication. A central theme in ADR is finding ways to constructive conflict resolution.
ADR is an example of a joint decision-making approach to dealing with social conflict. It is less intrusive and less costly -in monetary and social terms- than any sort of third-party decision making, especially as those procedures involve outsiders who may arbitrate or adjudicate without regard for, nor understanding of, the social fabric underlying their decision. Most people in a conflict will prefer the more familiar and traditional forms of mediation or customary arbitration.
"This continuing support for locally based solutions is explained by several factors:
ADR provides an avenue for situations where customary systems cannot provide the answer on their own, but where both parties remain reluctant to formal, external approaches. ADR follows a set of principles that suggest more respect will be given to customary rules, even if the customary mediation system is not being used, and to social networks and cultural norms that are important in a society. As was mentioned earlier (Box 15), people in a dispute very often need to continue interacting, and an accommodated settlement that is acceptable to both parties may help 'save face' in contrast with a costly externally-imposed solution. ADR is culture-specific, whereby it is paramount to work within oral and cultural norms of communication and social behaviour (Lederach, 1992).
We have now covered two sets of concepts or elements, one summarizes as part of the substance of a conflict, and the other as parts of the process to manage a conflict. In Figure 2, these elements appear listed as components of two dimensions: substance and process. In a rich picture, they would appear as tightly interconnected, as each influences the behaviour of the other. Any land conflict should conceivably lend itself to be analyzed through the above two dimensions and conceptual groupings. What has been accomplished thus far is analogous to the job of organizing the pieces of a puzzle before attempting its assembly; the problem in this case is that we are 'playing' with two puzzles. A number of questions arise regarding their integration:
Moving ahead in complex, interdisciplinary subjects is both a practical and theoretical challenge. The old tools of the trade are no longer useful and new approaches are needed. It is noteworthy that the literature coming out of forestry management and pluralism (Daniels and Walker, 1997; Anderson et al., 1998), conservation and protected area management (Borrini-Feyerabend, 1996; Borrini-Feyerabend et al., 2000), natural resource management (Lee, 1998) and agroecosystem management (Lightfoot et al., 2001; Engel et al., 2000; 2001) all highlight the need to learn, consult multiple stakeholders, and adapt management schemes. The methodological innovation in this field is often associated with the term learning (Ramírez, 2001). Those who innovate in this field are the practitioners, mediators, and facilitators; they are the ones who are learning from conflict (see Box 24). It is they who assemble the puzzles.
Box 24: Learning from conflict
Guides for action
Pitfalls to avoid
(Tjosvold, 1993:p. 24)
The challenge now lies in creating the learning spaces, tools and resources to invite practitioners into centre stage. They can assemble the puzzles and provide us with the field level examples on which future analytical frameworks may be built. For now, a learning approach based on empirical evidence appears to be the most promising opportunity.
This Conceptual Framework has provided a conceptual map to locate the contextual, procedural and organizational/site specific dimensions of land conflicts. One typology of land conflict is borrowed from the literature as an example of a taxonomy based on Nicaragua's property rights and use rights. No regional or international taxonomy is proposed, though two general examples from the forestry and common property resource management fields are presented. The paper points towards the challenge of creating organizations that can complement existing legal and paralegal institutional frameworks and introduce joint decision-making approaches for conflict management. While such approaches are not the only ones available, they are emphasized as they may offer more cost-effective and simple procedures relative to formal legal systems.
The review of the literature revealed precious little published material on alternative dispute resolution and land conflict management experiences, though there are bound to be experiences in the gray literature that have yet to be distributed. Conflict assessment in land tenure can emulate the experience from community-based natural resource management where some initial policy and training practices are being recommended (Box 25).
