Mediation and planning: Here to stay?
Mediation is a way of resolving disputes and building consensus with the help of a neutral third party. It tends to be quicker, cheaper and more flexible than litigation, and it enjoys high success rates. For these reasons it has become increasingly popular in dispute resolution, and, in judicial circles, is now seen as a “must”. Indeed, in the words of Sir Geoffrey Vos, the Master of the Rolls, in his introduction to last week’s publication of Civil Justice Council’s Compulsory ADR report : ” … ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process; that process should focus on “resolution” rather than “dispute”. This report opens the door to a significant shift towards earlier resolution”.
In a similar vein, last week, Joanna Averley, MHCLG Chief Planner, announced the launch of a “Pathfinder” initiative with the Planning Inspectorate (PINS), the purpose of which is to review its current enforcement workload to identify which appeals could be referred to mediation.
“As part of the Government’s reforms of the planning system we have been looking at ways in which the appeals system can become more responsive.
The Inspectorate is currently looking at all appeals which are scheduled for public inquiry or hearing raising grounds (a), (f) and (g), concern gypsies & travellers, or are in respect of TPOs and High Hedges. For cases considered suitable the Inspectorate staff will contact relevant parties to provide information explaining the process and giving contact details for the mediation service which will be overseen by RICS and CIArb, organisations with extensive experience of managing specialist dispute resolution appointments.
We expect that this initiative will be welcomed by the relevant planning authorities (and appellants), given the current backlog and increased time delays arising out of the pandemic. If, as is to be hoped, this initial “Pathfinder” is successful then active steps may well be taken to expand the range and scope of planning matters that could be resolved or issue limited through mediation even before a statutory appeal is submitted”.
This article looks briefly at key considerations arising in this context.
The essential elements of mediation
As mediation is the use of a neutral third party professional to facilitate the negotiated settlement of a dispute any type of dispute, or difficult negotiation, can be mediated, including those arising in planning enforcement and other planning contexts, such as development planning, development control, and negotiations concerning other planning matters such as contributions.
Mediation is entirely voluntary, “without prejudice” (meaning that nothing said or produced can be relied on later in formal proceedings) and, unless the parties disagree, kept confidential. The format is flexible and can be tailored suit the parties and the case. Typically it takes place over a day at a suite of rooms at a convenient location, or remotely via a platform such as Zoom. It usually includes a combination of joint sessions involving all or some of the parties in dispute, and private meetings between each individual party and the mediator.
Whilst parties are usually (but not always) represented by legal and/or other professional advisors (e.g. a planning consultant) mediation is designed to facilitate dialogue and promote understanding instead of adversarial exchanges. The outcome is negotiated rather than imposed, and can range from informal consensus to a binding agreement. The aim is to meet the needs of all parties, and the parties are under no obligation to agree to anything.
Key points about mediation in planning, and, of enforcement cases
Mediation does not remove the need to act within the statutory code, nor avoid transparent decision-making that takes into account the public interest, nor usurp the role of committees; and because of its flexibility, the process can be designed to respect these interests whilst still delivering positive outcomes. That flexibility also allows the parties to design solutions that would be beyond the scope of the statutory processes, such as the enforcement appeal mechanism, which is limited in terms of grounds of appeal and remedies, and whose outcomes which tend to be binary. This means mediation can more directly respond to the needs of the parties, for example by exploring whether there might be alternative outcomes that avoid planning harm and meet third party objections whilst at the same time facilitating landowner objectives.
A planning enforcement mediation can fully involve third parties such as neighbours and other stakeholders who would not be main parties to a formal appeal.
Because of its capacity to build consensus instead of entrenchment (which is often a consequence of litigation) mediation can avoid the legacy of damage to relationships. This is particularly valuable in the land use context where emotions can run particularly high, and where stakeholders are often in long-term relationships with one another from which they cannot easily escape (for example as landowner and council, or as neighbours).
Furthermore, mediation offers the opportunity to resolve disputes between stakeholders in confidence, thus avoiding the adverse publicity of the appeal and other legal processes.
Finally, mediation can short-cut the lengthy and often expensive appeal process, which is currently subject to a substantial Covid-induced backlog.
Preparing for mediation
We offer the following guidance for parties who are interested in mediating:
• Discussions with opposing parties about the use of mediation can be commenced at any time. Generally, the earlier a mediation takes place, the better. This is usually because costs are lower and positions less entrenched. A willingness to mediate is not taken as a concession that there are weaknesses in a party’s case.
• Once the parties agree to mediate, they should jointly appoint a mediator whose experience and qualifications are suitable given the nature of the dispute. Normally they will agree to share the mediation fee equally. A list of practising mediators with experience of the planning system is available from the Planning Mediation Appointment Service jointly administered by the Chartered Institute of Arbitrators and the Royal Institution of Chartered Surveyors, both of whom have had long-experience in the appointment of independent dispute resolvers.
• Usually the appointed mediator will consult with the parties individually in order to design the process and assist each party to prepare effectively. This is typically done in preliminary telephone calls or online meetings.
• Normally, the parties will be invited to provide relevant documentation to the mediator, and to share with all parties a mediation statement setting out what each hopes to achieve from the mediation.
• On the scheduled day (or days) of the mediation, the parties will attend the agreed venue – physical or remote – at the start time. Although the process is voluntary they will usually remain until either the dispute is settled, and any agreement is signed, or it becomes clear that no settlement is likely. The mediator will be concerned to ensure that at all times the parties are comfortable with the process and that there are sufficient breaks for refreshment etc.
• When preparing for a mediation, it can be useful for parties to consider the following:
o what they hope to achieve through the mediation, including what type and range of outcomes might be acceptable; and
o that whilst the process offers an opportunity to be heard by the other parties, it also necessarily involves a willingness to listen, and to explore compromise.
As practising planning professionals and mediators it has been our experience that the use of mediation and other related techniques to facilitate dialogue can achieve positive outcomes in even the most protracted and ill tempered disputes. The new MHCLG/PINS Pathfinder Initiative effectively endorses this experience and adopts the directional course promoted by the judiciary. It seeks to exploit the increasing availability of mediation skills, and to build on positive lessons from both the planning enforcement and other dispute contexts that indicate that better, quicker and cheaper outcomes are possible. So, why not become an active participant in this major “sea change” in dispute resolution in the planning context?
John Pugh-Smith (39 Essex Chambers) is the co-ordinator of the Pathfinder Initiative and Harry Spurr (Guildhall Chambers and IPOS Mediation) and Josef Cannon (Cornerstone Barristers) are fellow members of the inter-professions Planning Mediation Working Group.
A podcast version of this article is available here.