Introduction

This module offers a framework TNC staff and IPLCsIndigenous Peoples and Local Communities can use in two scenarios:

    1. setting conflict resolution procedures and expectations at the beginning of a project
    2. building these procedures into existing IPLC relationships

 
This module is not just about risk management or preparing for worst-case scenarios. It reflects TNC’s support for international law and standards on Indigenous rights, where the right to grievance procedures and remedy is well-established.

Trusted conflict resolution procedures are necessary because they can throw light on issues or problems that might otherwise undermine an initiative’s success. If concerns linger, trust and support could waver. Plus, conflict resolution, just like Free, Prior & Informed Consent, is a relationship-building tool as much as it is a risk-management tool.

Some degree of conflict between collaborators on initiatives is unavoidable. But when conflicts are addressed openly, quickly and respectfully, they are opportunities for collaborators to learn about each other, build trust and recommit to a shared future. Conflicts are also an opportunity for TNC to demonstrate its commitment to our Values, Code of Conduct and the Principles and Safeguards set forth in this guide.

Early on, well before a conflict arises, TNC staff and IPLCs should discuss how disputes will be handled and document their shared understanding in a Conflict Resolution Plan. Different situations will have different conflict resolution needs; the menu-based approach recommended in this Guide includes three mechanisms:

Conflict Resolution Mechanisms

Dialogue:
Respectful, mutual listening, quick on the heels of arising conflict, inclusive of all views;

Mediation:
A structured dialogue process, relying on trusted individuals or institutions; and

TNC’s Ethics & Compliance Process:
A grievance procedure administered by TNC’s Ethics & Compliance Office for alleged violations of our Code of Conduct or Principles and Safeguards.

In most cases, conflicts can be resolved through Dialogue or Mediation. The Ethics & Compliance Process is available to IPLCs for two reasons: (1) to affirm that TNC staff are held accountable for their actions; (2) to provide a different, perhaps deeper way to talk with TNC and get resources to investigate and resolve conflicts outside of the immediate project team.

In some cases, the three mechanisms will follow a logical progression and will be pursued in succession. You might move from Dialogue to Mediation to solve a conflict. But sequential exhaustion isn’t necessary; the IPLC can go straight to TNC’s Ethics & Compliance Process if circumstances warrant it. The three mechanisms are a menu of options that are available at any time.

Dialogue and Mediation mechanisms should be adapted to the standards and expectations of the IPLC, should include their methodologies and practices, and should be consistent with the Principles and Safeguards of the Guide. The Conflict Resolution Plan should be continuously revisited to keep it up-to-date with expectations, factual circumstances and learned experience.

Guidance is offered below for implementing the conflict resolution process in accordance with the Principles and Safeguards. TNC staff can also review the dilemmas presented in the Wenland hypothetical case study in this module.

Principles and Safeguards

The Introduction includes a discussion of all the Principles and Safeguards that apply to equitable partnership. Four are particularly important for conflict resolution:

Conflict Resolution Principles and Safeguards

Overarching Good Faith:
Assuming good intentions is perhaps the most important principle in resolving conflicts with IPLCs. Being honest, respectful and humble and demonstrating Integrity Beyond Reproach is critical.

Self-Determination:
A collaborative conflict resolution process builds trust, enhances dialogue and embodies TNC’s commitment to supporting Indigenous Self-Determination and leadership on conservation outcomes.

Accountability:
Conflict resolution mechanisms are accountability mechanisms. Accountability isn’t something to avoid or fear; it should be embraced as a chance to learn and improve. TNC won’t get everything right on the first try. A commitment to accountability and responsibility can turn mistakes and misunderstandings into a platform for more solid partnerships.

Equity & Inclusion:
Conflict resolution procedures all over the world are marred by exclusionary and discriminatory practices. TNC’s conflict resolution practice must demonstrate a thorough understanding of the impacts and legacies of the past. Only by acknowledging these injustices can we provide better access and resolve disputes in a more equitable and inclusive way.

Guidance

A good conflict resolution process keeps dialogue going, ensures transparency, and promotes equitable relationships between partners. The process need not be prescriptive or an administrative burden. Conflict resolution procedures demonstrate that TNC’s work aligns with our Values, Code of Conduct and international law and standards. A mutually agreeable conflict resolution process is one of the most important ways TNC can respect and support the human rights of Indigenous Peoples and local communities.

