The Importance of Mainstreaming Alternative Dispute Resolution (ADR) in Tenurial Conflict Resolution in Indonesia

A summary of ADR studies in Riau, West Sumatra, Jambi and South Sumatra, Indonesia, by Ahmad Zazali, Executive Director, Scale Up

An ongoing and heated debate is underway over the neglect of public access rights over forest resources in current modes of forest tenure in Indonesia. The role of local communities and their access to natural resources often overlap with the rights accorded to government/state enterprises and the private sector. The exploitation of forest resources has driven large companies to ignore the interests of these communities who live within and depend on forests for their livelihoods. This situation in turn has triggered the emergence of intra- and inter-community social conflict, conflict between communities and the government, as well as conflict between communities and companies.

Since the reform and the implementation of decentralisation policies, natural resource conflicts have become increasingly prevalent in Indonesia. The National Land Agency (BPN) reports that at least 7,491 natural resource conflicts have been dealt with by BPN and the Indonesian police. The Center for International Forestry Research (CIFOR) recorded 359 forest-related conflicts from January 1997 to June 2003. The highest frequency of conflicts occurred in 2000 with 153 recorded cases, or 43% of the total number of cases recorded over those 6 years. Conflicts in ​​Industrial Plantation Forests (HTI) were the highest at 39%, with conservation areas (including protected forests and national parks) representing 34% of conflict cases, and forest concessions (HPH) representing 27%.

However, the proliferation of forest-related conflicts is not being approached through innovative or alternative conflict resolution methods and the repressive approach and mechanisms of legal /formal forest peace-keeping remain the primary mode of conflict resolution. Since 2005, numerous cases have been brought to the Forestry Department’s Forestry Policy Quick Response Unit (SPORC) but the handling of disputes is inefficient, and court trials sometimes run counter to justice itself.

Forest resource conflicts result from the failure to manage the interests of all parties involved; the communities, the government and corporations. The escalation of natural resource conflicts is also associated with the choice of conflict resolution mechanisms that do not provide equitable and acceptable support to the parties involved. While dispute resolution through formal courts is often the choice of parties with strong material backing and the required networks of contacts, formal resolution mechanisms can put local communities at a serious disadvantage for the very same reasons. From the point of view of these communities, court procedures are often seen as overly time-consuming, prone to manipulation, long-winded, and inevitably resulting in a "win-lose" outcome.

On the other hand, the availability of alternative mechanisms outside the court has the potential to position both parties in dispute as active agents of dispute resolution, working towards a "win-win" outcome. However, the mechanism of alternative dispute resolution (ADR) outside the court is not yet fully understood, has not been applied systematically, and is not yet available as an institutionalised form of mediation. Lessons learned from ADR activities have not been systematically explored and unravelled as empirical evidence to strengthen the understanding and practice of ADR outside the court. To learn more about the various problems mentioned above, Scale Up carried out a study on the application of ADR in the Indonesian provinces of Riau, Jambi, South Sumatra and West Sumatra. Through interviews, observation and focused discussion, around 24 cases of ADR processes were documented, and certain key elements are examined below:

Natural Resource Conflicts It was found that natural resource conflicts always resulted from contestation of one or more parties over a certain resource. The root problems in the four provinces examined in this study include:

(1) the overlap of government policies and customary rights over natural resources and management;

(2) the lack of political space for the implementation of equitable governance of resources;

(3) the support that formal forest tenure gives to the development of industrial crops and plantation forestry; and

(4) the lack of effective community-based economic development programmes.

Confusion over and distortion of customary rights compounded with poor management of resources have also resulted from:

(1) the overlap of property rights over land and resources between communities and companies;

(2) communities being forced to relinquish their rights to natural resource management as a result of company operations;

(3) struggles over land between communities;

(4) the lack of compensation provided to local communities in return for their management of natural resources;

(5) land seizures once land permits have been issued for plantations; and

(6) the limited arable land left available for communities.

These factors are the underlying reasons for the occurrence of conflicts between communities themselves, communities and corporations, and communities and the government.

Natural resource conflicts in the four provinces studied are escalating in intensity. In Riau, for example, conflict has been on the rise for the last four years. In 2007, 35 cases of natural resource conflict were reported. In 2008, the figure had risen to 96 cases. In 2009, 45 cases were reported and 44 in 2010. In West Sumatra, 24 cases were identified from 1997 to 2010 involving communities, corporations and the government. By 2010 in Jambi, 46 land conflicts had been reported in the plantation sector alone. 31 conflicts occurred between communities and companies, whilst forestry conflicts numbered 30 cases. The escalation of conflict is testified to by the growing range of parties involved, including communities, corporations, the government and non-governmental organisations.

The escalation and intensification of natural resource conflict is also influenced by the perspectives of the parties in conflict, as identified in Scale Up’s study. On the one hand, the state (government) is of the view that natural resource management must be adopted through macro-management strategies/systems with the support of large-scale and powerful technologies in order to create significant economic contributions. According to this point of view, community participation should be directed towards the support of these macro-objectives advocated by the state. Any actions which do not serve this end are seen as hindering suchobjectives.

In this perspective, corporations backed by strong capital and technology are seen as conducive to rapid and efficient macro-development. On the other hand, community and local activists such as academics and NGOs hold the view that the management of natural resources cannot be performed without the participation of society or without recognition of their own knowledge and use of these resources. This perspective respects, accommodates and honours the rights of people to natural resources and society's role in their management. Management schemes that protect and ensure the rights of communities are therefore necessary to achieve this end.

