Abstract
Land use planning both causes and sometimes helps to resolve land
use disputes. While land use planning in North America initially focused
on finding the most technically efficient method of segregating land
uses, its emphasis has shifted toward a concern for fairness in the
allocation of public resources. This shift has led to an increased
demand for stakeholder participation in decision making, thereby
stimulating some conflicts but also offering a basis for the effective
resolution of land use disputes. Consensus building, or mediation, as a
method of resolving land use disputes offers a strategy for balancing
technical considerations, broader political concerns about fairness, and
conflicting stakeholder interests.
Based on the results of a study of efforts to mediate land use
disputes in 100 communities around the United States, this article
reviews the historical context in which land use decisions have
traditionally been made as well as the relevant literature produced by
supporters and opponents of consensus building techniques like
mediation. It is hoped that this proves instructive to those who have to
make decisions about how best to handle land use disputes.
Resume
La planification en matiere d'utilisation des torres peut
provoquer des litiges mais peut aussi parfois aider a les resoudre.
Alors que la planification en matiere d'utilisation des terres en
Amerique du Nord etait au depart axee sur la decouverte des methodes les
plus efficaces techniquement pour distinguer les differentes
utilisations du territoire, la priorite est maintenant une certaine
preoccupation envers l'equite en matiere d'allocation des
ressources publiques. Ce deplacement a provoque une exigence de
participation accrue des intervenants a la prise de decisions,
entrainant ainsi certains differends mais offrant egalement une base
pour une resolution efficace des litiges en matiere d'utilisation
des terres. La recherche de consensus, ou mediation, comme methode de
resolution des litiges sur l'utilisation des terres offre une
strategie permettant d'equilibrer les considerations techniques,
les preoccupations politiques plus larges au sujet de l'equite, et
les interets conflictuels des intervenants.
En se fondant sur les resultats d'une etude sur les efforts de
mediation des litiges en matiere d'utilisation des terres dans 100
coilectivites des Etats-Unis, les auteurs de l'article examinent le
contexte historique dans lequel les decisions en matiere
d'utilisation des terres etaient prises par le passe, de meme que
la documentation pertinente redigee tant par les adeptes que par les
opposants des techniques de creation de consensus telle que la
mediation, lis esperent que cet examen se revelera utile pour ceux qui
doivent prendre des decisions sur la meilleure maniere de resoudre les
litiges en matiere d'utilisation des terres.
Key Words:
Land use planning, land use disputes, mediation, consensus
building, dispute resolution
Introduction: Land Use Planning and Dispute Resolution
In the face of conflict, local officials, especially land use
planners, struggle to find ways of balancing the goals of environmental
protection and economic development while also protecting private
property rights. In the United States, many such disputes lead to
litigation, but the courts are not interested in reconciling underlying
disagreements, and judicially mandated outcomes usually leave someone
dissatisfied. Members of the general public become frustrated, too,
because they feel they have no role in determining how local land
resources should be allocated when the courts are involved. Furthermore,
the cost of land use disputes, especially those that end up in court,
can be staggering. AII of these concerns have fueled the search for
better methods of resolving land use conflicts.
Historical Background
Since the beginning of the twentieth century, the field of urban
and regional planning has undergone several key transformations. Most
have revolved around redefining who determines the goals that master
plans are designed to achieve. While master plans were popular for many
years, they failed to take account of important socioeconomic,
environmental, and political concerns. They did not address issues of
affordability, pollution prevention, or the implied unfairness of
distributional "gains and losses" that kept certain groups in
poverty. They also presented the city as it was meant to look in an
idealized form in the future, without indicating how this ideal state
would be achieved (Branch 1983: 28). Since the late 1950s, planners have
become less concerned with the efficient allocation of land from a
purely technical perspective, and more concerned about fairness and the
ways that land use allocations impact the quality of life for various
groups. These concerns are linked directly to the demand for increased
public participation in land use decision making.