Conflict Resolution as a Human Right

Having a reliable mechanism to resolve conflicts isn’t just a risk-management tool or a Plan B if things go wrong. It is a human right.

IPLCs have faced generations of abuse, systemic oppression, and denial of rights. The harm is often compounded by institutional failure to act justly, be accountable, or listen to community concerns. Modern law elevates the right to grievance mechanisms, remedies and accountability measures to the status of a substantive right under international law.

United Nations Declaration on the Rights of Indigenous Peoples, Article 40

Indigenous Peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the Indigenous Peoples concerned and international human rights.

The right to procedural justice is also found in TNC’s Conservation by Design 2.0 Guidance Document. The commitment to conflict resolution emerges from the first of four key advances in CbD 2.0—People in Conservation—which states, “In all our work, we must ensure that vulnerable, disadvantaged, and marginalized people and communities (e.g., low-income communities, Indigenous Peoples, communities dependent on the local environment, racial and ethnic minority groups, women, children, the elderly) are not harmed and we incorporate social safeguards into project planning and implementation.”

Two social safeguard questions are especially relevant:

  • Does the project comply with local and national laws, international treaties and conventions, and other relevant rules?
  • Is there an accountability system that is transparent and accessible for primary stakeholders to share concerns or file complaints?[1]

 
CbD 2.0 also recommends that teams working with Indigenous Peoples provide access to redress through grievance mechanisms that are accessible, predictable, transparent, effective, rights-based, respectful, appropriate, and responsive.[2]

Similar commitments to accountability through grievance and conflict resolution are found in leading international frameworks and institutions, such as the International Finance Corporation, the World Bank, the United Nations Environment Programme, the Food and Agriculture Organization of the United Nations, the United Nations Development Programme, the United Nations Guiding Principles on Business and Human Rights, and peer conservation organizations.[3]

Conflict Resolution as a Practical Tool

Conflict resolution procedures shouldn’t be a management burden. Done right, such procedures may allow TNC and the IPLC to focus more time and energy on the initiative itself. In the best-case scenario, everyone emerges from a dispute with a stronger sense of trust and commitment and feels that obstacles have been addressed quickly and overcome fairly.

Of course, not all conflicts will meet these ideals. But a well-framed Conflict Resolution Plan is flexible enough to address many different circumstances. The menu approach described below recommends intuitive, collaborative methods (dialogue), as well as more structured mechanisms (mediation). In situations where there’s less trust at the start, the existence of procedural guarantees might help (TNC’s Ethics and Compliance Process).

Step One: Develop a Conflict Resolution Plan

A Conflict Resolution Plan is an important part of how TNC respects IPLC rights, demonstrates accountability, and builds and sustains equitable relationships. The Conflict Resolution Plan is foundational to every initiative and should be included in the initial conversations recommended in the Learning & Early Discussions Module. Deliberation and agreement on a plan should be part of any process described in the FPIC Module.

TNC staff working on existing initiatives should assess past experience with conflict resolution. Then they should look for opportunities to raise the issue mid-stream during a project. TNC staff should take care to explain that this doesn’t mean they’re anticipating conflicts. Rather, it’s being brought up as part of an evolving understanding of best practice.

To craft a plan, TNC staff can draw on their own experience, the experience of other TNC teams, and the guidance and resources in this module. Staff should also revisit the Human Rights Impact Assessment and FPIC process. The Conflict Resolution Plan should provide a clear path to addressing any concerns identified in these assessments and processes. IPLCs might have existing procedures and preferences that should be explored together and incorporated.

A discussion about conflict will help TNC and the IPLC learn about one another’s values, expectations, and past experiences with disputes, which come up in any collaborative endeavor. But the deliberation process and the preparation of a plan need not be burdensome. If TNC and the IPLC are in agreement, a plan might simply describe the menu of options below and how they’re accessed. It might include specifics, such as the names of trusted mediators agreed upon in advance.

TNC prefers to resolve conflicts without taking legal action. Still, there may be circumstances that result in litigation. If a lawsuit seems possible, consult the Use of Outside Counsel and Litigation SOP and contact TNC’s legal team.

Dialogue

The best way to prevent misunderstandings from escalating to complaints is to enter into each relationship from a place of humble learning, respect and honesty. Keeping communication lines open enables TNC to see issues bubbling up and address them head-on. When trust and understanding are cultivated at the beginning of an initiative, problems are more likely to be resolved through discussion at the team level.