Box 25: Conflict management assessment
Interventions to assist in the management of conflict within community-based natural resource management (CBNRM) should be preceded by a 'conflict management assessment' (CMA). This assessment should consider:
(Warner and Jones, 1998: 1)
The nature of the organizations that could take on mediating roles is emphasized in this paper. It is those organizations that would require the training and legitimized status to begin experimenting with alternative dispute resolution techniques. The concepts described in this paper would constitute elements of a training curriculum. The task of matching conflict situations with particular conflict management approaches is an art that is learned through apprenticeship. The mediator needs to juggle the different variables and acknowledge the context in making decisions about where, when and how to intervene. Many of the text boxes in this paper serve as guides for practice, but the experience of practitioners on the ground is the foundation to work with.
There is a vast challenge at hand in terms of integrating theory and practice. There is scope for creating a new body of experience and reference material to support the development of mediating organizations able to apply conflict management approaches to land conflict situations. There are no blue prints, but there are plenty of reference materials from other disciplines. As is the case with other approaches for accommodating multiple interests, the innovation needs to take place in an action-learning process, where learning is the mechanism to develop new approaches (Lightfoot et al., 2001; Ramírez, 2001).
This paper provides but a glimpse of the resources at hand. Box 26 provides some guiding questions to develop such an agenda. It is now time to hear from the field, from the real world experiences that should challenge this State of the Art review and create a dialectic between concepts and experience. The words of poet Miguel Machado come to mind, caminante no hay camino, se hace el camino al andar (traveler, there is no path; you make it as you walk).
Box 26: Guiding questions
The Conflict Resolution Model (Hill, 1982:116)
The Comparative Conflict Resolution Typology (Rothman, 1989:273)
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1The study will serve as the main input for the production of "Guidelines for negotiated land conflict resolution (based on comparative analysis of case studies of countries in Latin America, Africa, and Asia)", which is output 3 of the FAO/SDAA 2002-2003 Workplan major output: Assistance for land tenure modifications under indigenous and common property resource management systems, for balanced rural development.
2 This summary is based on material provided by FAO's Land Tenure Service, readers are referred to the original source for further analysis (FAO, 2001).
3For this Conceptual Framework, the keywords "conflict", "dispute", "resolution", "management", "land", "tenure", and "reform" where used for electronic library searches for book titles, social science journal indexes, and electronic databases.
4There is scope for other frameworks that use quantitative modeling approaches; some that are published are country or context-specific (Alston, et al., 1999; Barringer, 1972).
5Paul de Wit contributed the notion of catalysts with examples from Angola and Mozambique during the October 2001 Workshop on Land Conflict Management in Rome.
6These phases complement some of Barringer's analysis about the shift from disputes to conflicts (Figure 3, p. 15; and Figure 4, p. 16).
7The phases of the conflict is a main parameter used in conflict resolution typologies and models, some are presented in Part 3. 8A significant part of this section was prepared with inputs by Jonathan Lindsay, LEGN, FAO.
9The Brazilian example quoted earlier by Alston et al., 1999b (p. 21) is a case in point, where different parties access the tenure system that suits their interests. Other cases where different legal frameworks are at play have been mentioned (Tarraciano in Niger, p. 20; Goodale and Sky in Bolivia and Norway, p. 25).
10Ejidos: lands distributed after 1915 to groups of twenty or more land claimants or ejidatarios. Until 1992 these lands belonged to the state and were worked by ejidatarios. They could not be legally sold or rented. Roughly half of Mexico's rural land area is comprised of 28,000 ejidos on which 3 million ejidatarios and their families work. (Goldring, 1996:328)
11To clarify the meaning of "institutions" vs. "organizations", we refer to the work by Norman Uphoff: "Confusion in talking about "institutions" and "organizations" arises because although they refer to different kinds of phenomena, they represent overlapping sets." (Uphoff, 1997). Uphoff provides examples of institutions that are not organizations (money, the law, taxation), of organizations that are not institutions (a family, a bank office, a tax advice office), and of institutions that are also organizations (the Government Land Registry, the Revenue Service, Oxford University).
12In the broader picture, however, the redistributive impact of land reform in the Philippines under the Aquino and Ramos governments has not been impressive, namely because the democratic regime has not altered the political influence of national or regional élites (Riedinger, 1995).
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