Technocratic and Advocacy Planning Models
Technocratic planning is dominated by concerns about economic
efficiency in the use of space. It specifies well-organized, centrally
managed solutions to urban land use problems aimed at providing the
greatest benefits to the population and ensuring overall economic
vitality. Planners are presumed to have the education and experience
needed to find solutions to urban problems and to be free from any
corrupting political influences that might otherwise bias their
judgment. This model also assumes that planning agencies have the
autonomy to set policy, of at least make recommendations to the elected
city council, as well as a role in implementing them.
The advocacy model of plannin9 emer9ed in reaction to the failures
of the technocratic model's approach to urban renewal during the
late 1950s and early 1960s. Advocacy planners aim to redistribute
resources more fairly, increase social equity, and improve quality of
life for minority groups and the poor (Burchell and Stemlieb1978: 69).
They attempt to reshape the political processes through which land use
decisions are made, by such efforts as blocking urban renewal and
working to protect poor and working class neighborhoods.
The concept of advocacy planning hinges on the notion that, as in a
civil lawsuit, there are at least two sides using expert advisors to
pursue their conflicting points of view. Supporters of advocacy planning
assert that under the technocratic model plans that seem to be directed
toward the "common good" are, in reality, meant to serve only
those in power. Accordingly, advocacy planners seek to provide the
expertise necessary to empower the interest groups to represent
themselves at each step in a local decision-making process.
Whereas a few insiders make technocratic planning decisions,
advocacy planners believe in open forums where planners and community
groups can confront traditionally powerful interests. This planning
model was strongest in the United States during the War on Poverty of
the 1960s, when the disparities created by urban sprawl began receiving
greater attention from the federal government. While addressing many of
the weaknesses of the technocratic model, advocacy planning has its own
drawbacks. It raises questions about the ability of (mostly white)
advocacy planners to identify with the real needs of (mostly minority)
groups they seek to represent; many of the planners are more interested
in short-term improvements than long-term solutions to persistent land
use problems. Furthermore, advocacy planners actually work with only a
small fraction of their target constituency, resulting in plans that do
not always represent neighborhood-wide views. Project plans based on the
advocacy model have not always made the best possible use of technical
information and analysis to ensure their effectiveness. As a result,
advocacy planning often boils down to nothing more than a contest among
interest groups to determine whose preferences will prevail (Susskind
and Ozawa 1984: 9).
Stakeholders such as public agencies, private developers,
issue-oriented advocacy groups, and community residents continue to
disagree on whether technocratic efficiency of political advocacy should
be given priority. In addition, all of these voices now have even
greater opportunities to be heard through public participation
requirements, open meeting laws, and related right-to-know requirements.
Few people would argue that increased participation has been detrimental
to the public good.
Confronted by escalating conflicts whenever land use development of
resource allocation decisions must be made, many planners are turning to
a third planning model based on consensus building and mediation. This
"mediation model" offers a strategy for resolving land use
disputes and channeling public involvement in more productive ways.
Emergence of the Mediation Model
Whereas technical planners tend to emphasize efficiency and
advocacy planners seek to represent the political interests of a
particular group, planners working as mediators seek to resolve
disagreements and build consensus. This process usually requires the
participation of spokespeople for each stakeholder group, the
involvement of a professional facilitator or mediator, and the
negotiation of informal yet written agreements that can be linked with,
or incorporated into, more formal governmental processes.
The Mediation Model
The purpose of the mediation model is to ensure that the allocation
of land uses takes place in a way that is viewed as fair by all
stakeholders and that all possible joint gains are incorporated into a
technically feasible agreement that can be implemented easily. Using
this model, planners seek to integrate competing interests with concerns
about process and transparency. The result is a highly structured
problem-solving process in which all stakeholders learn about each
others' interests, challenge previously accepted assumptions, and
develop strategies aimed at maximizing mutual gains.
Facilitators and Mediators
The mediation or consensus building process does not require the
use of a professional facilitator of mediator, but their participation
is often necessary. In the simplest form of consensus building, the
facilitator keeps the discussion on a useful course and fosters an
environment conducive to joint problem solving. Mediators have greater
substantive involvement as they help the parties move from a zero-sum
mind-set to integrative bargaining. Despite taking a large measure of
responsibility for the quality of the agreement that emerges, the
mediator must remain absolutely neutral.
