Decide
 - 4.1


Developing and choosing options to move towards a decision

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Purpose

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

Challenges

Organizing a decision is probably the most difficult task of a facilitator. 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.

Solutions summary

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 (see also Tool 1.2). 
  • 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 (Tool 4.3). 
  • The facilitator ensures a good and fair process. Letting the parties grow towards a decision, that is the aim of the facilitator (Tool 1.2).
  • 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 (Tool 4.2).
  • 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 (Tool 4.7).
  • 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 (Tool 4.6). 
  • Ask influential people to intervene informally (Tool 4.5). 
  • Ask an influential person to give an advise how to settle the issue (Tool 4.8).
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. Tool 4.3, Ensuring Neutrality, can help you here. 
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. 

Local solution: Conference Commentaries

Mediator invites influential people (teacher parents, leaders) to participate in the conference.
List of interveners from which parties can chose.
Involve non- neutral third parties (sometimes it works)

Bringing parties to the site of conflict with witnesses.
Mediators ask judges for advice.
Local (camp) courts monitoring judges involving media to make them work better.
In a land conflict case- we can bring in a third party that as authority over the unwilling party (powerful party to the conflict).
Challenges;
  • Neutrality of the third person if not chosen thoroughly .
  • The role of the third party does not intervene that of the mediator.

Make a map of conflict so people get insight in what they can do.

Getting advice from judges in Cambodia cannot be possibly.

Choosing people  from list (nº 1,2,3) so they do not all go to the busiest ones.

Women must be included in any list of 3rd parties interveners.

If the 3rd party is not available we can have some option from the list.

This is great; it prevents that the process has to start all over again to inform the 3rd  party.

What exactly is how we want the third party role to be?.
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Local solution: How to Map which Influential Third Party to Approach and Involve Him or Her

 

Let each party appoint an expert or counselor and again unanimously a chairman. Such that there is always an odd number of experts / counselors.

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Local solution: A list of 4th party decision-makers

The roles of forth party at this point is not to make decision on behalf of any party to the conflict; but to assist, encourage, provide with some instructions, guidelines to both parties or put some pressure on them if necessary. In responding to the above roles, forth party must be a good person with neutrality, capacity and influence. So, in order to do this work successfully; mediators need to:

  • Make a name list of forth party around 4 or 5 people including some women, selecting people from the village such as school teachers, elderly people, pagoda Acha (Clergy), nuns or relatives etc. and show to parties to select anyone they like.
  • Mediators should convince forth party to participate in the mediation process of the case.
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Added by: ADHOC

Local solution: Involving a 3rd party

What to do:

  1. Seeing the conflict mapping, identify any institution or a neutral figure who can assist to explain the nature of the case to all parties. This important figure can be from a religious leader, the head of village, NGO, government officer, etc
  2. Let this outsider involve after you explain its objective to all parties. Let all parties know the benefits and its implications of his/her involvement in the dispute
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Local solution: A Family Court

Note:     Family Courts are applicable in certain cases, such as in domestic violence or inheritance dispute

  1. Find an authoritative or important figure who is respected by disputing parties and ensure that this figure is in neutral position
  2. Talk to that figure. Explain who you are and what your role is in mediation process. Express that what you expect is a fair and transparent mediation. Their presence in the mediation is NOT TO sharpen their differences
  3. In the mediation meeting, let them lead the meeting
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Added by: KBH

Local solution: How to map which influential third party to approach and involve him or her

The roles of forth party at this point is not to make decision on behalf of any party to the conflict; but to assist, encourage, provide with some instructions, guidelines to both parties or put some pressure on them if necessary. In responding to the above roles, forth party must be a good person with neutrality, capacity and influence. So, in order to do this work successfully; mediators need to:

  • Make a name list of forth party around 4 or 5 people including some women, selecting people from the village such as school teachers, elderly people, pagoda Acha (Clergy), nuns or relatives etc. and show to parties to select anyone they like.
  • Mediators should convince forth party to participate in the mediation process of the case.
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Added by: ADHOC

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 handbooks

Evidence here

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)

Developing and choosing options to move towards a decision

by admin on November 25, 2011

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