Weighing up the alternative

January 27, 2011

The importance of alternative dispute resolution continues to be stressed by the courts. Even in public law and planning related cases, ADR must be considered. All those involved in local government and planning increasingly need to consider the possibility of mediation, argues Craig Howell Williams QC.

Mediation is a means of Alternative Dispute Resolution (ADR). There is, however, no single definition of mediation. The Centre for Effective Dispute Resolution (CEDR) has a general definition as follows: “Mediation is a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution.”

Whatever the definition, mediation has particular characteristics which together serve to distinguish it from court litigation and other forms of ADR. First, mediation is normally voluntary – in most cases it takes place as a result of the parties to a dispute agreeing to its use. Secondly, it is a flexible process – there are no set rules of procedure. Thirdly, mediation is conducted confidentially – there are no minutes taken (although the outcome may be made public if the parties agree). Fourthly, the mediator is neutral – his role is to help parties to reach agreement, not to take sides, give a ruling or impose a settlement.

Mediation is a flexible tool and can be put to a variety of uses. The presence of a mediator can not only assist parties to negotiate in order to resolve a dispute, it can also facilitate dialogue in order to improve understanding between parties and build a consensus.

What happens at a mediation?

There is no fixed procedure, but a basic structure for mediation is as follows.

Before the mediation the parties will send to the mediator an agreed bundle of the relevant documents, including case summaries. Each party may send a position statement setting out what it seeks to achieve in the mediation. A mediation agreement will be signed by the parties and the mediator. This document will set out the conditions for the mediation, including terms relating to confidentiality. The mediator will contact the parties in order to explain the process, answer any questions and if necessary ask for further information.

At the mediation the parties must be well prepared to participate in the process and, normally, must have authority to settle. The litigants must be present, a lawyer or a trusted friend should attend to advise the litigant and if necessary speak for him and experts may be required in some cases to consider technical issues.

The mediator will often begin by holding a joint session, with both parties present in one room so that they can set out their positions and identify matters that they think should be discussed. The mediator will then hold private sessions with each party in order to understand better their concerns, to consider (sometimes by testing) the strengths and weaknesses of their cases, and to explore options for settlement. The mediator will encourage the parties to discuss the differences between them and to reach agreement on them. This can be done either directly in joint session or indirectly in private sessions with the mediator acting as go-between. There is also the opportunity during the mediation to have “break-out” sessions, for example for experts to discuss specific issues.

Throughout the mediation it will be the role of the mediator to create an optimistic environment for frank discussion, to ensure an efficient and fair process, to understand the issues and the imperatives that affect each party’s position, as well as to keep the momentum, with energy and drive, towards a settlement. He will always respect the wishes of the parties and, of critical importance, he will not pass on information or make offers except with the party’s instruction (matters remain confidential between a party and the mediator unless and until the party says otherwise).

If the mediation is successful, the parties will record the terms of this in writing. The result may be a binding agreement, a conditional agreement, heads of terms or a form of agreed statement.

When is mediation used?

The use of mediation in civil litigation is well established. The Civil Procedure Rules allow for the use of ADR including mediation. The courts encourage mediation in appropriate cases – See for example: R (Cowl) v Plymouth City Council [2002] 1 WLR 803; Halsey v Milton Keynes General NHS Trust [2004] EWCA (Civ) 576, and also the recent Court of Appeal case of Pennock v Hodgson [2010] EWCA (Civ) 873. (There are also the cautionary comments of Lord Neuberger of Abbotsbury MR in the Gordon Slynn Memorial Lecture 2010.) The Jackson Report on civil litigation costs has reiterated the benefits that mediation can sometimes offer in terms of cost and satisfaction. Mediation is used in a variety of circumstances, from boundary disputes to commercial litigation, and in a range of the litigation contexts, from the Upper Tribunal (Lands Chamber) to employment tribunals. There is also a recognition that, whilst mediation is not suitable in every case (for example in disputes to resolve a strict point of law), it is not to be excluded as a matter of principle from use in public law cases.

What about mediation in planning related disputes?

The government has been considering the scope for mediation in planning for many years. The Welbank studies of 2000 and 2002 (commissioned by the DETR and the ODPM respectively) found, amongst other things, that mediation could result in a reduction of appeals and improve the efficiency of the planning system. The Barker Review of Land Use Planning in 2006 concluded that mediation should be encouraged and recommended the setting up of a national planning mediation service. The Killian Pretty Review, Planning Applications: a faster and more responsive system, in 2008 concluded that greater use of mediation should be encouraged in the planning system.

