Mediation in planning: a bright new hope?William Orbinson QC LARTPIFor EPLANIJune 2012

Mediation: what has it ever done for us?

Mediation: what is it?

“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”

- Guide to Mediation in Planning, Scottish Executive, March 2009

Mediation: what is it?

Not a bar to litigation

Not arbitration: the mediator makes no determination

Not about deciding who is right and who is wrong

Voluntary, facilitated discussion led by a neutral third party

Exploration of the situation - active listening, open questioning

Reframing of the issues to allow constructive progress

Active search for a mutually acceptable solution, or at leastnarrowing the issues in dispute

Thinking outside the box

Mediation: the advantages

Confidentiality

Without prejudice – “nothing is agreed until everything is agreed”

Speed

Takes out the heat, allows cool heads to prevail

Parties can choose mediator

Flexibility, availability of wide-ranging outcomes

Relatively cheap

Protects - sometimes enhances - existing relationships

Mediation: when is it unlikely to work?

“You cannot shake hands with a clenched fist”

- Indira Ghandi/Golda Meir

But

“You can take a horse to water but whether it drinks is another thing entirely. But a horse, even a very obstinate horse, is more likely to drink if taken to water. We shouldbe doing more to encourage, and perhaps direct the horseto go to the trough. The more horses approach thetrough the more will drink from it”

- Sir Anthony Clarke, Master of the Rolls

Mediation: when is it likely to work?

Mediation: when is it likely to work?

Mediation: some examples

Retail – retail development of site outside district centre boundary and identified for mixed use

Enforcement – unauthorised storage of non-agricultural items and scrap

Education – siting of a primary school

Residential – controversial development on a brownfield site

Mediation in planning: high level encouragement

Lord Chancellor’s Pledge, April 2002 – to use mediation to resolve disputes with government departments

Reiterated by NI Justice Minister, David Ford in respect of all NI departments, including the PAC sponsor department

“Mediation ... is recommended to resolve differences between local communities and developers in planning cases”

– Lord Chief Justice Declan Morgan, The Way Ahead, 21 October 2010

Mediation in planning: what are you doing here?

Order 1 Rule 1A & Order 62 Rule 10, Rules of the Court of Judicature (NI) 1980 provide for mediation in all forms of High Court proceedings, including Judicial Review

Halsey v Milton Keynes NHS Trust (2004) 1 WLR 3002Rolf v De Guerin (2011) EWCA Civ 78 – a warning from the Court of Appeal:

“A party who refuses even to consider whether a case is suitable for ADR is always at risk of an adverse finding at the costs stage of the litigation, and particularly so where the court has made an order requiring the parties to consider ADR”

Even where the party wins!

Mediation in planning: what are you doing here?

Cowl v Plymouth City Council [2011] EWCA Civ 1935

Court of Appeal emphasised the “paramount importance” of avoiding litigation by using ADR in public law disputes

“Courts should scrutinise extremely carefully applications for judicial review ... The courts should then make appropriate use of their ample powers to ensure that the parties try to resolve the dispute with the minimum involvement of the courts”

Mediation in planning: conclusion

A useful tool in planning disputes

Strong Ministerial and Judicial impetus

Cost-effective to use, risky to reject