Land Tenure Center Newsletter
Number 83, Spring 2002, p. 9-10
Rising populations, increasing land values, disappearing agricultural land—there are many reasons why conflict is becoming a common issue in land tenure studies. The authors below examine how Norway’s courts attempt to mediate land disputes so that all parties benefit.
In this article we report from a study that examines mediation activities in the Norwegian Land Consolidation Court.(1) Mediation implies that a third party facilitates the development of a mutual agreement among the contending parties. Mediation has many potentially attractive features that complement the use of planning techniques and court authority in land consolidation. Mediation increases the involvement of those affected by the decision, allows for creative solutions based on the underlying interests of the parties, and may strengthen the relationship between the parties.
Whether and when mediation works in land disputes is the focus here. We explore how mediation can be a supplement and an alternative to “rational” planning procedures and court trials in settling land disputes. We study the effects of mediation by examining how consolidation plans that are modified and developed through mediation become more acceptable to the parties. Furthermore, we explore how judges vary their mediation efforts with case characteristics (integrative potential, conflict level, size, and number of parties). Implications are discussed.
The land consolidation process has the following main stages. An application for land consolidation is received by the court. The initiative may come from farmers or be a result of external changes (e.g., the building of roads or railroads that divide holdings into inefficient units). When the case is accepted, the court starts a problem-identification process. Existing boundaries are clarified, the consolidation area is mapped out, and a valuation is made of anything that is subject to the exchange. The different land parcels are then pooled or put together. The judge, with assistants, creates a plan where the same numbers of holdings emerge but in new physical and legally recognizable shapes.
The plan is presented to the parties for comments. Alterations may be made if the court finds them right and proper. The formal adoption of the plan is made by court decision. In the Land Consolidation Act, it is explicitly stated that no farmer should lose in the exchange process. Thus, while land consolidation often is triggered by one farmer’s desire for a more efficient holding, the basic criterion for exchange is Pareto improvements: some or all should gain from the plan, none should become worse off. The judge uses planning competency to identify the problems and to generate a plan, and uses court authority to make decisions. How and to what extent the judge seeks consensus through a mediation process is up to the individual judge. Do they mediate? Does it work? When do they choose to mediate?
The empirical study had two major parts: an examination of cases handled by the courts in 1996 and in-depth interviews with judges regarding their mediation behavior. Case examination was based on archival data and questionnaires. We mailed surveys to all judges in the court. In the study we examined both boundary disputes and planning disputes. The following analysis is primarily based on 107 planning disputes and on the archival and survey data. In the questionnaire we measured objections to the initial plan, objections to the final plan, time spent mediating, the number of drafts, and conflict level. The archival case data provided us with information on case size (the size of land area and boundary length), the number of parties in the case, and case outcome.
The table (right)
shows means, standard deviations, and correlations for the variables. The three
research questions asked of the judges were: “Do they mediate?” “Does
it work?” and “When do they increase their mediation efforts?”
First, the results show that the judges spend considerable time mediating, on
average more than four hours in planning disputes. The validity of this result
was supported by correlations between mediation time and the number of times
new planning drafts were presented (r = .34, p < .001) and
by days used on the case (r = .35, p < .001) (data not shown
in table).
The effects of mediation on consensus-building can be found in changes in objections to plans. In mediating planning disputes, the judge drafts an initial plan and uses the mediation process to adjust the plan to the needs of the parties. This is fairly similar to the one-text procedure for mediation. The result shows that the judge had success in mediating planning disputes. The parties had considerably fewer objections to the final plan presented (M = 2.16, SD = 1.17), than to the initial plan proposed (M = 3.25, SD = .97). The difference is highly significant (t = 8.68, p > .001). Thus, when the final decision is made in planning disputes after mediation efforts, the tension has been reduced through the collaborative mediation process.
The results also show that judges vary mediation efforts across cases. The table shows that judges mediate significantly more when conflict level increases (r = .36, p < .001), when the area is large (r = .22, p < .05), and when there are many parties (people complexity) (r = .26, p < .01). Furthermore, the judges spent considerable more time mediating planning disputes (M = 3.95, SD = 1.10) than boundary disputes (M = 2.82, SD = 1.08; data not shown in table) (t = 7.67, p > .001).
First, the results show that the judges spend considerable time mediating planning disputes. They do so even if they have court authority and planning skill. Furthermore, it is up to the individual judge to decide whether the case should be mediated. Second, the results show that mediation often is effective. The parties had considerably fewer objections to the final plan presented than to the initial plan proposed. Mediation reduces backlog, and the mediated decisions often are perceived as more satisfying than a judicial decree. Mediated settlement results in reduced costs compared to a full trial, creates the potential for better relationships between disputing parties, and gives the parties greater control over the case. Third, the results show that the judges discriminate across cases in terms of mediation efforts. In the interviews the 23 judges gave consistent and rational answers for why they mediated. They mediated because they were convinced that the parties often would be better off with a consensus-oriented settlement than with a court decision. In particular they focused on the future relationship between the parties. There are, however, considerable variations in mediation behavior among the judges. The outcome of a land consolidation process depends largely on the behavior of the judge during the proceedings. An obvious practical implication is that guidelines for mediation should be developed, and that mediation/negotiation training is needed.
(1)See: J.K. Rognes and P.K. Sky, Mediation in the Norwegian Land Consolidation Courts (Working Paper No. 14, Madison, 1998.) Contact the corresponding author, Sky, for information about ongoing work.
Dr. Rognes is a professor at the Norwegian
School of Economics and Business Administration.
Dr. Sky is a professor at the Agricultural University of Norway and also a judge
in the Nord- and Midhordland land consolidation courts.
Copyright © 2002
by Land Tenure Center and Board of Regents, University of Wisconsin. All rights
reserved.
Readers may make verbatim copies of this document for noncommercial purposes
by any means, provided that this copyright notice appears on all such copies.
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