To learn and practice dialogue skills, see the Diversity Learning page on CONNECT and the Intentional Listening Resources and Indigenous Dialogue and Storytelling resources listed in the Tips & Tools section of this module. The Learning & Early Discussions Module also discusses relationship-building in detail.

Open dialogue should be part of any IPLC collaboration. But disputes can emerge from difficult circumstances or conflicting interests—and even parties accustomed to open communication may go to great lengths to avoid discussing these hard topics. The dialogue promoted in this guide is an intentional round of dialogue designed to address a specific conflict.

This means the logistics of the dialogue must be considered ahead of time:

  • Are all the affected parties available to participate?
  • Are parties informed of the subject matter ahead of time so they can prepare?
  • Are we respecting IPLC timescales, needs and preferences?
  • Are necessary learning resources available?
  • Do the circumstances of the dialogue guarantee the physical and emotional safety of participants?

 
Attention to these parameters is important, but it doesn’t need to signal formality. A dialogue characterized by informality and friendly relationships between working partners is a good recipe for success. Additionally, the principles of Overarching Good Faith and Collaborative Relationships require TNC to enter into dialogue prepared to listen and to take action on concerns. Otherwise, dialogue could end up generating cynicism or be dismissed as yet more talk.

Mediation

Mediation is a conflict resolution mechanism that increases the structure and formality of Dialogue. Ideally, its incorporation is grounded in a deep understanding and respect for existing cultural values and norms for resolving conflicts.

Mediation should rely on IPLC institutions and forums, and traditional ceremonies or practices designed by the IPLC, taking into account government or donor requirements (see Key Issue: Is there a grievance mechanism mandated by a host country government or donor?).

In some contexts, an external mediation process may be regarded as disempowering, in which case it should not be included in the Conflict Resolution Plan. But in others, having a trusted, third-party mediator available may be acceptable or even preferable. Mediation might create a deeper engagement, mutual understanding and compromise between parties, or it could help parties overcome initial mistrust. A mediation process should result in an outcome, such as a commitment to the mediator’s recommendations.

Mediation is not arbitration, and the mediation contemplated by this guidance wouldn’t be considered legally or even procedurally binding. Nonetheless, a mediator may make recommendations parties might not want to hear, but might be willing to hear, based on a prior commitment to the mediation process.

If using an outside mediator is acceptable, TNC and the IPLC should identify the person in advance. It might be an objective academic or professional individual or institution. When an outside mediator is chosen, their name and contact information should be included in the Conflict Resolution Plan.

TNC’s Ethics & Compliance Process

As discussed in the Introduction to this module, in most cases, conflicts can be resolved favorably through Dialogue or Mediation. TNC’s Ethics & Compliance Process ensures that TNC takes responsibility for its actions, and provides another way for an IPLC to raise a concern and access resources to investigate and resolve conflicts. (See Appendix V for more detail on the process.)

The Ethics & Compliance Process is a good mechanism for listening, answering questions or referring concerns back to TNC’s program staff for clarification. When a complaint is received, the Ethics & Compliance Office may consult with program staff to get information or clear up a misunderstanding. Often a mutually acceptable remedy can be found, and the complaint can be resolved.

TNC employees or third parties can contact the Ethics & Compliance team anytime to submit a question or concern at the online Helpline, www.nature.org/tnchelpline. The TNC Helpline is available online and by phone, text or mail 24 hours a day, seven days a week in multiple languages. Complaints can be submitted anonymously and will be treated confidentially to the extent possible, disclosed only to those with a need to know. When someone calls the Helpline, they will speak with a third-party agent who will document the complaint and forward it to TNC’s Ethics & Compliance Team. When someone submits a complaint online, it goes directly to TNC’s Ethics & Compliance Team (see Code of Conduct).

TNC’s Ethics & Compliance process should be explained and information on how to access it should be translated into the IPLC’s preferred language and distributed throughout the project area. If the IPLC does not speak one of the languages available through the Helpline, TNC may need to hire a translator to help file a complaint. Written complaints may be submitted in any language.

TNC’s Ethics & Compliance Process should be presented as an option in the Conflict Resolution Plan at the beginning of a new initiative or as soon as possible in an ongoing partnership.

