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

5. Frequently Asked Questions

• Is mediation just a nice idea? - Certainly not. It is a rigorous process, requiring hard work and commitment and a focus on what is really at issue. Participants are often surprised at what can be achieved in a short space of time and by how involved they are in the process.
• To what extent has mediation been used in planning in Scotland or elsewhere? - To a limited extent in Scotland and elsewhere in the UK. It is more widely applied in places such as Australia and New Zealand where it is a key part of the work of the Environment Courts.
• Where might it be used in the planning system? - Potentially at all stages of the system, but in particular in development planning and pre-application in order to build consensus and reduce objections, and post-rejection of an application in order to resolve issues before any fresh application is made.
• Is it an alternative to the existing planning system? - No, it complements the existing system by helping reconcile the private interests of different parties, but it does not eliminate the need for planning authorities to consider the wider public interest in fulfilment of their statutory duties.
• Is there a role for elected members? - Yes, as representatives of the community, although if they are also members of the planning committee which will decide on a particular application, this may limit their involvement in any mediation which addresses the issues in that application.
• Can the confidential nature of mediation be reconciled with the transparency of the planning process? - Where this is a relevant issue, this should be possible if the parties agree to the publication of the outcome of the mediation and the reason(s) underpinning that outcome. Publication would probably be necessary anyway so that the outcome can be fed into the decision-making process. Freedom of Information legislation should also be taken into account in drafting an agreement to mediate and in considering to what extent written documentation used or created in mediation may be recoverable at a later date.
• How can you ensure that a mediator has sufficient skill? - By using a recognised and experienced professional mediator or mediation service and by asking questions about their background, training, experience and expertise. You can ask for references. Mediators who appear in the Scottish Mediation Register or who are offered by established mediation services certify that they have achieved or exceeded minimum practice standards.
• Do mediators engaged in a planning matter need to be expert in planning? - This may be useful in some circumstances, for example to help test the realism of emerging options to resolve a matter, but it is not essential. Indeed, lack of expert knowledge may be an advantage in removing a possible tendency to judgement on the part of the mediator. Often, this issue can be addressed by appointing someone knowledgeable in planning to assist an experienced mediator.
• Would mediation be a source of delay and additional work? - Usually, mediation can be set up very quickly, owing to its informality. However, those involved do need to be prepared to take part. Often this preparation is similar to work which will have been undertaken already or would be necessary in other processes. In this way, duplication can be avoided. The process itself can and should be considerably shorter than other approaches which can often be time-consuming and costly. Mediation nearly always produces one or more of these outcomes: progress on understanding key points, a narrowing of the issues and overall resolution of differences. .
• Will parties to mediation prejudice themselves during future stages of the planning process if mediation is unsuccessful? - This should not happen, as anything said in discussions during mediation is confidential and not binding (unless otherwise agreed or a formal agreement is eventually reached). This allows parties to be creative in exploring options and possible solutions without being bound in any way.
• How successful is mediation? - In commercial matters, most research reports that resolution is achieved in over 80% of cases which go to mediation. It is important to appreciate that it is unusual for any party to leave mediation having achieved 100% of what they hoped for. For mediation to be successful, parties often have to make some concessions in order to achieve their primary objectives ('give to gain'). Whether and how they do so is always a matter for them to decide. "Success" may also be the unlocking of a difficult situation and a narrowing of differences, enabling parties to move on with a more limited scope of topics for formal decision.
• Will mediation favour the party with greater resources? - No, a key role of the mediator is to ensure that any perception of power imbalance between those involved in the discussions is minimised so that a full and fair exploration of issues, interests and possible solutions can be achieved.
• If mediation doesn't appear to be working, are parties locked in to the process? - No, it is an entirely voluntary process from which parties can withdraw at any time if they wish.