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

2. About Mediation

What is Mediation?
Why Use Mediation?
How Does Mediation Differ from other Processes?
Central Elements of Mediation
Who is Involved?
How Does Mediation Work?
Making a Start
Selecting a Mediator
What about Cost?
Using Mediation within an Organisation
When not to Use Mediation

What is Mediation?

Mediation is defined in the glossary of Planning Advice Note 81 on community engagement as being: " a process involving an independent third party, whose role is to help parties to identify the real issues between them, their concerns and needs, the options for resolving matters and, where possible, a solution which is acceptable to all concerned."

The mediator should have no connection to the matter being addressed and acts as a facilitator of discussions between and among those with a dispute or difficult situation to address, helping them to communicate effectively with each other. Commonly, this occurs where traditional ways of moving forward have not worked or are not appropriate. Where there are complex issues or several parties, more than one mediator may be engaged

In mediation, the parties themselves retain control over the terms of any agreement reached, even if that has then to be ratified elsewhere.

Mediation offers the potential to achieve relatively swift, creative and cost-effective outcomes, which so far as possible take account of the underlying interests, needs and concerns of those involved.

Even if not everything can be resolved, those involved can gain a real understanding of the issues and of others' points of view, narrowing the areas of difference and discussing ways to go forward.

Why use Mediation?

Negotiation may be defined as a process by which those involved in a discussion of issues seek to find a common understanding and to explore options for resolving differences between them by agreement. Negotiation without any outside help can be - and often is - very successful.

However, in some situations, negotiation between two or more parties can become deadlocked through the parties' anxiety or unwillingness to divulge their true positions and interests to others. They get stuck. Similarly it may be difficult for parties to have the confidence to co-operate with one another to achieve mutual goals within the negotiation process. If there are a number of parties or complex issues, this can be magnified.

They may become competitive and polarised. Trust is a precious commodity that is often lost or compromised. The presence of an independent mediator can help to build a platform for discussions, unlock entrenched positions, narrow the differences and allow the parties to move towards a satisfactory outcome. The mediator adds a further dimension to negotiations, and the confidential setting of mediation allows parties to examine matters fully and constructively while acknowledging their own special interests.

How Does Mediation Differ from other Processes?

• A rbitration, Litigation or Appeal

In an appeal, as in arbitration or litigation, a third party acts as decision-maker, issuing a judgement after considering the evidence and submissions of parties. A mediator does not make a decision and cannot impose a solution.

Occasionally, mediators may be asked by the parties to perform a more evaluative role, expressing views or suggesting a solution which the parties may accept or reject. This is highly unusual and generally mediators will not encourage this.

• Consensus Building and Other Techniques

Mediation skills can be applied to situations where there is no clear dispute but a desire to reach a shared understanding of issues, aspirations, needs and concerns. The skills used by a mediator or other facilitator in enabling dialogue to take place between parties are essentially the same as those used by a mediator when parties have a more specific dispute.

Where there are a number of parties affected by a particular matter, there may be benefit in trying to work with those parties' concerns and aspirations with a view to building consensus and, for example, agreeing a statement of shared interests or common ground. This may be known as consensus building or public engagement or consultation. An independent facilitator or facilitators can enhance this approach.

Similarly, using mediation skills can often help people to identify and narrow factual or other issues in a non-adversarial way. This can be part of a wider decision-making, investigation or research process. Often, planning officials will use mediation skills - see the section on Using Mediation within an Organisation.

A mediator or other independent facilitator can also be engaged in a number of similar capacities. These might include working alongside senior decision-makers to help them to resolve conflicts or disputes between their organisations or businesses or being engaged for the duration of a development or other project as the "project mediator" to help those involved to address problems as they arise.

Central Elements of Mediation

Creativity - Fundamentally, mediation should enable people to focus on their true interests rather than positions. The outcome of a mediation is often more creative, wide-ranging and suitably tailored to a situation than the remedies which are available and can be achieved through a court or other hearing.

Control - The parties retain complete control over what information is conveyed to other parties via the mediator. The mediator will work with each party to find out the best way to ensure that there is clear communication about the main issues and concerns. Nothing said or done is binding on the parties unless they reach agreement. The parties are not bound to enter into any agreement or do anything they do not want to do. Mediation is generally voluntary and people may leave if they do not wish to continue.

Confidentiality - Mediation is generally a private process. The parties are able to discuss important issues and, if they wish reach a resolution, discreetly, without the fear of disclosure of what has been discussed or other publicity. They are not obliged to disclose information if they do not wish to do so. In some settings where the principles of openness and transparency are important, it may be necessary to make public the result of negotiations in mediation and the reasons for decisions in order that these can be approved and implemented. If parties wish to conduct all or parts of mediation in public, they may agree to do so. There may be a need for, or value in, drafting an agreed statement of reasons, recommendations or a description of the process, for information to statutory bodies, the public, press and others.

Without Prejudice - Mediation is usually conducted on a "without prejudice" basis. In other words existing legal and other rights are not compromised in any way unless the parties agree that these can be waived, and generally anything discussed within the mediation setting cannot subsequently be used as evidence in a court or other hearing unless agreed to by all concerned.

Focus - Even if full resolution is not achieved, the issues are usually narrowed and parties have a far better appreciation of the realities of their own and the other parties' positions. This in turn may result in a reduction in the number of issues scheduled to be determined in a planning setting or court hearing. Further mediation or further negotiation may occur. Very often a resolution is achieved after time for reflection.

Agreement - If a satisfactory outcome is achieved, this can be expressed in a formal agreement or in a less formal manner, according to the needs of the situation. In some circumstances, heads of agreement may be drafted and a full agreement finalised after time for reflection, and for legal or other issues to be formalised or for advisers to be consulted. An exchange of letters or emails may suffice. On occasion, a formal record may be required for submission to another body for approval.

Who is Involved?

Parties - At mediation, those with an interest in the issues which are being addressed will usually be involved (often called "the parties"). In planning matters, these may include planning officials, developers/applicants, key agencies (such as Scottish Natural Heritage, the Scottish Environment Protection Agency and Scottish Water), community councils and interested third parties. Mediation can be structured to include a number of parties depending on the circumstances.

It is usually very helpful for key decision-makers to be present if possible with as much authority as is appropriate to reach conclusions and decisions. Failing that, it is important that there is a clear line of communication to the decision makers or an understanding of the limits on the authority of those present. It is also useful to have present in the process all those who are likely to be affected, or who have rights upon which they may rely, in order to reduce the possibility of subsequent unhappiness or challenge to what has been discussed. The mediator should seek to ensure that all relevant parties are given an opportunity to participate. It may be helpful to have groups of interested people represented by a spokesperson or other agreed representative who can help to focus the views of that group.

Advisers - The use of mediation will often benefit from the input of legal or other professional advice. This will depend on the nature of the matter to be discussed, the extent of the legal issues and the costs involved. Advisers often play a crucial role in mediation.

The role of planning consultants, lawyers and other advisers is to support the process and assist their clients to make the best use of mediation - while providing expert input from their own experience and knowledge. Sometimes, participants find it helpful to have friends or relatives attending with them.

How Does Mediation Work?

Meetings - Typically mediation will take place on an agreed day or days with all the parties taking part in discussions present in one venue, often at a convenient independent location such as a conference facility, community hall or hotel (possibly near to or at the site of any development or other physical place which is being discussed).

The mediator may meet jointly with all concerned, if they agree, and will also conduct confidential meetings with the parties (and their advisers) in private rooms, exploring the issues and options and encouraging a frank assessment of the situation. This enables people to reflect on their position and to work out possible solutions. What is discussed in these meetings remains private throughout, unless parties specifically agree to share information. It is possible for the parties (and/or their advisers) to meet together jointly at any time, usually with the mediator present.

Occasionally, the parties do not wish to meet at any stage, and this can be accommodated with the mediator effectively shuttling between the parties throughout.

Flexibility - In some situations, perhaps with several parties, there is benefit in a different approach. Rather than having one set-piece series of meetings on a single day, meetings can be held over a period of time in order to build the necessary understanding and framework for addressing the issues. This can often be beneficial when there is a need for information to be gathered and perhaps for external input on some crucial issues. This may also be useful when there is a need for time for reflection.

The flexibility of the process also allows appropriate provision to be made when there are cultural, ethnic, language, access, perceived power imbalances and other needs to be accommodated. A good mediator will be sensitive to these issues and will help parties to find ways to express what is important to them in an appropriate way.

Prior to the Meetings - Parties and/or their professional advisers will often meet with the mediator in advance of the mediation meetings to discuss preparation, appropriate venue, the exchange of documents and other steps to ensure that best use is made of the meetings. Combined with regular contact with all those concerned in the period before the mediation day(s), this can help focus the parties' minds on their approach to the issues and significantly enhance the prospects of success.

Typically, the parties (or their advisers) will be invited to provide a short, written summary covering the main issues as they see them, as well as submitting any relevant documents. The parties and others attending will usually sign a formal agreement which confirms the confidentiality of the process and other matters which ensure that the mediation runs smoothly.

Preparation - In advance of the mediation, or at the beginning of the mediation day, the mediator may often ask the parties involved to consider questions such as the following:

• What are your overall objectives?
• What do you have in common with the other party?
• What is in dispute?
• What are your needs? What are your concerns?
• What might the other parties' needs be? What are the other parties' concerns?
• What do you think the other parties need to hear from you?
• What might you say to the other parties?
• Where might misunderstandings have arisen?
• What are your strengths? What are your risks? What are those of the other parties?
• If you do not reach agreement what are the alternatives?
• What costs have you incurred to date?
• If you do not reach agreement, what costs will you incur in the future?
• If you do not reach agreement, what other consequences will there be?
• What are the options for resolving this matter? What creative possibilities might there be?
• How will you assess any proposals put forward by the other parties?
• What proposals might you make? How?

Making a Start

The following steps are a suggested route for initiating and making best use of mediation when using an external provider of mediation services:

1. You may contact the other party(ies) who are involved in the dispute or other difficult situation to propose that the matter be addressed using mediation. You may then agree jointly to approach a provider of mediation services (see Appendix A). Alternatively, you may contact a mediation service provider first and discuss with the provider how to get started and how to approach other parties. The provider will often undertake this.
2. The mediation service provider may suggest that, if helpful, you take part in an initial, without commitment meeting with other parties to discuss the possibility of mediation and how it would work and to help build understanding of how to go forward. This may involve legal or other advisers and/or the parties themselves.
3. The mediation service provider will help the parties to identify a suitable mediator and will discuss the mediator's terms of engagement, including fees, and help to identify a date or dates and venue. There may be a meeting to discuss preparation, exchange of summaries and documents and who should participate.

This general approach should also apply when approaching a mediator direct, or a mediator from another organisation, or when making use of an internal mediator (see below).

Well organised mediation services will help you through the various stages including guiding you on the appropriate documents, the terms of a mediation agreement and other preparation.

Selecting a Mediator

There is no uniform regulation of mediators in Scotland. Mediators are trained in a variety of settings with training courses of variable duration and quality. Mediators practice in a number of areas, including the commercial, family, community, neighbourhood and environmental sectors.

It is important to find a mediator or mediators with appropriate training, skill and experience who has trained with a credible training provider and who continues to develop skills through regular continuing professional development. Subject knowledge may be helpful (in that planning knowledge and experience may assist in formulating creative solutions and facilitating a resolution) but, given the mediator's facilitative role, should not be the principal determining factor. It is often possible to address this issue by appointing an assistant mediator with knowledge of the subject area, to work with a mediator who has considerable mediation experience. A good mediation service will advise and help with this.

A mediator should subscribe to a recognised Code of Conduct and have appropriate indemnity insurance cover. He or she should offer a procedure for addressing complaints or concerns and have the necessary administrative support.

