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Developing and choosing options to move towards a decision

When negotiations fail, a decision from the facilitator is needed. That comes with some difficult challenges.

What challenges does it focus on?

Organizing the process of coming to a decision if negotiations fail. Developing options and helping parties to select a good process.

Short summary

Organizing a decision is probably the most difficult task of a facilitator. It comes with different challenges:

  • Remaining neutral and pushing for a fair solution is difficult. Organizing the option of a third party decision may be seen as forcing a solution
  • On the other hand: If there is no realistic option of a third party decision, a settlement can be unfair. The other party can make a low offer. It is difficult for the client to refuse this. Because it would take too long and be too costly to obtain a (court) decision.
  • In many countries, court procedures are slow and costly. People with low incomes and little power cannot afford to go to court. So the facilitator has to organize an alternative.
view full explanation

If parties cannot come to an agreement over the dispute, facilitators know that a decision is needed. Attitude of the facilitator at this stage

  • The facilitator feels responsible for a fair solution, within reasonable time and at low costs. He supports the parties to get this.
  • In particular, he helps the party who needs the outcome most. The facilitator will organize a decision, if necessary without cooperation of the other party.
  • The facilitator knows that a fair settlement is often not possible, unless there is a threat of a third party decision.
  • But the facilitator is neutral as to the outcome. He aims for a decision that is fair and acceptable to both parties.
  • The facilitator safeguards neutrality.
  • The facilitator ensures a good and fair process. Letting the parties grow towards a decision, that is the aim of the facilitator.
  • Some facilitators have as a principle that they do not push the parties to a decision.

Approach

  • The parties need to move from their positions. Usually, this is a step by step process.
  • Usually, this means involving third parties. These can be influential people, people from the community, judges, informal courts, people with expertise, committees, officials.
  • This has several effects on the parties: They learn which outcomes are seen as fair by people that are important to them. They can learn from people with expertise. People who know how to value land or how to solve an inheritance dispute. There is also a threat that the third party (a judge, a leader or other people with authority) will take a decision for the parties.
  • Often, that pressure is enough. The parties start moving again and settle.
  • In some cases, it is really needed that a judge or another person with authority takes a decision.

Listing the options of involving third parties
Third parties are involved by facilitators in different ways. These are the practices we found:

  • Starting a procedure before a judge, a court of law.
  • Bring the case before a village court, a specialized commission for land or village conflicts, a government agency. Sometimes there is an existing tribunal that can take a decision on the case.
  • Set up and involve a new committee or tribunal. For one case of for more cases (a village court, a family disputes commission, an ombudsman). The facilitator or his/her organization creates this tribunal.
  • Ask influential people to assist the facilitator. They join at the table. Gradually, a panel is formed that grows towards a decision with the parties. Or takes a decision for the parties.
  • Ask influential people to intervene informally.
  • Ask an influential person to give an advise how to settle the issue.

For each option, the costs and benefits can be estimated:

  • Money and time to be spent. Legal costs. Costs of travel, documents and evidence. Involving an influential party may be very cheap. Court processes may be very expensive.
  • Time it takes to go through the process. How long will it take to organise? How quickly will the decision be reached? Will the parties have to be present for long periods of time? Travelling time?
  • Chances of success and resistance expected. How likely is it that the other party will cooperate? Will he listen to this third party?
  • Expected outcome. Will it be fair and neutral? What will be the added value for each of the parties?
  • How neutral will the decision be? Locally influential people may have ties to one party or the other. 

Choosing from the options

  • Discuss the options with the parties, and try to come to an agreement jointly. If the parties can agree on the path to a decision, that is a good thing.
  • But experience shows that they often disagree. Each party is likely to have different ideas about involving third parties.
  • So facilitators tend to organize a neutral decision, also if one party does not cooperate.
  • Then the facilitator will chose the option that has lowest cost and is most likely to lead to a fair process and outcome.
  • Sometimes it is good to start a court procedure and to involve other third parties at the same time. Starting more then one process may increase the possibility of a quick and fair solution. Generally, this will take more time and money, however.
  • So it may be better to try a low cost option first. Only if this fails, a next step will be taken.

Research evidence

Evidence from practice

  • In Rwanda people have the options to involve family, paralegals or Abunzi courts to put pressure on a decision
  • In Cambodia, people have the option to go to the Commune Chief, a facilitator of ADHOC, a legal aid organisation or to court
  • In Egypt, it is common to go to a kebir and other options are going to court or to ask for dispute resoltuion at a legal aid organisation.


Evidence from literature

Third parties play key roles in preventing, resolving and containing fighting.

Ury, W. (2000). The Third Side. Penguin, New York:New York

This article advances 3 explanatory strands, or generalizations, that wind through this experimental literature: (a) Third parties facilitate concession making without loss of face, thereby promoting more rapid and effective conflict resolutions than would otherwise occur. (b) Traditional 3rd-party intervention techniques that are effective when conflict intensity is relatively low may prove to be ineffectual and even exacerbating when conflict intensity is high. (c) The parties to a conflict may view 3rd-party intervention as an unwelcome and unwanted intrusion. To the extent that the disputants can resolve conflict of their own accord, they will.

Rubin, J. Z. (1980). Experimental research on third-party intervention in conflict: Toward some generalizations. Psychological Bulletin, 87(2)

In order to design appropriate court alternatives outside of hte commercial field, consideration must be given to: The nature of the dispute or grievance at issue and the range of possible outcomes: The balance of resources between the parties in terms of finance, experience and competence; And the complexity of the relevant law.

Genn, H. (1993). Tribunals and Informal Justice. The Modern Law Review 56(3)

Best practices