Measures to Guard Against Retaliation

Since conflict resolution by definition occurs in the context of discord, it might be accompanied by aggravation, frustration and sometimes aggressive and antisocial behavior. Retaliation against individuals who raise a complaint is a problem faced by institutions of all kinds at all levels. Fear of retaliation is a major deterrent to reporting problems, especially for groups who may have more to lose. As stated in our Code of Conduct, TNC will not tolerate retaliation against individuals who ask questions or raise concerns about potential misconduct in good faith.

Anti-retaliation tools should be included in the Conflict Resolution Plan and may include:

  • Procedures to allow for and protect anonymity
  • Procedures to protect the confidentiality of sensitive information
  • Procedures to preserve the physical and emotional safety of participants and the integrity of forums, including respecting legitimate needs of some individuals for physical distance from others
  • Clear messaging from TNC and all initiative partners about zero tolerance for retaliation
  • Warnings about the adverse consequences of retaliation

TNC staff need to know whether there is a grievance mechanism required by either a host country government or a funder supporting the initiative. For example, IUCN and the Global Environment Facility of the World Bank require grantees to comply with each entity’s grievance mechanism.

If a grievance mechanism is mandated, TNC staff should determine what types of disputes it applies to and whether the IPLC has consented to its use or is willing to. TNC’s Code of Conduct requires compliance with local laws, which includes those requiring use of a grievance mechanism. Failure to comply with a mechanism imposed by one of TNC’s donors would constitute a breach by TNC of any funding agreement with the donor.

So TNC’s starting point should be to seek out and comply with these mechanisms. The IPLC would likely be bound, as a citizen of that country, by a grievance mechanism required by a host country, but they would not be bound by a grantor’s mechanism if they were not a party to the funding agreement.

If the IPLC agrees to use the required grievance mechanism, and it applies to disputes not resolved by other local agreements, the required grievance mechanism should be followed.

If the IPLC doesn’t agree to use the required grievance mechanism, the initiative may need to be suspended while TNC gathers information about the reasons and circumstances for the IPLC’s opposition. If TNC and the IPLC can’t agree to comply with a mandated grievance process, the initiative might need to be terminated.

In some cases, TNC and the IPLC might be able to ask for a variance or accommodation from the government or donor. If an alternative grievance mechanism that addresses government or donor concerns is proactively proposed, it might secure government or donor buy-in, especially if it’s culturally responsive, efficient, reduces administrative costs and results in positive outcomes.

As we’ve discussed, TNC and the IPLC should understand and agree to conflict resolution procedures in advance. Addressing IPLC concerns early on will add legitimacy and usefulness to the procedures. Along with basic failure to consult, a hallmark of poor conflict resolution practice is an insistence by outsiders on using their own procedures, which may be unfamiliar to the IPLC. Then the outsiders are surprised if the IPLC either doesn’t follow the procedure when conflicts arise or doesn’t accept the legitimacy of the results. This leads to estranged relationships on top of the existing conflict, rather than the stronger relationships that come from a well-considered conflict resolution process.

The menu approach addresses this to some extent, by allowing an IPLC to set aside any procedures it doesn’t like or understand. Additionally, the first two mechanisms recommended in this guidance—Dialogue and Mediation—are more concepts than formal procedures, which means they could be adapted into frameworks the IPLC prefers.

IPLCs have their own ways of conducting intentional dialogue and, in many cases, engaging a structured process and a third-party facilitator akin to mediation. It’s valuable for TNC staff to learn about how an IPLC understands and engages these modalities, to the extent the IPLC is willing to share. Integrating TNC’s and the IPLC’s approaches can be a useful exercise in collaboration and trust-building.

More importantly, having a conflict resolution method that contains elements of an existing IPLC practice means they are much more likely to seek these solutions when conflicts arise, and it’s more likely that any resolutions will have broad legitimacy within the IPLC.

Conflict resolution methods can be adapted in a number of ways:

For Dialogue, when a member of an IPLC wants to approach another member with a grievance, are there rules or customs in place that ensure mutual respect and enhance dialogue? Examples could range from the structural, like the use of nominees in the place of the aggrieved parties, to the ceremonial, such as the practice of sharing meals before or after a dialogue.

For Mediation, disputes and grievances might be addressed in non-adjudicative but intentional forums before IPLC governing bodies, elder councils or similar entities. Someone within the IPLC might often serve in the role of mediator for intra-community disputes; they may therefore understand the value of a neutral perspective, as opposed to the role of an advocate on behalf of the IPLC, which is an important but separate role.

