In December the Network was delighted to respond to the Scottish Government’s consultation on the future of the planning system. We are firmly of the view that the review offers an opportunity to radically improve the system in Scotland. A key factor in achieving this would be for Scotland to become a leader in the use of mediation in planning. The discussions which took place in the process of preparing the Community Empowerment (Scotland) Act 2015 highlighted the desire for more effective local conversations within communities and the greater use of mediation would support and complement this approach.
Key Benefits of Mediation in Planning
There are many benefits which can be gained from the wider use of mediation in the planning process, including:
- Flexibility: Mediation can provide the opportunity for solutions to be developed that may not be possible in an adversarial system.
- Efficiency: The effective use of mediation, particularly as part of pre-consultation processes, has the potential to speed up the process.
- Ownership: The greater involvement of the community in the process gives the potential for wider community ownership of developments.
- Maintaining Relationships: The opportunity to retain or rebuild trust where stakeholders are likely to meet again.
- Accessibility: Mediation ensures that different voices are given the same air time and encouraged to contribute.
- Shared Learning and Capacity Building: By equipping people with mediation skills, communities can benefit in the longer term.
- Creativity: When people are guided in using mediating ways to resolve their differences it can frequently spur a third way from which all benefit.
The main impact of mediation would be in changing the dynamic of the early stages of planning discussions. By focussing on the interests of all those involved, it may be possible to better engage communities in the decisions that affect them. This can take place prior to getting into the quasi-legal process that tends to push people and organisations apart, as being for or against proposed developments. Ideally, therefore, mediation would be implemented as early in the process as possible, with the earliest stages of development planning being the ideal starting point.
The International Picture
In examining the changes that could benefit the Scottish planning system the Network believes that international evidence shows that mediation can be a positive integral part of the system. Below, a number of examples of the use of mediation in planning in different jurisdictions are outlined.
One of the biggest planning mediation procedures achieved in Europe was a five‐year mediation to resolve conflicts around proposals for major infrastructure expansions for Vienna International Airport. The process involved over 60 representatives from 50 different groups, and dealt with a wide range of disparate issues.
A balance was struck that (a) helped protect affected residents and limited future noise pollution to minimise the area of affected residents, while (b) supporting economic growth by allowing airport expansion.
New Zealand has a number of specialist courts, one of which is the Environment Court which deals with substantial matters that are of public interest. Mediation and ADR have become increasingly important aspects of the Court’s work including policy and planning.
Mediation and ADR are used to encourage settlement, narrow and settle issues within disputes, and reduce complexity in advance of a hearing. “Success” is therefore not restricted to finding a complete solution but to supporting and simplifying later stages in the process and making court hearings more efficient. The number of mediations rose from six in 1993 to 449 in 2006‐7.
In South Africa the National Land Reform Mediation and Arbitration Panel operated from 1995 – 2000 and handled 225 mediations. The terms of reference were to establish a national panel of mediators, trained and accredited, as a resource in preventing and resolving land disputes. Interventions aimed to promote consensus, facilitate fair community participation and ensure efficient use of financial and human resources. The experience showed that mediation can help seemingly intractable opponents find common ground or common solutions. It also showed that successful mediation can have long-lasting positive effects on the relationship of the key protagonists.
In summary the international examples above show the potential for great benefits from the use of mediation in the planning system. Mediation offers a way for everyone involved in a planning decision to have an equal opportunity to express their view and to contribute to planning decision-making. The mediator(s) will offer a chance for different groups to express their views and work together to find any areas of consensus. This would directly counteract the power imbalances (real or perceived) which currently face the Scottish planning system. This would also help to foster good relations between groups and be a step towards a more collaborative and inclusive future planning process.
Possible alternative approach to the last paragraph
These international examples demonstrate the potential benefits from the use of mediation in the planning system. While they also show that other countries have been the pioneers it is not too late for Scotland to be an early adopter and innovator by using mediation to counteract power imbalances (real or perceived) in the Scottish Planning system. Taking the first steps now would be a step towards a more collaborative and inclusive future planning process with community empowerment and mediating ways at its heart.