Planning system - promotion and use of mediation - draft guidance: consultation analysis

3. Policy support for mediation

3.1 The second part of the consultation paper set out the rationale for maintaining policy support for the use of mediation in National Planning Framework 4 (NPF4), including reference to feedback gathered through the NPF4: Call for Ideas and Scottish Mediation/PAS survey. Question 2 asked whether respondents agreed with the proposal to maintain policy support for the use of mediation.

Q2. Do you agree with the suggestion to maintain policy support for the use of mediation in National Planning Framework 4?

Please comment on your answer (particularly if you do not agree).

3.2 A total of 38 respondents answered Question 2, including 29 organisation respondents and nine individuals. Of these respondents, a large majority (33 of 38) agreed with NPF4 maintaining policy support for mediation, and five disagreed. Those disagreeing included two public sector, two private sector and a third sector respondent.

Note: 3 did not respond to the closed element of Question 2.

3.3 A total of 27 respondents provided written comments in support of their response at Question 2.

3.4 Most of those providing written comment agreed with the proposal for NPF4 to maintain policy support for mediation. Some saw a need for national policy on use of mediation in the planning system to provide a “mandate” for planning authorities and other participants to take this forward at a local level, and to ensure that mediation is used effectively across the planning system. This was seen as particularly important given mediation is a relatively new tool for the planning system and may be unfamiliar to many participants. It was also suggested that NPF4 should include links to guidance and other relevant resources to support those seeking to use mediation in the planning system.

3.5 Some also noted that promotion of mediation fits within the wider aim of a more effective and efficient, plan-led system. This included comments highlighting alignment between promotion of mediation and the introduction of Local Place Plans in terms of ensuring the views of communities are properly considered early in the planning process. It was also noted that national policy support for mediation is an opportunity to emphasise alignment with other policy areas such as Community Planning and the Community Empowerment Act, and Land Reform policy.

3.6 A number of those in favour of national policy support for mediation wished to see NPF4 provide clarity on whether mediation would be a statutory requirement, and to set mediation in the context of the full range of dispute resolution techniques available to the planning system. In this context, it was noted that Scottish Planning Policy currently refers to “mediation initiatives” as one of a range of engagement techniques, and some felt that this was an appropriate level of policy support.

3.7 Most of those providing comment at Question 2 raised issues or suggested amendments to the proposal for policy support for mediation. This included comments from a number of those broadly in favour of maintaining national policy support. Issues and suggested amendments raised by respondents are summarised below.

• While most supported reference to mediation in NPF4, some felt that mediation must remain a voluntary process for all parties and as such should not be made a requirement. Some wished to see NPF4 make clear whether mediation would be a statutory requirement, and if so in which circumstances. More widely, respondents also wished to see guidance on when mediation may be the most appropriate approach to resolve disputes or build consensus. This reflected a wider view that policy support for mediation should make clear that this is one of a range of approaches to engagement and dispute resolution such as community mediation.
• It was suggested that policy support for mediation should address (through NPF4 or associated guidance) the mechanism for providing mediation services in the planning system. This included reference to potential for a national body providing mediation services, as was suggested by Scottish Mediation/PAS in consultation supporting documents.
• Some also felt that policy support must include consideration of how the use of mediation in the planning system is to be resourced, including whether this will be led by a national body. Concerns were expressed that planning authorities will require additional resources to meet their new responsibilities in relation to use of mediation. Some also expressed concerns regarding potential for further inequity in the planning system if the cost of mediation is to be borne by communities or representative groups.
• There was some concern regarding potential use of mediation in relation to planning for housing, and specifically assessment of housing requirements. It was suggested that mediation may be unlikely to resolve disputes in these circumstances given the complexity of the assessment process, and that any use of mediation would be likely to add significant delays to the process.
• Some of those who disagreed with continuing policy support for use of mediation in planning reiterated their view that mediation will not contribute to a fairer, more effective and efficient planning system, and raised concerns regarding potential for mediation to add to delays and costs.

The cost of mediation

3.8 The consultation paper and associated Business and Regulatory Impact Assessment (BRIA) noted that there is limited evidence available to support an assessment of the cost effectiveness of mediation. This includes evidence of the cost to parties involved (in terms of financial cost and time input), and current practice around who meets financial costs. It was also noted that there is limited evidence relating to potential savings achieved by mediation, where it is successful in removing or reducing dispute.

3.9 Question 3 asked respondents to describe any prior experience of using mediation, including costs incurred and how these were shared between parties.

Q3. Please tell us about your experience of using mediation including any financial / non-financial costs incurred. Please set out also how any costs were shared between the parties.

3.10 A total of 27 respondents provided comment at Question 3, including 21 organisation respondents and six individuals. The 21 organisation respondents included eight private sector, eight public sector, three third sector respondents, and two planning/other professionals.

3.11 Comments from these respondents included some concerns regarding the potential cost effectiveness of mediation, with some noting that the consultation paper states that overall cost effectiveness is unclear. This was related to wider concerns regarding the ability of planning authorities to fund mediation in the context of limited public sector resources. Reference was made to the scale of reduction in planning services in recent years, and the range of unfunded additional duties placed on planning authorities by the Planning (Scotland) Act 2019.

3.12 Some with experience of mediation services suggested that direct professional costs may form a relatively small proportion of the total cost, for example as compared with the time input required from all parties involved. In this context, concerns were also raised that rough cost estimates included in the BRIA do not include any predicted costs for local communities.

3.13 Concerns were raised regarding other assumptions made in the BRIA, particularly around use of mediation in local development plan preparation. It was suggested that the number of representations typically received by planning authorities, and the range of unresolved issues carried forward, mean that the BRIA significantly underestimates the number and size of mediation events required. It was also suggested that the complexity of issues considered by local development plans is likely to add further to the cost of any mediation.

3.14 Some of those providing comment made direct reference to the potential costs of mediation services, including how these might be apportioned between interested parties. These comments are summarised below.

• Mediation service respondents cited experience of mediation across a broad range of policy contexts and participants. These respondents claimed that mediation can reduce costs in comparison to other forms of dispute resolution, including suggestions that the initial expenditure on mediation can generate future returns by improving outcomes.
• Respondents outlined a number of potential approaches to sharing of mediation costs. This included some raising specific concerns regarding the potential for take-up of mediation to be limited if one or other party is required to meet up-front costs. Some were also concerned that a model which required a contribution from communities or individuals could exacerbate existing inequalities by limiting participation in mediation to more affluent communities.
• Some mediation service respondents suggested that costs are typically shared between parties, or are met by the party initiating the process and/or economically advantaged by the proposal. However, another noted that the planning authority met all costs in a recent use of mediation in a planning dispute. Reference was also made to a range of other funding models which were seen as potentially applicable to the planning system:
  • National level funding is currently used in health services, with a provider funded to deliver an agreed volume of mediation and ancillary services such as advice services.
  • Part national and part local government funding is currently used by the Tenant Farming Commission, whereby national funding contributes a set percentage of mediation costs for eligible cases, with the remainder met by local government.
  • Party funding is typically shared between parties, although it was noted that one party may fund the full cost in some circumstances. It was noted that in these circumstances it is important to be clear that the mediator remains impartial.
• Few respondents provided specific costs for mediation services. For example, four planning authorities cited experience of using mediation but only one included reference to a specific cost. Similarly, only one mediation service respondent provided reference to specific costs.
  • £5,000 for professional mediation in relation to a specific case.
  • Professional costs of £100 (plus VAT) per hour.
• Some of those with direct experience of mediation services expressed concerns regarding the effectiveness of the approach in those cases.