A plan that provides for mediation facilitated by such an individual stands a much better chance of being relied on and respected, since the person brings credibility. There also might be a trusted outsider who has helped resolve disputes with outsiders in the past. Or perhaps there is a panel of trusted individuals from which the parties could select a mediator.

Any adjudicative dispute resolution methods used by the IPLC should get a close look. In many cases, using such procedures will carry an expectation that TNC or other parties will be bound by the decision of the IPLC institution and not consider it merely advisory. TNC should agree to submit to these procedures only when confident in our ability to comply with a binding decision. It’s better to respectfully decline to submit to these decision-making procedures than to submit to the procedures, but then not be able to comply with the result.

IPLCs are typically understanding of an outsider’s inability to fully submit to IPLC decision-making procedures. In some cases they may not even allow outsiders to use the procedures. But an agreement to use IPLC procedures is the highest expression of respect for Self-Determination and Overarching Good Faith. Even if this agreement needs to be restricted to certain types of disputes or circumstances, for example, following the exhaustion of other options, an agreement to submit to IPLC procedures is a valuable addition to a Conflict Resolution Plan.

The Conflict Resolution Plan should be well scrutinized for barriers to access for members of the IPLC, and adaptations and modifications should be made to address those barriers as much as possible. For example, women may be excluded from an IPLC’s internal conflict resolution procedures. Even if the Conflict Resolution Plan includes women’s participation, psychological or social barriers might preclude individual women from participating.

How can this be addressed yet remain consistent with the IPLC’s exercise of Self-Determination?

Possibilities include the promoting of women’s participation, the convening of separate forums or procedures to solicit views, or providing remedies to women community members. It is important to understand how and if the excluded groups want to participate in the conflict resolution process, as TNC staff risk imposing external perceptions, expectations or values if we don’t see the full context.

Step Two:
Implement the Conflict Resolution Plan

Conflict Resolution Concepts

Equity:
All parties should know how a concern can be raised and how each type of dispute will be managed. The process must provide access to information, advice and expertise needed to resolve conflicts on fair, informed and respectful terms. In some cases, TNC may need to provide additional resources, such as information, advice, or translation services.

Transparency:
Everyone is kept informed about progress and outcomes; decision-making, implementation and monitoring are transparent.

Mitigation and Remedy:
Adverse impacts should be addressed early on, preventing compounding the harm and the escalation of grievances.

Rigorous Follow-Through:
Although conflict resolution mechanisms should be efficient and timely, it may take patience, time and energy to see them through. Sometimes conflict resolution occurs in the midst of fast-moving developments on the ground, and the process starts to feel stuck in the past. Other times, conflict resolution struggles to compete with other priorities, especially as the initial sense of urgency wears off. Follow-through should continue in good faith until the conflict is truly resolved.

When conflict arises, TNC staff must use the conflict resolution mechanisms set out ahead of time, in a manner consistent with the Principles and Safeguards—especially Overarching Good Faith, Self-Determination, Accountability, and Equity & Inclusion. Successful resolution doesn’t depend on any single act, but hundreds of acts over the course of a conflict.

Implementation will depend on the circumstances, so specific guidance is hard to give in the abstract. Where there’s uncertainty, staff should consult Legal Counsel, the Global Indigenous Peoples and Local Communities Team and the Global Diversity, Equity & Inclusion Team.

Staff must stay on top of conflict resolution processes until all parties are satisfied that disputes are resolved. This is important for two reasons:

  • The underlying conflict, which often stems from an important issue, could resurface in another, more contentious, form if it’s not genuinely resolved.
  • Disciplined follow-through increases the credibility of the Conflict Resolution Plan and TNC’s trustworthiness as a partner.

 
Procedures must not be allowed to taper off without real resolution. This could give the impression that the conflict resolution process is a bandage to cover up the problem, rather than a robust information-gathering, problem-solving and relationship-building tool.

TNC and the IPLC should keep the following concepts in mind when implementing the Conflict Resolution Plan:

Step Three:
Continuously Revisit and Adapt the Plan

No Conflict Resolution Plan will be perfect from the beginning. It’s likely that significant problems and obstacles will come up once the procedures in the plan are tested in practice. In most cases, this merely reflects reality rather than poor planning, but the response should be, in either case, a thoughtful and non-defensive process of learning and modifying the plan to meet newly understood challenges.

This process requires: