Characteristics
Conflicts surrounding water resources or water management can occur for many reasons. Competition over scarce resources, differing objectives and methods, or even different styles in communication and behaviour can lead to contention. So can jurisdictional ambiguities and functional overlaps, unmet expectations or needs, and unequal power or authority. Consequently, water managers and programme facilitators need tools to tackle and resolve those situations in order to successfully implement water policies or projects.
In most water resources cases, these tools encourage parties to move beyond positional bargaining and the claim/counter-claim process. They help to identify which interests lie behind each side's position, and to jointly construct win-win solutions based on meeting those interests. However, not all situations can be resolved with win-win outcomes – at least not in the short term. Trade-off and compromise is often the necessary outcome.
Conflict management is a voluntary process. It offers quick procedures for dispute settlement, more control over solutions by those closest to the issues, and greater flexibility for crafting solutions than formal legal mechanisms do. When successful, they also save time and money. However, the ultimate mechanism for conflict resolution are the law and legal procedures. Thus, conflict management is a valuable tool, but ensuring good Legal Frameworks (A2) and Policies (A1) that are clear and have provisions for conflict is necessary.
This section looks at four intervention tools for dispute management: facilitation; mediation; fact finding; and arbitration. Which tool to select depends on the root causes of the conflict, as well as its type and location:
Facilitation is often used in situations involving multiple parties, issues and stakeholders, and where issues are unclear. Facilitation is conducted by an impartial individual or group who guides problem-solving meetings and procedures to help conflicting parties cooperatively find solutions. Facilitation works best in low to medium level conflicts. In such cases, it can be used for defining problems and goals, and for identifying personal and institutional support. Facilitation may be the first step towards a dispute resolution process.
Mediation is an interest-based negotiation process. The parties choose an acceptable mediator to guide them in designing the process and in 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 experts. Dispute review boards and panels are a special form of fact-finding. They provide parties in 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. It has proven useful in site-specific construction cases, complex issues such as ground water movement, and the clean-up of waste.
In arbitration, the parties submit arguments to an arbiter who acts as a judge, so they turn over the formation of a solution to an outside party. 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 solution when an agreement cannot be reached and parties would like to avoid legal proceeding. 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 than specific project related issues.
- Dispute panels are successful when 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 dispute clauses in agreements among parties who will be working with each other.
- Arbitration usually produces the least satisfactory results, since it is centred on arguments instead of finding joint solutions. Often, it is used as a last result before court proceedings.