ToolBox

Characteristics

This section looks at four intervention tools for dispute management: facilitation, mediation, fact finding and arbitration:

Facilitation is often used in situations involving multiple parties, issues and stakeholders, and where issues are unclear. An impartial individual participates in the design and conduct of problem-solving meetings, to help the parties jointly diagnose, create and implement jointly owned solutions. Facilitation works best in low to medium level conflicts. In such cases it can be used for definition of problems and goals and identification of personal and institutional support. Facilitation may be the first step in identifying a dispute resolution process.

Mediation is an interest-based negotiation process. The parties choose an acceptable mediator to "guide" them in designing a process and reaching an agreement on mutually acceptable solutions. Parties often share the costs for mediation. The mediator tries to create a safe environment for parties to share information, address underlying problems and vent emotions. Mediation is also often undertaken at the suggestion of outside parties. It is more formal than facilitation and is used when there is some relationship among parties, even if it is acrimonious. It is useful when the parties have reached an impasse.

Fact-finding seeks to clarify and make recommendations regarding differences over data or substantive disagreements using one or more outside expert. Particularly useful in a technical environment. It has proved useful in site-specific construction cases, complex issues such as groundwater movement, and the clean up of waste. Dispute review boards and panels are a special form of fact-finding, providing parties to a conflict or dispute with a more objective evaluation of the dispute and all its dimensions by qualified and recognised experts. Fact finding approaches are most often used in the earlier stages of a conflict, e.g. before initiating legal actions or negotiations, and are most appropriate in technical or scientific disputes where specialised knowledge is involved.

In arbitration the parties submit arguments to an arbiter who acts as a judge. The parties turn over the formation of a solution to an outside party and it tends to produce less satisfactory solutions than mediation or facilitation, with most of the debate centred on claims and counter-claims. Arbitration is often used in the business world or where there is a need for a quick solution between a few parties. It is also useful where there is weak judicial authority, as in many international situations. Within countries arbitration is mostly voluntary and non-binding.

Lessons learned

• Water experts often view disputes as factual problems of information and misunderstanding of data. But in practice, disagreements are usually over interests and values rather than facts. Fact-finding in such cases is of limited use. This is especially true when the task at hand covers broad IWRM issues rather then specific project related issues.
• Disputes panels have been successful where the number of parties is small and the issues tend to be technical, even in very acrimonious situations. They also offer a useful model for forming disputes clauses in agreements among parties who will be working with each other.