RESOLVE DISPUTE THROUGH NEGOTIATION

Chapter 1

Introduction

De ar trainees! This chapter aims to provide you with the knowledge, skills and right attitudes to
understand alternative dispute resolution mechanisms. Disputes may arise in different places with
different situations; for instance, it may rise in work places due to the nature of the
environment. It includes how to identify and assess conflict situations, implement strategies to
resolve conflict and monitor the situation. And once if these disputes have risen, there are
hierarchical resolving mechanisms. Negotiation, arbitration and litigation are alternative dispute
resolution mechanisms.

The scope of this chapter is basically, negotiation, which is a dialogue between two or more
people or parties, intended to reach an understanding, resolve point of difference, or gain
advantage in out-come of a dialogue, to produce an agreement upon courses of action, to
bargain for individual or collective advantage and to craft outcomes to satisfy various interests of
two parties involved in negotiation process. Negotiation is a process where each party involved in
negotiating tries to gain an advantage for themselves by the end of the process. Therefore,
negotiation is intended to aim at compromise.

1.1 Conflicts, Causes and Their Consequences

Conflict is an inevitable aspect of human interaction, an unavoidable

concomitant of choices and decisions. Conflict can be prevented on some
occasions and managed on others, but resolved only if the term is taken to
mean the satisfaction of apparent demands rather than the total eradication
of underlying sentiments, memories, and interests. Only time really resolves
conflicts, and even the wounds it heals leave their scars for future
reference. But short of such ultimate healing, much can be done to reduce
conflict and thereby release needed energies for more productive tasks.

A successful relationship strategy depends on effective communication.

Removing barriers is an effective way of improving communication, and
requires an understanding of the communication model.
1.1.1Conflicts

Conflict is a social fact in which at least two parties are involved and
whose origins are differences either in interests or in the social position of
the parties. Consequently, a land conflict can be defined as a social fact in
which at least two parties are involved, the roots of which are different
interests over the property rights to land: the right to use the land, to
manage the land, to generate an income from the land, to exclude others
from the land, to transfer it and the right to compensation for it. A land
conflict, therefore, can be understood as a misuse, restriction or dispute
over property rights to land. Land conflicts defined as such can be
aggravated if the social positions of the parties involved differ greatly.

The nouns ‗Conflict‘ and ‗Dispute‘ are used interchangeably. A crucial step
towards the reduction of conflicts is to better understand the apparent
demands and interests and – although they cannot necessarily be healed if
previously injured– the underlying feelings and emotions, too. Important
information to find an adequate solution for each (land) conflict is gained by
increasing this understanding of the positions and attitudes of the conflicting
parties.

In order to successfully resolve land conflicts, it is important to be aware of

the many different types of land conflicts. One difference is found in the
identity of the actors involved, some of them being legitimated to act in
the way they do, others not. Other differences are found in aspects of the
land itself, whether the conflicts occur on state, private or commonly owned
land. Still other differences result from the complexity of causes of the
conflict, as well as how these influences and intensify one another. Finally,
the dimension of a land conflict varies significantly which makes a major
difference for its resolution. Understanding the specific nature of the land
conflict under consideration is a vital step in its eventual resolution. Land
conflicts occur in many forms. There are conflicts between single parties (as
for instance boundary conflicts between neighbors), inheritance conflicts
between siblings and disputes over the use of a given piece of land.

1.1.2 Causes for Dispute

Corruption – bribery, fraud, nepotism, favoritism – in land administration
and state land management is a widespread problem, and leads to a high
number of land conflicts all over the world. Many other land conflicts result
from the multiple sales and double allocation of land, either due to legal
pluralism or undocumented customary tenure, or due to competing state
agencies all legitimized to do so. Due to rural-urban migration as well as
natural population growth, most cities in developing countries cannot
formally absorb all their citizens. People therefore tend to squat on public
land as the chances of being evicted there are slightly lower than on
private or common land. The problem remains, however, for the city as well
as for the squatters living in uncertainty. The details of the causes are
discussed below.

