Assuming that conflict, or the potential for conflict, has been identified, and conventional stakeholder engagement activities have been unable to prevent it, there is a wide range of possible approaches to respond, which can be placed on a continuum, from negotiation to violence, as illustrated in Figure 4J.9. The further to the right-hand side of the continuum, the greater the potential for outcomes to be based on coercion or force, and for the outcomes to reflect one side ‘winning’ and the other ‘losing’ – these represent unacceptable and unsustainable outcomes and such approaches should therefore be avoided.

Click to get a closer look

Zoom out

Figure 4J.9 Continuum of approaches to conflict

The approaches of negotiation, facilitation, mediation, arbitration and adjudication are detailed in Table 4J.2. Forced decision-making is not considered because, as noted this is not an appropriate response to adopt as it does not align with our Purpose and values as an organisation and does not address causes of conflict. The table sets out a range of criteria for consideration when deciding on which conflict-management approach is most appropriate, including the desired result, whether the process is voluntary or involuntary, the role of third parties, and advantages and disadvantages of the approach.² All conflict-management approaches have pros and cons.

Any approach to conflict management should be based on a careful evaluation of the different options and should be selected in consultation with the SPMC, BU and with advice from an external expert, as appropriate. The implementation of the selected approach will involve key internal stakeholders, such as the SPMC and, in some cases, Government Relations, Security, and the Legal function.

Table 4J.3 Comparative table of approaches to conflict

	Negotiation	Facilitation	Mediation	Arbitration	Adjudication (litigation)
Overview	In negotiation, parties to a conflict meet to reach a mutually acceptable solution. There is no facilitation or mediation by an external party: each party represents its own interest.	In facilitation, an external party works with the parties to the conflict to ensure that there is a constructive dialogue on the process of interaction and the substantive issues. This approach is often used when there are multiple parties and where issues are unclear. Facilitators create the conditions for a free, open and orderly exchange between the parties. The facilitator focuses on process and does not volunteer views on substance, unless requested. As well as being used to resolve conflicts, facilitation can be used as a first step to identify an appropriate dispute-resolution process.	Mediation is a process of addressing conflict in which an external party oversees the negotiation between two (or more) parties to the conflict. Together, the parties to the conflict choose a mediator to guide them in designing a process for engagement and reaching an agreement on mutually acceptable solutions. The mediator seeks to establish a conducive environment for information sharing, addressing underlying problems and expressing emotions. It is more formal than facilitation. While parties often share the costs of mediation, this is not always the case. Mediation is useful when the parties have reached an impasse.	Arbitration is a process in which a neutral, independent external party or panel meets with the parties in conflict, hears presentations from each side and makes a finding on the dispute. It is a less formal alternative to litigation. The arbitrator’s decision may be binding or not, depending on prior agreement between the parties. The parties choose the arbitrator through consensus and the parties may set the rules that govern the process.	Adjudication involves taking recourse through the courts. In a legal proceeding, the parties to a dispute are heard by a court of law that decides upon the case based on the laws in place in the jurisdiction. Adjudication can be unpredictable, intimidating for stakeholders, lengthy and expensive, and stakeholders may also regard the law as unfair. It should therefore usually be used as a last resort, although Anglo American must always respect the rights of stakeholders to seek legal redress. While it may at times not be possible, the initiation of adjudication should not preclude attempts at ongoing engagement between the parties, with a view to maintaining dialogue, seeking resolution and consequently avoiding court proceedings.
Result sought	Mutually acceptable agreement	Mutually agreed outcome	Mutually acceptable agreement	Arbitration award	Court judgment
Voluntary/Involuntary	Voluntary	Voluntary	Voluntary	Voluntary	Involuntary
Binding/non-binding	Agreement enforceable as a contract, if opted for by the parties	Non-binding	Agreement enforceable as a contract, if opted for by the parties	Binding or non-binding	Binding
Private/public	Private	Private	Private	Private	Public
Participants	Parties only	Facilitator and parties	Mediator and parties	Arbitrator and parties	Judge and parties
Third-party Involvement	Parties communicate directly	Facilitator, selected by the parties, facilitates the process	Mediator, selected by parties, facilitates the process	Arbitrator, agreed on and appointed by the parties, conducts the arbitration process	Lawyers, judge
Structure	Usually informal and unstructured Non-adversarial	Flexible Mutually agreed ground rules Non-adversarial	Flexible Usually informal and unstructured Non-adversarial	More formal than mediation but less formal than adjudication Procedural rules and substantive laws may be set by parties	Formal Structured by pre-determined rules Adversarial
Advantages	Can be quicker and cheaper than adjudication or legal solution Parties retain control over process and outcome Parties work together to find win-win solutions Decisions can be tailored to needs of parties Agreements more likely to be implemented and future problems solved in non-adversarial way	Can be quicker and cheaper than adjudication or legal solution Allows for a wide range of issues to be dealt with quickly Parties work to understand issues, generate options and explore implications Parties identify way forward Parties build improved relationships	Can be quicker and cheaper than adjudication or legal solution Enables creative solutions to be found Parties retain control over process and outcome Parties work together to find win-win solutions Substantive issues of importance to parties can be addressed Decisions can be tailored to needs of parties Parties can directly contribute expert understanding and expertise Results in greater likelihood of implementation of agreement and improved relationships	Can be quicker and cheaper than adjudication or legal solution Parties can tailor process to suit their needs Parties can choose subject-matter experts as arbitrators	Application of court and legal rules may help to address power imbalances May be only option where a root cause is related to lack of clarity in legal rights
Disadvantages	This method may not be suitable for complex cases Failure to implement agreement may necessitate enforcement through courts (where agreement is enforceable as a contract) or may require another conflict approach to be taken	This process is non-binding Facilitation does not result in contractual agreement. Should a formal contractual agreement be required, a process of negotiation would need to follow the outcome of a facilitated process	Power imbalances may be enhanced Agreement may not be reached Failure to implement agreement may require enforcement through courts (where agreement is enforceable as a contract) or may require another conflict approach to be taken	Parties relinquish control over final decision Success depends on competence of arbitrators Depending on the legal regime applying, there may be limited opportunity to appeal or seek a formal review of an arbitration award	Slow and expensive Court processes can be intimidating and hard to understand for many stakeholders Initial outcomes of legal proceedings may result in appeals or further litigation Decisions are restricted to narrow legal parameters and may not include guidance on matters such as future constructive relationships between the parties Parties relinquish control over process and decision Inappropriate for disputes involving broader social issues or matters of fairness not reflected in law

