Mediation or facilitation?

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Mediation

Mediation can help you to clarify issues, resolve
conflicts and reach agreement without always needing
to go to a Court or Tribunal.  Our Environmental Mediation
Booklet is available by Clicking Here [180K]

Mediation is an option before you get anywhere near filing proceedings in Court.  If there are many parties with similar issues, a mini mediation can be arranged with them.

A mediation can be arranged to occur within 2 or 3 weeks of the need arising and still allow the parties to exchange information and to develop options prior to the day of the mediation. 

Where amendments to development plans or further technical information are needed, the mediation can be adjourned to another date.  The flexibility to have up to three sessions is helpful. 

A separate mediation session can also be used to assist experts work through a dispute. 

Mediation Sessions

Our mediation practice promotes involving all the parties in preparing for the mediation and coming to the mediation session with some positive options to discuss. We have a 20-minute video for clients to see before the day of the mediation. Our research indicates that the video is helpful.

Pre-mediation conferences can an important tool in scoping the mediation process. These are usually held separately with each party.

During the mediation, documents and conversations with the Mediator in private session remain confidential, unless and until that party gives permission to the Mediator to disclose the information to the other parties.

At the joint sessions during the mediation the parties may distribute documents which will help the process. Exchanging documents before the mediation is encouraged.

A neutral venue should be selected.

On the day of the mediation session, the Mediator will commence with an opening statement, briefly explaining how parties have got to that stage and congratulating them on selecting the mediation option. This is followed by an opening statement from each of the parties. These statements can be oral or partly written. In the pre-mediation stage, the Mediator will have anticipated the content of the opening statement.

We encourage each party to suggest, as part of the opening statement, some options for resolving the dispute at that stage. Other options may develop during the mediation.

The Mediator makes a summary based on the opening statements of each of the parties. This leads to the identification of particular issues, and setting an agenda. Often a question and answer session will form part of this process. Once the parties have put their concerns on the table, the issues can be explored and focus is then on future solutions.

Once the first joint session has been conducted, the opportunity arises for private sessions for each party with the Mediator. This usually will include any advisers who are with the party. It is important that the person who attends the mediation is authorised to settle the dispute. If this is not practical, a telephone contact for the ultimate decision should be available. When agreement is reached at mediation, it is important to record that and have it signed by the parties.

In separate private sessions, the issues can be further explored. The facilitation process may involve the Mediator moving from one private session to the other to keep the discussion moving.

Reconvening a joint session (or a number of joint sessions) during the mediation process may also be an option. However, that is a matter of judgement for the Mediator at the time. Usually, another joint session occurs towards the end of the negotiation process when all of the parties have had the opportunity to explore, with their advisers, the best available option to them to resolve the matter without recourse to litigation.

It is often said “expect the unexpected” during the mediation process. This emphasises the flexibility of the process.

The exciting part of mediation is its ability to allow the parties to develop options which are not always able to be achieved in the win/lose court situation.

We ask the parties how much time they have available as part of the pre-mediation.

The solutions may not be obvious at first. Or they may not be obvious to everyone. The ADR process should look forward and find options that will lead to a solution. The challenge for all those involved in ADR is to have the parties move forward.

Successful mediations (which include a narrowing of the issues if the whole dispute cannot be resolved) usually result from:

·  Identification of common ground between the parties.
·  Isolation of the issues.
·  Resolution of issues to add to the common ground.
·  A focus on the real issue in dispute.
·  All of the parties reaching an understanding of each other’s needs and interests.
·  The parties’ desire to have an ongoing harmonious relationship.
·  The parties feeling they have had an opportunity to be heard and that they have been heard.
·  The parties feeling that they are in control of the process.

The Land and Environment Court Working Party recommended that “Councils are encouraged to make appropriate delegations, including the power to negotiate and settle matters, so as to enable their representatives to participate effectively in alternative dispute resolution facilitated by the court (that is, preliminary conferences and mediation).”