1.1.3 CoConsequences of Land Dispute

All land conflicts, no matter how peaceful or violent they are, produce
negative consequences for individual people as well as for the entire society.
Many families across the world have seen their shelters – their homes –
being bulldozed out of existence. Whenever there is a land conflict,
someone suffers economic consequences. In extreme situations, people find
themselves landless and/or without shelter. In the case of a farmer, this
often includes the loss of his/her production base. But that‘s not all. Where
there are many land conflicts, social stability within society is affected, as
land conflicts undermine trust and increase fear and suspicion often
between formerly close people such as neighbors and family members.
Violent land conflicts or simply the fear of becoming a victim of them can
also have a traumatizing effect on those who are or feel at risk. In addition,
whenever state land is allocated illegally it generally affects the nation‘s
budget negatively and often results in ecological destruction or social exclusion.

Chapter 2

Alternative Dispute Resolution Mechanisms

2.1Types of Dispute Resolution Mechanisms
For effective dispute resolution, one must go down the
path of discovering what a person must consider when
communicating. It is important to understand what people
experience in daily communications including the art of
listening, what we remember, what we absorb from our
conversations and how we translate that information into
useful communications methods to achieve business goals.
Basically, when disputes are arisen, there are three
resolving mechanisms. They are: Negotiation, Arbitration
and Litigation. Those mechanisms can be applied based on
the degree of the dispute. They are hierarchical, in that, if
the first solution does not work, the next solution will be
applied and then, the final solution will be applied. When
the degree of disputes are increasing from simple to
complex, then resolving mechanism also goes from
negation-toarbitration-litigation which means that from
informal to formal dispute resolution mechanisms.

Negotiation: negotiation is back and forth communication

designed to reach agreement while leaving the other side
intact and positive. It is easier to negotiate when the two
sides have some shared interests and some opposed.
Negotiation can be soft: Participants are friends. The goal is
agreement. Hard: Participants are adversaries. The goal is
victory

Mediation Mediation requires that the parties

are willing to face each other and to find a
compromise. The mediator follows a strict
procedure, giving each party the opportunity to
explain its perceptions and to express its
feelings, forcing the other party to listen and
finally moderating a discussion aimed at finding
a solution with which both parties can live.
Preferably, the moderator should not propose
solutions but may lead the way towards them.
At the end, a written contract is signed by all
parties and the mediator seals the agreement.
Mediation can be done in any situation as long
as the parties are willing to find a compromise.
Arbitration: the arbitrator is expected to make
direct suggestions on how to settle the conflict.
He/she is more influential and powerful than
moderators, tutors or mediators. He has
decision-making authority. Therefore, arbitration
can be used even at the peak of a conflict.
What makes it different from adjudication is
that the arbitrators are accepted and trusted by
both parties. The arbitrator may be appointed
by all conflicting parties or be a respected
person traditionally responsible for dispute
settlement.