Key Steps and Opportunities
The mediation model can be used in many types of land use disputes,
including disagreements sparked by facility siting, comprehensive
planning, growth management, environmental clean-up, natural resource
management, and infrastructure design. Generally, even the most complex
land use disputes can be transformed into opportunities for increased
understanding of other stakeholder interests. By following an
established process, creative negotiators can almost always find trades
that will lead to outcomes that are better for all parties than no
agreement. (1)
Step 1: Convening Stakeholders
First, stakeholders must be brought together by an agency convener,
often a public official in a group directly affected by the dispute of
an organization with regulatory responsibility. Once the key
stakeholders have agreed to try to work together, a neutral party
usually prepares a written conflict assessment summarizing the concerns
of all the relevant parties in their own terms (based on confidential
interviews).
After the stakeholders have reviewed the conflict assessment, an
organizational meeting is convened to consider the neutral's
recommendations and to determine if a consensus building process should
indeed be pursued. The decision depends on the nature of the issue, the
relationships that exist among the parties, procedural or legal
constraints, and the willingness of the parties to proceed. To be
credible, a consensus-building group must include appropriate
participants representing the full range of stakeholder interests.
Step 2: Clarifying Responsibilities
The participants must ratify a draft agenda and set ground rules
for future meetings. This may include: (a) the rights and
responsibilities of participants; (b) behavioral guidelines; (c) rules
governing interaction with the media; (d) decision-making procedures;
and (e) strategies for handling disagreements and ensuring
implementation of an agreement, if one is reached. It is crucial to keep
a record of the key points of agreement and disagreement. Consensus
building processes should be transparent and open to scrutiny by anyone
affected by the group's efforts.
Step 3: Deliberating
This step helps participants agree on the information they need to
collect andhow gaps or disagreements among technical sources will be
handled. Participants are asked to begin envisioning and articulating
solutions to the land use dispute at hand. It is important for
stakeholders to "focus on interests, not positions." (2)
Brainstorming can be used to expand the range of proposals for each
agenda item and to generate packages that incorporate trade-offs among
items. The goal should be to create as much value as possible and then
to ensure that whatever value is created is shared in ways that
encourage effective relationships and successful implementation. The key
is to avoid the mistake of trying to complete discussion on complex
items one at a time. When a written agreement emerges, it ensures that
the parties have understood each other and are clear about the
commitments they are making.
Step 4: Deciding
Following the identification of options, participants can begin the
process of crafting a final agreement. A list of objective criteria, or
indicators, by which the acceptability of an agreement must be gauged
gives parties a tool to assess various packages that all parties can
accept. Most consensus building groups seek unanimous agreement within
the time frame established at the outset of the process. If unanimity
cannot be achieved, groups often settle for an overwhelming level of
support as long as every effort has been made to meet the most important
concerns of every key group.
Step 5: Implementing Agreements
It is extremely important to devise a means of holding the parties
to their commitments. Some agreements can be nearly self-enforcing while
others ate enforceable only by law. Often, the results of a consensus
building process are often advisory and must be ratified by a set of
elected of appointed officials.
Claims of Supporters and Opponents of the Mediation Model
Consensus building techniques such as mediation have been used for
almost two decades to resolve land use disputes in the United States
(3). To date no universally agreed upon method has been developed to
test consensus-building techniques against more traditional methods of
resolving land use disputes. Most published studies have attempted to
determine whether mediation costs less, saves time, produces settlements
more often, and ensures higher compliance rates4. The quality of
mediated settlements has been overlooked of avoided, as has the question
of whether or not the process has improved long-term relationships among
the participants.
The Claims of Supporters
Supporters of the mediation model claim that research has shown
that these techniques can produce outcomes that are more satisfying to
the parties and leave them in a better position to deal with their
differences in the future. Indeed, experience with public dispute
resolution in America indicates that consensual approaches to handling
resource allocation conflicts often yield outcomes that are fairer and
more stable than traditional (particularly adjudicatory) methods.