The escalation of natural resource conflict leads to negative outcomes for the parties involved and the resource in question, as the disputed land resources become neglected and are no longer managed properly. Parties with established networks, ease of mobility, capital and authority are favoured, whilst local communities suffer from social conflict and the violation of their rights. Acts of violence have tended to cause casualties and damage to both parties involved. Conflict is thus no longer solely associated with the struggle for land and rights to natural resources alone, but also with the destruction of human lives and social relations.

Understanding and institutionalising ADR Scale Up’s study showed that ADR mechanisms were employed in numerous conflict resolution cases, and were based on the ideas of iterative deliberation and negotiation-based consensus-seeking. While the communities believe that ADR mechanisms can effectively rebuild harmonious relationships between parties in conflict, certain NGO activists and government officials perceive them as out-dated and archaic.

Communities are often hesitant or refuse to resort to formal judicial mechanisms such as the courts as judicial procedures require significant resources and knowledge that communities feel they frequently lack. Scale Up’s study showed that where formal court procedures failed, the parties involved sometimes sought alternative means of settlement. The fact that formal courts are often the first option more often reflects the lack of understanding that people have of ADR, rather than a genuine preference for the formal mechanism.

However, poor implementation of ADR can also fail to generate solutions to conflict. Qualified mediators, who fully understand and apply their mediation skills, may be lacking. Mediators from NGO backgrounds often find themselves entangled in the dilemma of opting for advocacy or mediation. Government agencies acting as mediators may not be aware of the type or function of mediation appropriate for each case of conflict. As a result, the application of the principles and stages of mediation remains weak. The principle most often overlooked is that of the neutrality of the mediator. The mediator must be a person who can be trusted, one that has been agreed to and appointed by both parties in dispute. The abandonment of the principle of neutrality inevitably leads to poor conflict resolution, or sometimes even the worsening of conflict.

Scale Up’s analysis of the cases of successful application of ADR shows that the forces that drive the success of mediation stem from the appointment of a mediator who is chosen by and acceptable to both parties. In successful cases, the mediation process implements and oversees the management of mediation agreements generated, and involves other concerned parties. In the case of disputes between communities, the success of ADR is mainly due to the motivation of the community to resolve the dispute through a process of deliberation. In the case of disputes between communities and companies, successful ADR results from the company's commitment and financial support to the mediation process.

The benefits of ADR This section draws from the important points made above in order to make recommendations for the mainstreaming of ADR. It is argued that this can be achieved through strengthening commitment towards conflict resolution, strengthening the capacity and skills of mediators, overcoming the dualism of choice between “winning” and “losing” in favour of a “win-win” outcome, ensuring the validity of the results of ADR processes, and strengthening the juridical basis of ADR outcomes. Strengthening commitment: A variety of commitments and past experiences affect the interests of the parties in conflict. Communities are influenced in their commitment by their negative experiences with corporations and the government. The government's degree of commitment tends to grow over time but remains unclear in terms of its role and function. The company's commitment is generally calculated based on profit-making objectives. The commitment of NGOs in implementing ADR is undermined by their dilemma over whether they should act as facilitators, supporters and/or advocators in ADR processes.

The capacity of the mediator: In most of the successful ADR processes, the parties reached an agreement through a third party mediator. However, the mediation process frequently stalled, and this was associated with the lack of capacity and skills of the mediator.  Problems of capacity (in terms of knowledge and skills) must be approached through training and mentoring on mediation.

Dual mechanisms: Another aspect worth stressing is the binary choice involved in dispute resolution; that of the formal courts and that of ADR. In general, conflict resolution achieved through formal court procedures does not produce satisfactory results. In some cases, both the courts and alternative paths of conflict resolution are simultaneously adopted. Where there is confusion or ambiguity over which course of action to take, the commitment and motivation of the parties involved must be strengthened and they must be made to understand and be ready to accept the consequences of their choice of dispute resolution mechanism. An explanation of the incentives for and benefits of ADR should be provided at an early stage.

The validity of results: Scale Up’s study questions the way in which parties assess and verify the validity of ADR. Does the agreement between the parties in conflict, achieved through mediators, have legal force? How can cases of denial of the agreement by one party be addressed? What is the validity of an agreement mediated by a mediator who does not have the appropriate qualifications? What is the status of the resulting agreement if, over the course of time, one of the parties chooses to settle through court? How can agreements be legalised by judicial institutions and government authorities? Questions relating to the validity of ADR-produced agreements confirm the importance of more systematic efforts to provide support for mediation (by government and NGOs) without the risk that such agreements cannot be verified or guaranteed.

Juridical foundations: The juridical foundation for ADR is to be found in Law Number 30 (1999) on Arbitration and Alternative Dispute Resolution. This juridical foundation needs to be communicated to the parties involved in order to convince them of the merit of this process. Information about certified mediators and the support of the Indonesian National Human Rights Commission (Komnas HAM) should also be communicated to the parties in conflict. Furthermore, the involvement of authorities such as the government and the judiciary in ADR processes must be open and transparent, so that all parties involved in ADR remain positive about choosing ADR as a mechanism for resolving their conflicts.

Sources cited:

1. Maring, Prudensius et al 2011, Study on the understanding and practice of Alternative Dispute Resolution through the institutional mediation of conflicts over natural resources in the provinces of Riau, Jambi, South Sumatra and West Sumatera, Pekanbaru, Scale Up.
2.  Zazali, Ahmad 2011, Natural Resources Conflict Resolution through Mediation Initiatives, Pekanbaru, Scale Up. (In Bahasa Indonesia only)