There is a number of mediation service providers in Scotland (see Appendix A). Many mediators (though not all) are registered with the Scottish Mediation Register which sets certain minimum standards for training and continuing professional development (see Appendix A). The Scottish Mediation Network ( www.scottishmediation.org.uk) offers information about contacting mediators, including those on the Scottish Mediation Register, and also provides a Code of Practice for Mediation in Scotland.

What about Cost?

Mediation can deliver many benefits such as better communication and better understanding. In addition, one of the major benefits of using mediation is its cost-effectiveness. Many mediations result in an acceptable outcome in one day; others may take a few days or extend over a relatively short period of time.

Mediation is a flexible process and there is no fixed approach to fees and costs. A number of factors will influence the level of fee in each different situation. These factors will include duration, location, preparation required, the seniority, professional affiliation and experience of the mediator, the number of parties and the complexity of matters under discussion. Generally, costs to be met will include those associated with providing an appropriate venue, preparation, representation by legal or other advisers and the fee of the mediator. A mediator may charge for preparation and for the time he or she is engaged in the mediation meetings. This is often on a daily basis or may be per hour. Mediator service providers and individual mediators will provide quotations on request.

The mediator's fees are usually shared equally among parties but this may not always be practicable and is frequently varied to recognise the economic circumstances and priorities of key participants. For example, fees may be met by a public sector organisation or an interested commercial party if to do so enables those with fewer resources to engage in the process. The initiator of the mediation process may decide that the cost of mediation is a worthwhile investment. In a matter where one party is paying, it is essential to involve all parties in the selection of the mediator, in order to maintain the perception of impartiality.

Using Mediation within an Organisation

Overview

Planning officers often already use mediation-type skills in day to day work to address conflicting interests. In some circumstances it may be appropriate to utilise mediators from within an organisation. Often this will work and, indeed, many organisations will have experience of using internal mediators or facilitators. This can raise issues about the independence of the third party and the perception of his or her ability to act in a wholly impartial manner. There may be situations where such a mediator will be acceptable to all concerned. This may be especially so if the mediator comes from a different department or discipline.

It is perhaps useful to distinguish between such an internal function and an independent third party fulfilling the functions described in this guide. That aspect apart, the same considerations about skills, training and processes will arise as narrated elsewhere in this guide. It may be helpful to devise a formal protocol where the use of internal mediators is contemplated.

Culture and Training in Mediation and Effective Negotiation Skills

The skills used by a mediator can be and regularly are applied in conventional negotiations where there is no third party acting as facilitator and by advisers and others in mediation itself. Part of building a more collaborative culture in the planning system in Scotland is to encourage an attitude towards the planning process which enables all those dealing with contentious planning issues in local authorities and elsewhere to utilise the skills and techniques highlighted in this guide.

A New Approach

This may entail a new approach to handling applications, together with objections and other challenges. This may require training. Training is available from a number of sources (see Appendix A). This is not a training guide, but the following are some useful tips which may be helpful for planning officials, other stakeholders and professional advisers when involved in either mediation or negotiation:

• Separate the people from the problem, whatever you may think of the individuals
• Be robust on the issues but always respectful of individuals
• Search for and try to understand the underlying objectives, needs and concerns of others
• Remember the power of acknowledgement of others' grievances and recognition of what they feel or have felt
• Look for mutual gains and common interests
• Avoid bottom line thinking - don't get stuck on one position or attitude
• Set aside difficult issues and work on others in parallel, trying to develop options
• Be prepared to make concessions and to help others to save face
• Avoid making assumptions - accept that generally everyone is trying their best
• Keep asking questions - what am I missing?
• Keep an open mind - flexibility is vital
• Remember the Big Picture
• Always listen to what others are saying

When not to use Mediation

Mediation may not be appropriate if:

• It is necessary to determine a general legal principle of wide application
• There are significant issues of public interest which need to be resolved in a formal manner
• There is an urgent need to provide a legal remedy or provide the protection of a court
• Those who might take part are wholly unwilling to do so.