In response to the Killian Pretty Review recommendations the National Planning Forum and the Planning Inspectorate commissioned Leonora Rozee OBE and Kay Powell to investigate further the use of mediation in the planning process. The report, Mediation in Planning, was published in June of last year and is recommended reading for anyone interested in the use of mediation in planning. The evidence base was extensive, including a review of literature and international experience, a local authority survey, interviews with stakeholders, a review of past cases, and consideration of 5 pilot cases. It concludes that mediation could provide an effective tool to tackle a wide range of planning issues and states that the more consensual approach which mediation involves is consistent not only with the aims of the “frontloaded” spatial planning system introduced by the Planning and Compulsory Purchase Act 2004 but also with the aims of the current government to develop neighbourhood planning as reflected in the Localism Bill. It recommends that mediation should be encouraged strongly by government by providing a policy framework, by creating capacity to allow its benefits to be realised and by establishing an appropriate regime to support the delivery of a new approach to planning system. Leonora Rozee is currently chairing the Mediation in Planning Delivery Programme to implement the recommendations in the report.

Whether or not mediation is suitable will depend on the nature of the case and the attitude of the parties. Some planning disputes will clearly not be suitable for mediation. For example, issues relating to legal interpretation cannot be settled by mediation and arguments relating to the simple choice between sites to be allocated for development are not likely to capable of successful mediation. However, the Rozee report taken together with the previous research indicates that there is significant potential for the use of mediation across a range of issues in the planning sphere, such as: planning applications, development plan documents and supplementary planning documents, design and layout, s106 obligations and infrastructure cost negotiations, pre-application consultation, conditions, neighbour objections, compulsory purchase and compensation, and enforcement.

One of the pilot cases studied in the Rozee report related to arguments about the wording of a draft policy in an area action plan. The result of the mediation was that the developer and council officers agreed between them an amended form of draft wording. Another related to an enforcement case about scrap on agricultural land. Through mediation the landowner and council officers reached agreement about future compliance. Another case study focused on mediated consultation between stakeholders involved in planning proposals for a brownfield site. The process resulted in the developer agreeing to amend the scheme and in the residents supporting the revised plan. Another case related to a claim for compensation under s237 of the Town and Country Planning Act 1990. The claimant and the acquiring authorities reached agreement on the sum of compensation (the legal arguments were complex and the case would otherwise have had to be heard in the Lands Tribunal over several days).

Mediation can assist in resolving substantial issues and can be cost effective too. It should also be emphasised that mediation is flexible so that it can be used not only in cases where a resolution of a dispute is sought but also where parties want to narrow issues, reach common ground or simply to understand opposing views better. Even the facilitation of dialogue of the building of consensus can in some cases be very advantageous.

Perceived difficulties

There are perceived difficulties, and these are referred to in the Rozee report, but they should not deter parties from considering fully the merits of using mediation in a particular case.

For example, it is said that the fact that there is a statutory framework imposing procedural constraints on local authority decisions militates against mediation. However, mediation does not obviate the need to follow the statutory code. Nor is it intended to avoid transparent lawful decision making or to negate the role of committees in determining planning applications. A local planning officer may attend a mediation, but he must thereafter report to the relevant planning committee (just as he would do following negotiation). Any agreement reached in the mediation will be non-binding and the matter will continue along its statutory path through committee or as appropriate by the local authority (but with the benefit of what has been achieved through mediation). Whilst a mediation can be confidential, where agreement is reached the outcome must be open and the reasons for any subsequent officer recommendation to committee will become public in the usual way.

Some planning mediations (eg pre-application consultation) will require the inclusion of a large number of third parties, but whilst this might present a practical difficulty it will not necessarily be a fundamental obstacle to mediation. The flexible nature of mediation means that it can be used where there are many parties involved depending on the objectives of the mediation.

There is also the question of costs – who pays for the mediation? There is currently no formal mechanism in place. Much will depend on the circumstances of the case and the incentives for the parties involved. A developer may think that the costs of mediation are worthwhile if the prospects for a beneficial planning permission are enhanced. A local planning authority may consider that mediation is worthwhile because there is a saving in costs, time and resources, so that it is in the public interest to agree contributing to the costs for mediation.

Conclusion

The considerable research that has been carried out shows that in certain circumstances mediation can be cost-effective and it can save time and money. Mediation is a flexible tool and it will be suitable for and beneficial in a variety of planning circumstances. Time and time again the government has been advised to do more to encourage the use of mediation in planning and the publication of the Rozee report serves as a timely reminder of the merits of using mediation in planning. In times of economic constraints, and in the context of the new Localism agenda, the potential benefits of mediation should not be ignored. All those involved in the planning system should consider carefully the use of mediation as an alternative means of resolution.

Craig Howells QC is a barrister at Francis Taylor Building (www.ftb.eu.com).

Recommended reading:

Mediation in Planning – A Report by Leonora Rozee OBE and Kay Powell commissioned by the National Planning Forum and the Planning Inspectorate
Planning – A Guide to the Use of Mediation in the Planning System in Scotland by Core Solutions in association with the Scottish Government

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