Some of the benefits claimed by supporters are that mediation:
* avoids problems caused by litigation, such as the threat of high
legal lees and protracted court cases and the creation of a hostile
atmosphere;
* encourages better communication as meeting times are mutually
agreed upon and stakeholders can engage in actual conversation and
negotiation, allowing them to clarify interests and carry on sustained
dialogue;
* offers opportunities for joint gains, especially when multiple
issues are addressed;
* builds trust and establishes long-term relationships among
parties;
* fosters more efficient use of resources and better compliance;
* resolves underlying issues that are not normally considered
during traditional adjudicatory proceedings;
* develops a shared base of knowledge and technical information,
allowing stakeholders to formulate reasonable, creative, credible, and
longer-lasting solutions that everyone understands; (5)
* increases confidence in government officials as they are more in
touch with the public;
* empowers disadvantaged groups as the process offers opportunities
for information sharing that are not available via conventional decision
making and allows them to enhance their capacity to influence public
decisions; and,
* offers greater overall satisfaction with the decisions that are
made as "all gain" solutions are created.
Although it is not realistic to expect that all land use disputes
can be resolved using mediation, in its various forms, this approach has
the potential to create substantially better short- and long-term
results for all stakeholders. Most of all, proponents of the mediation
model refute the criticism that it is no more than an extension of
traditional methods of land use decision making, resulting in
"lowest common denominator" outcomes. When the right
problem-solving context is created, all sides can find substantial value
from the process.
The Claims of Opponents
The detractors of mediation argue that its benefits have been
greatly exaggerated, and that it is merely an extension of traditional
adversarial politics, rather than an alternative to them (Amy 1987: 68).
Opponents make the following arguments against mediation.
Their primary arguments are that mediation:
* is neither faster nor less expensive than traditional processes;
the cost of preparing for negotiation may be as high as or even higher
than the cost of preparing for some types of litigation (Bingham 1986:
xxvi), especially when negotiations involve complex legal of scientific
issues and parties may have to hire scientists, economists, and other
experts to assist them;
* cannot alter stakeholder competitiveness or their fundamental
power relationships, causing some more powerful parties to not negotiate
in good faith, or resort to other, more traditional means if they do not
like a settlement (Amy 1987: 228, 80);
* results in "lowest common denominator" agreements which
are neither precedent setting nor definitive;
* lacks enforceable and nationally recognized codes of ethics; and,
* must ultimately be litigated if an agreement is considered to be
unfair or legally inappropriate.
Until recently, there has been insufficient evidence to test the
claims of the supporters and the opponents of the mediation model. In
the following section, we present the first comprehensive analysis of
the experience with land use mediation in the United States over the
last ten years.
An Analysis of Recent Experience with Land Use Mediation
Overview of the Consensus Building Institute's Study
Increasingly, public officials are turning to professional neutrals
(facilitators and mediators) for assistance in resolving difficult land
use disputes. The Consensus Building Institute (CBI) undertook a study
of mediated land use disputes to evaluate its use to help public
officials decide whether or not to use mediation to resolve land use
disputes. (6) The CBI study is based on interviews with participants in
100 cases in which a professional neutral assisted in the resolution of
a land use dispute.
The 100 cases ultimately selected were stratified to ensure that
they represented all regions of the United States--Midwest, North,
Pacific Coast, Rocky Mountains, and South--as well as the six major
types of land use disputes (comprehensive planning, development and
growth, environmental clean-up, facility siting, infrastructure design,
and natural resource management). Two-thirds of the cases were
considered by the participants to have been settled and one-third were
unsettled. (7)
The study focused on overall attitudes toward the mediation model
as expressed by all respondents. Interview results were analyzed by
category of respondent such as government official, proponent, and
opponent. CBI's research attempted to answer the following
questions:
1. How satisfied were stakeholders with both the land use mediation
process and the outcome?
2. Were underlying issues resolved and relationships improved in a
way that helped to avoid subsequent disputes?