Chapter 3
Negotiation as Dispute Resolution
Mechanism
To achieve success in negotiations, effective
communications must be a focal point of
the strategy employed. From listening to
communicating both verbally and
nonverbally, all the signals sent (and
received) affect the outcome of your
negotiation efforts. You must develop an
overall communication plan and know how
as well as when to use the various
communication skill techniques during the
negotiation process. Understanding the
difference between tactical and strategic
negotiations will also affect the types of
communication skills used and the degree of
openness employed during negotiations.
Communication is a two-way street that
requires everyone involved to exchange
messages. Between parties, communication
includes acts that confer knowledge and
experiences, give advice and commands, and
ask questions. These acts may take many
forms, in one of the various manners of
communication. The form depends on the
abilities of the group communicating.
Together, communication content and form
make messages that are sent towards a
destination. Good communication requires
both verbal and non-verbal skills as well as
listening skills to find solutions that respond
to the underlying issue at hand. It is the
cornerstone of any productive negotiation.
Negotiation occurs in business, non-profit
organizations and government branches,
legal proceedings, among nations and in
personal situations such as marriage,
divorce, parenting, and everyday life.
Negotiations have particular importance in
business.
Some people say that ―the business life is
a permanent negotiation with other people
who are defending their own interests‖.
Many people wrongly assume that nothing
is negotiable unless the other party indicates
that this is the case - a more realistic view
is that everything is negotiable.
3.1 Negotiation Process
There are four stages in the process of
negotiation.
a) Preparation: when it comes to
preparation, there is basically a need to
have a clear idea of how to go about with
starting points. One of the keys to effective
negotiation is the ability to express own
thoughts clearly to the other party.
b) Exchanging Information: the information
provided to other party must always be
well-researched and must be communicated
effectively. If there are any doubts, they
should always be clarified.
c) Bargaining: the bargaining stage could be
said to be the most important of the four
stages. This is where most of the work is
done by both parties. This is where the
actual deal will begin to take shape.
Bargaining is never easy. Both parties would
have to learn to compromise on several
aspects to come to a final agreement. This
would mean that each party would
therefore have to give up something to gain
another.
d) Closing and Commitment. The final stage
would be where the last few adjustments
to the deal are made by the parties
involved, before closing the deal and placing
their trust in each other for each to fulfill their
role.
3.1.2 Outcomes of Negotiation
✓ Both sides should come to consensus and
commit to the agreement
✓ The agreement should help to maintain
ongoing communications and interactions
between the negotiating parties so that future
negotiations can take place
✓ Negotiations should lead to a better
situation.
Chapter 4
Evaluating the Success of Negotiation
The complexity of the negotiating
process will vary according to the size
and complexity of the proposed deal as
well as the attitudes adopted by the
parties involved. The actual negotiation
process in terms of time and intensity
depends on the following factors:
✓ the goals and interests of the parties,
✓ the perceived interdependence
between the par-ties,
✓ the history that exists between the
parties,
✓ the personalities of the people involved,
and
✓ the persuasive ability of each party
Basically, there are two types of
negotiation process that differ
fundamentally in their approach and in
the relative prospects for the stability of
the agreement that is reached.

• Integrative or win-win approach: in

these negotiations the prospects for both
sides‘ gains are encouraging. Both sides
attempt to reconcile their positions so
that the end result is an agreement
under which both will benefit - therefore
the resultant agreement tends to be
stable. Win-win negotiations are
characterized by open and empathetic
communications and are commonly
referred to as partnership agreements.

• Distributive or Win/Lose Approach: in

these negotiations each of the parties
seeks maximum gains and therefore
usually seeks to impose maximum losses
on the other side. This approach often
produces agreements‘ that are inherently
unstable. Capable negotiators understand
that the stability of the outcome is
important and focus on more than
simply maximizing the concessions that
can be extracted from the other side.
4.1 Recognizing Stress Management
Whilst there are an infinite variety of
negotiation scenarios, most negotiations
are defined by three characteristics:
a) There is a conflict of interest between
two or more parties. What one wants is
not necessarily what the other want.
b) Either there is no established set of
rules for resolving the conflict, or the
parties prefer to work outside of an
established set of rules to develop their
own solution.
c) The parties prefer to search for an
agreement rather than to fight openly,
to have one side capitulate, to break off
contact permanently or to take their
dispute to a higher authority. Many land
conflicts can be predicted and if not
avoided at least mitigated if provisions
are made against them in time. It is
therefore crucial to be aware of those
changes and occurrences that have the
potential to trigger land conflicts. Once a
potential cause of conflict has been
identified, the extent of possible land
conflicts and the scope of their social,
economic, ecological and political
consequences should be roughly
calculated, and immediately
communicated to decision-makers and
responsible land management experts at
both the central and local level. Land
conflict experts should preferably discuss
with these decision-makers which
measures should be taken to avoid
massive land conflicts. Failing that,
proposals should be made to them.