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

4. Examples of Mediation in Planning

There are many examples of mediation being used successfully in Scotland and elsewhere in difficult situations outside the planning field, including construction, property and development, commercial contracts, workplace and human resources, intellectual property, professional services, management, landed estates, banking and finance, family, community, neighbourhood and restorative justice.

The following examples of mediation being used in the planning process are taken from within both Scotland and other countries including England, Australia, the USA and South Africa. The examples illustrate ways in which mediation can be adopted to increase community involvement, attempt to narrow disputes and resolve deadlock, and help accelerate the planning process.

Links to key centres in other countries that promote mediation in the planning sector - such as the Land and Environment Court of New South Wales, Australia; the Environment Court of New Zealand; and the US Institute for Environmental Conflict Resolution - are provided in Appendix A.

Example 1: Land and Environment Court of New South Wales, Australia

Since 1991, the Land and Environment Court of New South Wales has offered a free mediation service to all parties appearing before the court (except those appearing in criminal matters). Mediation is entirely voluntary and as such any party may choose to terminate the mediation at any time. The mediation is facilitated by a trained mediator and can be conducted at any mutually suitable location for the parties. There are set rules under legislation for the exchange of statements in advance of the mediation; however no report is made out either orally or in writing as a result of the mediation and confidentiality is fully maintained. However, should the parties wish to advise the court of the result of the mediation, they are entitled to do so in mutually agreed terms.

Mediation also plays a part in disputes brought before the court under the Trees (Disputes Between Neighbours) Act 2006 where mediation in this area is compulsory. Only where parties are unable to reach agreement and the court is satisfied that a reasonable effort has been made, will the court intervene granting an order in respect of the particular trees in dispute.

Before even reaching the court, there are a range of Community Justice Centres throughout New South Wales where mediation is available on a wide range of issues, including planning disputes. Mediation tends to be facilitated by two mediators and generally begins with a joint meeting between the parties. It is estimated that more than 80% of such mediations result in an agreement being reached. Additionally, the Community Justice Centres offer a specialist mediation service for native aboriginals where the process is facilitated by aboriginal mediators.

This example shows how mediation can be effectively applied to community issues, and can be designed to recognise issues that may be particular to an ethnic group. The example also shows the compatibility of mediation with encouragement by the courts via a free mediation service and on a voluntary basis.

Example 2: Ratho Community Centre, Scotland

A dispute arose between the local authority and community groups at Ratho near Edinburgh in relation to a planning application. The parties were at an impasse, but it was decided to refer the matter to mediation to see if matters could be resolved.

The parties came together through formal mediation and within half a day managed to achieve a resolution that allowed them to move forward. As part of this, the community groups were able to provide important input to the local authority on their concerns about the matter. A key part of the process was re-building trust which ultimately helped improve relations.

Example 3: Bridgeport Land Sale Mediation, USA

A dispute had been ongoing in Bridgeport, California for over a decade between the Bridgeport Indian Colony and residents who objected to the colony's proposals to develop an area of land consisting of 40 acres from the Bureau of Land Management. There was a complete breakdown of trust and co-operation between the parties.

In 2006 the US Institute for Environmental Conflict Resolution was approached by the Department of Interior Board of Land Appeals to see if mediation could be implemented to reach an agreement. In 3 days of mediation which took place in 2007, the parties reached a compromise and entered into a written agreement for the sale to proceed, thus resolving a long-standing dispute.

Example 4: Major Development Project, Scotland

A team of developers had submitted a planning application during 2007 for a significant development project. There were a number of objections to the application which the developers were keen to resolve. A mediator was instructed to assist in resolving the dispute which was set to escalate.

The mediation resulted in constructive dialogue in which each participant was able to explain how it saw things and to understand the areas of concern on all sides, and to identify what was actually contentious. This provided a platform to enable the parties to reassess their positions and look at a range of options going forward.

This example shows the benefit of the parties coming together through mediation when a dispute arises so that differences between parties can be resolved or at the very least narrowed.

Example 5: Listed Building, England

A planning application was submitted by a trust who wished to develop a listed building in a landscaped park which they owned and used as a home for people with learning disabilities. The planning application was refused twice by the planning committee, even after an architect was brought in to revise the plan.

The parties engaged in a series of joint and private mediation meetings. As a result of a successful mediation process, the trust agreed to revise the planning application, which the planning officer and the local councillor agreed to support when presented to the planning committee.

Example 6: Strategic Municipal Planning in Cape Town, South Africa

Following the end of apartheid in South Africa, the city of Cape Town was faced with a major strategic challenge of restructuring its municipal districts to allow proper integration of the population following the practice of racial segregation. Between 1991 and 1996, a dedicated mediation project was put in place to restructure some 47 municipalities into 7 municipalities with clearly defined powers.

The mediation process involved three key groups: professional mediators (or process organisers), mediating planners and other key "champions" representing stakeholders. All three groups were seen to represent a sufficiently broad range of interests, and the engagement of these parties played a key role in facilitating the restructuring of Cape Town in line with the principles advocated by South Africa in the post-apartheid era.

The example shows how mediation can be applied to a highly complex strategic planning issue, and be designed in a way so that stakeholders of different ethnicities and socio-economic backgrounds can be fairly represented.

Example 7: The Allagash Wilderness Waterway, Maine, USA

The Allagash Wilderness Waterway is a 92-mile collection of lakes and rivers which winds its way through a remote part of Maine Woods. It is regularly used by canoeists and other outdoor enthusiasts, seeking the wilderness experience. Controversies began in 2002 when the environmental pressure group Americas Rivers declared it the eighth most endangered river in the US owing to "mismanagement, overuse and too many access points." When the Governor of Maine later suggested a further access point be created, the matter reached breaking point and a lengthy litigation seemed inevitable.

However, after two days of mediation, an agreement was reached preserving both wilderness environment and recreational access to the river, thus ending a dispute which had lasted a generation. The mediator noted that the process was assisted greatly by the fact that key representatives of the different groups were present, each able to act with authority.

The example demonstrates how mediation can be applied to access issues in the outdoors where there are competing demands for land use and recreation.