3. Did the mediation model cost less and/or take less time?
4. How important was the role of the mediator?
Study Findings
1. How satisfied were stakeholders with both the mediation process
and its outcome?
Overall views of the process: 84.5 percent of participants, not
including the mediators, had a positive view of mediation: 45.5 percent
of participants viewed the process as very favorable and 39 percent as
favorable (Figure 1). Even in the cases that were not settled, 28
percent of respondents viewed the process as either very favorable (9
percent) or favorable (19 percent) (Figure 2).
Interests served: Additionally, of respondents who participated in
cases that were settled, 92 percent believed that their own interests
were well served by the settlement and 86 percent believed that all
parties' interests were served by the agreement reached.
Rating of settlements: Of the respondents who stated that some sort
of settlement was reached:
* 77 percent stated they reached ah agreement regarding how to
implement or monitor their settlement.
* A total of 75 percent thought their settlement was implemented
very well (41 percent) of sufficiently (34 percent).
* 69 percent thought their settlement was more stable than what
they probably could have reached through another process such as
litigation or administrative appeal; 23 percent said they did not know.
* 88 percent stated that their settlement was creative: that is, it
produced the best possible outcome for all sides given what they knew
after the mediation.
Progress attained even without settlement: The high level of
satisfaction on the part of respondents in unresolved cases most likely
stems from the fact that 65 percent believed that the negotiation
process produced significant progress toward the resolution of the
conflict. The respondents stressed that, even when a complete settlement
was not achieved, some issues were resolved, relationships were
enhanced, political and interpersonal attacks were avoided, public
confidence in the working of government was increased, and useful
information was gathered that made it easier to define and understand
the questions that were unresolved.
2. Were underlying issues resolved and relationships improved using
mediation?
The respondents in the unsettled cases identified four major
benefits of mediation that helped them make significant progress in
their cases, even though the dispute was not resolved completely:
* Achieved minor agreements (33 percent). Even in the most
difficult situations, minor or partial agreements were reached on which
future negotiations could be based;
* Improved relationships (23 percent). In some cases, improved
relationships allowed the parties to: avoid misunderstandings because
communication had been enhanced; rework their agreements at a later time
when new information or new circumstances arose; or avoid subsequent
disputes, or resolve them more easily, because the parties had a new
model of how to work things out and a higher level of trust.
* Clarified other stakeholders' interests (22 percent).
Participants became more aware of both their own and other
stakeholders' underlying interests, and as a result had a better
understanding of what was required to reach an agreement;
* Increased knowledge of the issues (12 percent). Through the
sharing of information and joint research, stakeholders developed a
clearer understanding of the problems and avoided technical battles that
so often obscure underlying disagreements.
3. Did the mediation model consume less time and money than
traditional processes?
The researchers asked all respondents to compare the time and cost
of the mediation with what they thought would have been required to
resolve the same dispute using traditional adjudicatory appeals. While 5
percent of interviewees stated that the negotiation process took more
time and cost more money, 81 percent said they finished the negotiation
with the impression that it consumed both less time and less money
(Figure 3).
Although some of the disputes in the study required the
investigation of complex legal and scientific issues that had real
costs, the central requirement in the majority of cases was merely that
the participants sit down and listen to what others had to say.
Nevertheless, responses to this question did vary by type of dispute.
For example, a smaller percentage of respondents involved in
infrastructure design disputes believed that mediation required both
less time and money than more conventional processes (64 percent) than
did respondents in any other type of dispute.
4. How important was the mediator?
When asked whether or not the parties thought they could have
reached an agreement without the assistance of a professional neutral,
80 percent of all respondents answered "no." In a related
question, 85 percent of all respondents stated that the mediator was
either "crucial" of "important" to achieving
whatever level of agreement was reached among the parties. This
percentage did not vary much by either the role of the respondent or the
type of dispute. Even in cases that were not settled, 33 percent of
respondents stated that the mediator was "crucial" or
"important" to the overall process (Figures 4 and 5).
