Joint Fact-Finding

Adversaries in Need of Information

Joint fact-finding is meant to be a strategy for resolving factual disputes. In short, employing joint fact-finding means addressing a factual dispute by forming a single fact-finding team comprised of experts and decision-makers representing both sides of a conflict. The team works together in an effort to come to agreement regarding relevant facts, often in the form of scientific, technical, or historical claims. In this respect, joint fact-finding is really mediation within mediation -- an attempt to resolve a sub-conflict over facts as part of an effort to deal with the overall conflict. While joint fact-finding is not always a viable or appropriate option, a strong case can be made for it being the preferred method for settling a factual dispute. This can be seen by considering both how joint fact-finding works and what can be expected of a successful joint fact-finding venture. Often, in carrying out a joint fact-finding endeavor, the benefits go beyond reaching consensus on the facts.

How Joint Fact-Finding Works

There are several core ideas on which joint fact-finding rests. The most obvious is:

Experts, decision makers, and key stakeholders from opposing sides work together.

Basically, a fact-finding committee is formed from members of each of the conflict parties. They are given the task of working together to discuss, debate, and research the facts. This kind of forum will result in a level of interaction that would not likely occur under other circumstances. A stage is set for open communication. This can go a long way in resolving a factual dispute, as factual disputes (like many disputes in general) can be the result of faulty communication. In addition to providing an opportunity for greatly improved communication, the act of agreeing to a joint fact-finding venture is a general shift away from self-serving fact-finding strategies such as "adversary science." Joint fact-finding, therefore, addresses the problem of contradictory experts by getting the experts together as a team to respond directly to research, discuss where evidence is soft or misinterpreted, and propose new.

A second principle is:

Information and resources will be shared.

This is a shift from the common practice of withholding information as a tactical move. Under joint fact-finding, key pieces of evidence become available to all. Making information that formerly might have been kept secret available means making it increasingly difficult for the parties to slant findings in their own favor. Another advantage is that experts can gain access to each other's unique expertise. The result is a much more fair, objective, and balanced inquiry into the facts.

The sharing of other resources can have a significant impact also. Facts, especially those that are scientifically or technically complex, are often only as good as the resources used to discover them. It may be the case that your "adversary" has access to resources (in the form of experts, funds, information, or equipment) that you lack, and vice versa. For example, environmental groups sometimes employ leading scientists and academics, yet academic departments face fairly serious budget constraints, as do many environmental organizations. On the other hand, large industrial companies usually have much larger budgets, allowing them to acquire the latest scientific equipment and experts of their own. If such groups choose to work together on a specific factual inquiry, they gain access to previously unavailable expertise and equipment.

In this respect, the whole may turn out to be greater than the sum of the parts or, more specifically, such a sharing of resources holds possibilities beyond reaching agreement on key conflict facts. When diverse knowledge and resources are put together in a "think tank" environment such as joint fact-finding, there is a possibility of achieving a greater understanding of underlying scientific/technical knowledge as a whole. The prospect of actually furthering the relevant fields by sharing resources can provide additional motivation for experts under such conditions to set aside adversarial techniques and work together. This is in addition to the potential benefit of discovering unrecognized opportunities for balancing competing interests.

Yet a joint fact-finding committee is not comprised solely of technical experts. Other key conflict figures must be included so as to ensure that the experts focus on the right questions, and are aware of relevant concerns and goals. Considering the different levels of expertise and knowledge present, technical information will need to be presented so that the non-expert may understand it. Factual communication therefore, becomes highly important. This allows non-experts to offer possibly fresh insights, forcing experts to examine a set of problems in a new way. In addition, the quality of decision-making tends to improve as decision makers become more familiar with relevant scientific/technical underpinnings.

It is also necessary to ensure that the diverse resources and people involved in joint fact-finding are unified in their attempt to reach a specific goal. A common way to do this is to establish that:

The end result is a single text embodying the sum of the joint efforts.[1]

Scientific, academic, and technical literature is very likely available regarding the factual issues under concern, so finding information is not usually a significant problem -- agreeing on such information is. Therefore, instead of having the fact-finding efforts mired in the problems inherent in trying to agree on preexisting reference material, the group is given the task of forming a new document. The new document will represent the total results of the group, including not just where consensus was achieved but also where factual issues remain in disagreement or where there is irreducible uncertainty. This kind of "from the ground up" approach, in addition to giving the group a definite goal, allows the group to focus their efforts on the facts instead of debating on "who-said-what," plausibly allowing for new solutions to current factual problems.

Potential Gains and Possible Concerns

There is much to be gained from employing the techniques of joint fact-finding. The unique circumstances of joint fact-finding provide an opportunity for scientific and technical issues to be addressed, for non-experts to learn a great deal about technical issues, for experts to better understand the non-technical factors. The result is the creation of superior agreements. Since each conflict party has representation in the fact-finding committee, subsequent agreements are more likely to be trusted and respected by each side. In addition, the creative environment often develops new kinds of solutions and new ways of solving problems. This tends to broaden the fact-finding inquiry and provide a platform for agreements that would not otherwise have been imagined.

Ultimately, though, the greatest benefit joint fact-finding can achieve is an improved relationship between the conflicting parties. When a group gathers together to achieve a common goal, members become more familiar. Trust is improved. The other side becomes more human, their concerns more readily validated. The act of deciding to work with individuals formerly considered "the enemy" is really an act of good faith, one that fosters mutual respect and understanding.

Conflicting sides are not usually eager to have close contact with each other. Conflicts involve any combination of passionate attachment to beliefs, feelings of ill will toward the opposition, mutual mistrust, and escalating hostilities. Intractable conflicts generally involve parties that view working side-by-side with "the enemy" as unpalatable at best, inconceivable at worst. Yet an effort to determine relevant facts is a different paradigm. Facts are generally regarded as objective, discoverable via effort and resources. Facts hold no emotion or passion, they simply are so, and each side thinks that their facts are right. Fact-finding is an opportunity, even a challenge, to prove that one has one's facts straight. So a mediator is much more likely to get conflicting groups to work together constructively on fact-finding than on more passionate topics of values, interests, or moral blame. In this respect, fact-finding provides a relatively neutral set of topics that conflicting sides can address, and in doing so they gain the benefits of increased familiarity and a better working relationship.

Yet joint fact-finding is not appropriate for every conflict scenario.[2] Where there are drastic power differentials, extreme mistrust or hatred of the other side, or volatile social/political concerns, joint fact-finding may be impossible. The process must involve a relatively even playing field so that one side cannot dominate the fact-finding efforts.[3] And if the sides are extremely far-removed from working together amenably, attempting close contact between them may do more harm than good. So although joint fact-finding holds the potential for great benefits both in terms of agreeing on facts as well as improving conflict relationships generally, it must be executed well and attempted in the right context.

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[1] This is especially emphasized by Scott T. McCreary, John K. Gamman, and Bennet Brooks in Refining and Testing Joint Fact-Finding for Environmental Dispute Resolution: Ten Years of Success.

[2] John R. Ehrmann and Barbara L. Stinson write more extensively on how to decide when joint fact-finding can be done in Joint Fact-Finding and the Use of Technical Experts.

[3] Where there is a power or resource imbalance, there may be ways to level the playing field so as to make joint fact-finding more plausible.

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