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Establishing facts about the dispute

Every story has two sides. Decent fact-finding is important before a mediation process really starts.

What challenges does it focus on?

To hear both sides of the stories in order to find reliable information that supports these.

Short summary

The following ways of working have been put forward by facilitators as effective ways of establishing facts. How to conduct effective fact-finding:

  • Ask parties to tell their side of the story.
  • Compare these stories and point out the contradictory facts.
  • Ask parties what evidence they have to support these facts.
  • Ask parties how to deal with the different stories if they have no evidence.
  • Look for witnesses and talk to them. Witnesses can be proposed by parties. And the facilitator can find them through his own investigation.
  • Ask for the documents relevant to the dispute.
  • Visit important places (if it is a land dispute, go to visit the land, for instance)
  • Ask the parties to make and keep photos (i.e. of physical injury or material damage).
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Facts important for family disputes:

  • In case of violence, check whether there are reports from the hospital, photo's, neighbors who witnessed it. The facilitator can take pictures of bruises and other traces of violence.
  • Status of the relationship using proof of marriage, registration documents or statements
  • Economic relationship between parties: who controls the money?
  • Both parties' perceptions of gender roles, power dynamics and fears
  • Facts that reflect the interests of the parties

Facts important for land disputes:

  • Documents that prove ownership or other property rights
  • Photos of land, buildings or improvements
  • Proof of residency, such as letters sent to a party at the particular address
  • Official documents such as birth, marriage and divorce certificates, as well as family books showing how long someone held a piece of land
  • Witnesses statements from neighbors or other relevant witnesses
  • Copies of any electric, water, telephone, or other utility bills you paid for your house

Facts important for conflicts involving labor disputes:

  • Any proof of transfer of money
  • Witness statements
  • Written documents that can prove the existence of a labor contract

Research evidence

Evidence from practice:

Informal fact-finding: In the problem solving approach that is practiced by the CDRC's in Cambodia, explicitly no formal evidence is required to make a case. Written documents: Facilitators in Rwanda strongly emphasized the advantage of having written evidence, especially as proof of ownership of land, debt or work contracts.


Evidence from handbooks:

COHRE Cambodia, an NGO for housing rights, promotes a tool that outlines a set of formal and informal yet convincing forms of evidence.

COLLECT DOCUMENTS RELATED TO YOUR LAND AND KEEP THEM SAFE

  • Photographs of the land and any buildings or improvements you have made to it.
  • Letters sent to you at the address of the house.
  • Birth certificates, a living book or a family book for you and your family showing how long you have been living on the land.
  • The village chief’s statistics book.
  • Records showing any taxes paid on the land.
  • Copies of any electric, water, telephone, or other utility bills you paid for your house.
  • Documents from the buying or transfer of the land, for example, the contract of sale.
  • Voter registration forms.

In addition, you can also make their own documents to show they have been living on the land, for example:

  • Pictures of your family in front of your house or on your land
  • Signed or thumb-printed statements from neighbours, friends and officials saying how long you have lived in your house

Keep these documents in a safe place in case there is ever any conflict concerning the land that you live on. Never let anyone take the original documents away from you unless it is absolutely necessary. If an official needs to see them, you should make copies of the document and give the copies to the officials. If the official procedure requires the original documents, then be sure to keep copies and write the name of the person you gave the original documents to and the date you gave the documents to him or her. You can download the full report here.


Evidence from literature

Moore proposes a 12 step model for mediations, which includes a fact-finding and analysis phase before the mediation even begins.

Moore, C. W. (1986). The Mediation Process: Practical Strategies for Resolving Conflict. Jossey Bass, San Francisco: California
Encourage and advise parties on how to seek assistance to collate information or material needed for the dispute resolution process.

Baylis, C., Robyn, C., Power issues in mediation ADR Bulletin Volume 7 Number 8

Best practices