The win/lose adversarial process may be personally and socially less satisfactory than participative, collaborative problem-solving that reconciles the interests of all involved persons.
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Facilitation

This is another form of early intervention.

The concept of a Supervising Facilitator should be considered for those Development Applications acknowledged as complex or those applications that get bogged down during the assessment process. This may well be an ongoing appointment where the Facilitator comes in from time to time to resolve disputes when each arises and before the parties becomes entrenched or the issue becomes a stumbling block. With many aspects and fields of expertise there may be more than one occasion when a third-party neutral (the Facilitator) can help keep the assessment process moving.

A cultural shift will be required for this consensual process to work effectively and/or efficiently. Statutory intervention may be necessary if the idea is not voluntarily taken up.

What is said here is in addition to other available information on Assisted Dispute Resolution (ADR) for planning and environment disputes.
It is time for all Local Governments to develop ADR Planning Scheme Policies.

An early and real chance for submitters to be heard will reduce the number of appeals involving submitters.

The examples that follow are not exhaustive and they relate to Queensland legislation but can be adapted to other jurisdictions.

If at a prelodgement meeting with the Council it becomes apparent that the proposals of the Applicant and the response of the Council are not the same, then mechanisms need to be put in place then to allow for those matters to be resolved.  Before or immediately after a Development Application has been lodged the appointment of a Supervising Facilitator (by written agreement with the costs shared equally between the Applicant and the Council) allows for disputes to be discussed with the assistance of a third-party neutral person and keep the process moving so that the assessment of the application does not get bogged down.  This may take the form of discussing what should be included in an Information Request and what response should be forthcoming from an Information Request.  This is a creative approach to problem solving that needs to be seriously considered.

A second example relates to a Development Application that attracts significant debate.  A significant number of adverse submitters or serious disputes raised by submitters should call for the intervention of the Supervising Facilitator to assist in better defining what the issues of concern are and how they might be resolved. If the Supervising Facilitator has already been appointed then, subject to any new parties agreeing, the mediation process is reconvened.

Under the Integrated Planning Act 1997 (Qld) submissions in favour can be made. It may be necessary to resolve or better define the concerns of the adverse submitters and the submitters in favour.

Once submissions have been lodged there are disputes and points of conflict. It would be useful for the Council to have available to it prior to the decision a better understanding of what is involved with the submissions.  Are they submissions which should lead to an amended proposal?  It would be of use to the Applicant to know that as well.  By bringing in the third-party neutral person (the Supervising Facilitator) the 3 parties (the Submitters, the Applicant and the Council) have an opportunity of working through the disputes so that amendments can be made to the Development Application and plans or certain conditions be imposed on an approval. 

On the other hand, if the application is to be refused more precise reasons for refusal can be formulated during this process. 

Once the Council has made its decision, the Supervising Facilitator may well be called in again, or for the first time, to see whether or not any of then current disputes can be resolved without the necessity of having to refer the matter to the Planning and Environment Court by way of appeal. 

If an appeal is lodged to the Planning and Environment Court by a Submitter, then the Supervising Facilitator should be called in immediately to help resolve the dispute or at least formulate it as a clear and precise set of issues for the Court to hear and determine.  If this can be done within the first month of the appeal being lodged, that will expedite the determination of the appeal.

If the appeal is against conditions and there are only 2 parties to the appeal (the Applicant and the Council) then the use of a Supervising Facilitator would be beneficial in helping to resolve those matters quickly or at least refining what the real dispute is with respect to conditions so that the matter can proceed through the Planning and Environment Court process as soon as reasonably practicable.

Many different tools are needed to be able to assist everyone, including State and Local Government, through the statutory maze. Third party neutral persons are essential for time and money reasons as well as for developer, government and community satisfaction. The concept of the Supervising Mediator does not require legislative intervention. It can be done by agreement now. All that is needed is the willingness of all participants to work positively and proactively towards a genuine improvement in how we deal with the development process and environmental issues. It is recognised that a cultural shift is required, but that is not impossible to achieve.