A Guide to the Use of Mediation in the Planning System in Scotland

1. Introduction

Purpose of this Guide

The purpose of this guide is to help those involved in the planning system in Scotland to understand how mediation can be used to enhance the planning process. The guide is designed to be a practical resource for a wide audience including:

• planning authorities
• applicants/developers
• statutory consultees and other agencies
• third parties (individuals, communities and non-government organisations)
• planning consultants and other professional advisers

Context

The guide sits in the context of the Scottish Government's agenda to modernise the planning system and its priority to promote increased sustainable economic growth. Recent legislation and ongoing reforms to improve the speed and quality of the planning system and increase community involvement can make an important contribution to achieving this objective. Greater use of mediation in planning is in line with the shared commitment to positive culture change in planning and the Government's desire to encourage more effective collaboration within Scotland to realise the country's full potential, balancing inclusion with efficiency.

The 2005 White Paper 'Modernising the Planning System' identified mediation as a tool which could help improve the speed and quality of the planning process. Mediation can be viewed as complementary to current procedures and decision-making, adding value not an extra layer.

It is important to recognise that mediation cannot replace the statutory planning decision-making process, as any planning application will require to be determined by the appropriate decision-maker. However, mediation may assist in improving the quality of an application, or may serve to resolve or narrow a dispute - and, as such, it has the potential to help the planning process to flow more smoothly and to arrive at better informed and more cost-effective outcomes. Whether mediation will or will not work in a particular matter will depend largely on the willingness, open-mindedness and hard work of those involved to find a resolution.

What does Mediation offer?

Given the range of competing private, community and government interests in land use across Scotland, conflict and differences of view are inevitable. Mediation can help parties deal with such differences, both in terms of building consensus and in resolving or narrowing disputes when these arise. Around the world, it has a proven track record of enabling parties to work together constructively rather than destructively and of providing swift, cost-effective and creative resolutions. It is also viewed as a tool by which to manage risk. Mediation can help to change the language of discussions and the culture of processing applications from one of confrontation or polarisation to that of cooperation and collaboration.

In a planning context, research carried out by the UK Government in 2002 estimated that the use of mediation in the planning system could release more than £3 billion of investment into the economy more than 40 weeks earlier than if other routes to dispute resolution were used. A key benefit for Scotland could be earlier decisions and a reduction in time taken to determine applications. In a time of economic challenges, mediation may also offer significant benefits to planners and developers who seek to move more efficiently through the planning process.

Mediation's cost-effectiveness compared to more adversarial processes, comes in part from its speed and, as such, costs of participation are likely to be less prohibitive, enabling increased involvement by stakeholders from any socio-economic background. In addition, the mediation process is highly flexible and can be tailored in each case so that any issues relating, for example, to gender, ethnicity and disability or other perceived imbalances which require appropriate recognition can be accommodated. Through its confidential nature, mediation can help contain issues thus providing a valuable risk management tool.

Summary of Potential Benefits of Using Mediation and Mediation Skills in Planning

The following benefits may be gained from using mediation and its corresponding skills in the planning sphere:

• Meaningful engagement by interested and concerned parties
• Better identification of the real issues and a narrowing of differences
• Reduced time and cost in reaching effective decisions
• More constructive and creative outcomes
• Breaking deadlock or a logjam and reducing barriers to dialogue
• Identification of interests rather than positions
• Explanation of new developments and reassurance about change
• Creating opportunities to modify plans and make concessions while saving face
• Better quality of decision-making and outcomes
• More effective management of risks for all parties
• Opportunities to be heard and to listen
• Acknowledgement and recognition of concerns and fears
• Greater overall understanding
• Separating the issues from the people
• Redressing of any perceived power imbalances
• Preserving, building or rebuilding of personal and professional relationships
• More effective communication and building of trust between various parties
• A structure which supports cooperation rather than confrontation