The process of negotiating, facilitating and/ or mediating a successful outcome to conflict is based on key preconditions. The parties need:

• to conduct negotiations in good faith (see Box 4J.2)
• a clear commitment to reach agreement
• to believe that negotiation, facilitation and/ or mediation is the best response to the state of conflict
• a transparent mandate from a clearly identified constituency
• to recognise their opposing party as a negotiating partner
• to commit to mutually agreed ground rules
• to acknowledge that there are legitimate differences and commonalities between the conflicting parties
• capacity to fulfil the terms of the agreement reached.

The following questions can be used to evaluate whether the agreement reached is successful:

• does the agreement satisfy the legitimate interests of the parties as much as possible and resolve conflicting interests in a fair and just manner?
• does the agreement advance the relationships between the parties?
• can the parties implement the agreement?
• do all the parties to the agreement own it?
• do the parties believe that the agreement was not imposed on them and that they have not been manipulated into accepting it?
• do the broader constituencies who the parties represent find the agreement acceptable?
• is the agreement coherent, unambiguous and implementable within an acceptable period?
• is there provision for the agreement to be amended and improved should it be found to be unsatisfactory?

Box 4J.2 ‒ Negotiating in good faith

The term good-faith negotiation is widely used as a principle to guide engagement with Indigenous Peoples (see Section 4I). It is also used in the practice of mediation and conflict management. The following principles guide the approach to negotiating in good faith:

• involve legitimate representatives
• ensure willing engagement, free from coercion or intimidation
• ensure mutual respect and sensitivity to cultural and other differences
• parties respect each other’s decision-making processes, and constraints
• use participatory approaches
• conduct joint exploration of key issues of importance
• provide flexibility and consideration of multiple options
• be willing to compromise
• provide information needed for informed negotiation
• agree mutually acceptable procedures for negotiation
• meet at reasonable times and frequency
• provide sufficient time for decision-making
• pursue a formal and documented agreement.

¹ The continuum draws on Cap-Net UNDP (2008) Conflict Resolution and Negotiation Skills for Integrated Water Resource Management, Training Manual, Available at: https://www.gwp.org/globalassets/global/toolbox/references/conflict-resolution-and-negotiation-skills-from-iwrm-capnet-2008.pdf [Accessed 17 August 2020]

² The table draws from Cap-Net UNDP, (2008) Conflict Resolution and Negotiation Skills for Integrated Water Resource Management, Training Manual, Available at: https://www.gwp.org/globalassets/global/toolbox/references/conflict-resolution-and-negotiation-skills-from-iwrm-capnet-2008.pdf [Accessed 17 August 2020]