Mediators made invaluable contributions by:
* employing techniques that assisted the stakeholders in overcoming
an impasse which precluded them from resolving the dispute on their own;
* discovering underlying interests that were concealed by the
inability of the parties to deal with each other effectively;
* managing the interaction of the stakeholders to ensure that all
parties had both ah opportunity to express their views and the
responsibility to listen to what others had to say; and
* facilitating joint fact-finding.
Study Summary
Most respondents had a positive view of mediation, as indicated by
their 86 percent very favorable/favorable assessment. Even when cases
were not settled, significant progress was often made. Moreover,
neutrals were generally viewed by stakeholders as having made
"important," if not "crucial," contributions to
either the resolution of the dispute of the improvement of the
conditions that surrounded it. Finally, mediation appeared to cost less
money and take less time.
The study results also indicate that not all disputes are
appropriate for mediation. When asked under what circumstances mediation
should not be utilized, respondents answered:
* when setting a precedent is important;
* when participants do not recognize each other's rights;
* when a complete stalemate has been reached;
* when payment for the process is coming from only one side; or
* when the process is only being utilized to delay any action or to
create the illusion that something is being done.
As a general rule, the success of mediation relies on the
disputants' commitment. A mediator cannot force any party to accept
a settlement. Moreover, failure to follow through on promises made
during a negotiation can result in the disintegration of trust and the
initiation of bitter subsequent conflicts. This is more likely to occur
if one or more parties feel coerced or tricked into accepting an
agreement.
If the parties involved in a dispute are truly committed to
implementing a negotiated agreement, then "the combination of the
mediation session itself, the fact that an outside party is bringing the
parties together, and the mediator's incentive to achieve
settlement can combine to overcome inertia and move the case to
settlement" (Sipe 1998: 282). In such situations, the mediator can
make a critical contribution.
Lessons From the Field: Obstacles and Successes in Land Use
Mediation
Obstacles to Mediation
The CBI study identified three main sets of obstacles to achieving
a mediated settlement in land use disputes: tensions among stakeholders,
procedural obstacles, and substantive obstacles.
Tensions among Stakeholders (52%)
Interpersonal problems among the stakeholders, such as personality,
attitude, and other behavioral tensions often impede effective
negotiation. Within this category, "distrust" was reported
with the greatest frequency (15 percent), with "entrenched
positions" a close second (12 percent). To avoid these problems, it
is very important to establish ground rules and create an atmosphere in
which parties can deal with their differences.
Procedural Obstacles (28%)
Almost one-third of responses to questions about the management of
the mediation process were related to procedural concerns. Some were a
direct outgrowth of the fact that the stakeholders had no prior
negotiation experience and were confused about their role and about what
the process was intended to achieve. Additionally, disputes arose among
stakeholders who believed in traditional decision-making processes and
those who championed the idea of a mediated process. These situations
highlight the importance of explaining the goals of the process and the
roles that the various stakeholders and neutrals prior to the initiation
of negotiations.
Substantive Obstacles (20%)
Although substantive land use problems made up a total of only 20
percent of the obstacles enumerated by survey respondents,
"technical planning issues" accounted for more than half of
this total. Land use planners rely on technical jargon and abstract
concepts that often act as barriers to entry for interested lay people.
Thus, it is important for those managing a consensus building process to
ensure that all stakeholders understand the technical issues involved.
The Policy Debate
Interest in mediation continues to grow, spurred on by the
increasing supply of experienced mediators, growing familiarity with
dispute resolution techniques, and increased legitimization of consensus
building via laws, regulations, and state programs offering dispute
resolution services.
For planners, in particular, mediation offers an approach to
dealing with increasingly complex land use issues and a growing number
of stakeholder concerns. The question is, if land use disputes should be
settled using mediators, what does that say about the role of planners
and planning? Indeed, what is the role of other stakeholders such as
elected officials, public agency employees, the business community,
local activists, volunteer planning commissioners, and the general
public in consensus building efforts?
The Role of Mediation in Land Use Planning
Several questions remain unresolved about the use of the mediation
model in land use planning situations. To what extent can mediation
enable a shift from efficiency to fairness, of to assist stakeholders in
resolving their differences? Should land use planners or other public
officials mediate local land use disputes, or should mediation services
be provided primarily by outside neutrals? What kinds of regulations, if
any, ate needed to ensure an appropriate role for mediation in land use
disputes?
Use of the Mediation Model
The mediation model as a tool to resolve land use disputes emerged
as a natural outgrowth of the shifting demands on land use planners in
the 1990s to resolve disagreements and build consensus. The ultimate
purpose of this model is to ensure that land use decisions are made
fairly and that all possible joint gains are incorporated into
technically feasible and implementable agreements.
Local planners often have complex and contradictory
duties. They may seek to serve political officials, legal
mandates, professional visions, and the specific requests
of citizens' groups all at the same time. They typically work
in situations of uncertainty; great imbalances of power; and
multiple, ambiguous, and conflicting political goals. Many
local planners therefore, may seek ways both to negotiate
effectively, as they try to satisfy particular interests, and to
mediate practically, as they try to resolve conflicts through
a semblance of a participatory planning process (Forester
1987: 303).
In the mediation model, planners facilitate interparty
communication, aid in the formulation of agreements on technical
matters, suggest "packages" that allow contending parties to
trade across issues they value differently, and seek opportunities to
shift stakeholder relationships from adversarial to collaborative. Thus,
planners assist all stakeholders in reaching agreement.
Planners as Mediators
The question remains whether planners should mediate land use
disputes themselves or leave that role to outside professionals. Do
planners have the right attitudes and skills to mediate fairly? Can they
act in a neutral way while still expressing opinions on the substantive
issues at hand? Should mediation services be provided by autonomous
entities such as nonprofit centers or should they be available through
court-or government-annexed agencies?
Land use planners can, and have, mediated disputes successfully
even when they were directly involved in the case. The purpose of asking
planners to mediate their own disputes is not to save money on outside
services, but to encourage collaborative decision making as a normal
method of handling resource allocation disagreements. When the parties
involved in a land use dispute are not aware of, or experienced with,
consensus building techniques, land use planners can encourage them to
take advantage of mediation without much fanfare and without the need to
stop and wait until the services of an outsider become available. As
long as a planner has the right skills, and is able to stay neutral, he
or she can facilitate a joint problem-solving effort.
Other Public Officials as Mediators
An alternative to having planners play the role of the neutral is
to build mediation capability within government, while keeping these
capabilities separate and distinct from other departments. Currently,
such in-house arrangements exist in Massachusetts, Florida, Montana, and
Oregon. (8) Disputants do not usually choose between hiring ah outside
mediator or using internal expertise; instead, they choose between using
this internal service and not using mediation at all. Typically, because
internal expertise is readily available and relatively inexpensive,
parties are willing to use it as long as they have the right to opt out
at any point (without compromising their normal administrative options).
In general, the following preconditions should be met before any
public official assumes the role of a neutral mediator:
* The government agency for the neutral works should also send
another representative to voice its interests in the negotiation,
clearly freeing the neutral to concentrate on the mediation role.
* The relationship between the agency representative and the staff
person serving as the neutral should be disclosed immediately to all
parties involved.
* When making a decision regarding which staff member to place in
each role, the agency should clarify its decision-making hierarchy
internally. Failure to do so could lead to difficult situations in which
a subordinate, acting as a neutral, is required to oversee his or her
superior. Considering that government officials initiated 75 percent of
the land use dispute resolution cases in the CBI study, these
preconditions are very important.
Given the complexities of the mediator's role, most mediation
services should be provided by neutral parties outside of government. As
professionals not affiliated with any government institution, they will
be able to function most effectively. Those who have developed expertise
in land use and natural resource management are most likely to be
successful in such cases. An increasing number of non-governmental
organizations (NGOs) now offer consensus-building services, so the
availability of qualified outside professionals is no longer an issue
(Tonkin and Swanson 1998: 2).
Institutionalization and Regulation
There are federal, state, and even some local statutes on
negotiated rulemaking, but few of them are specific to the mediation of
land use disputes. One option is that land use mediation be regulated by
state enabling statutes on zoning to avoid some of the experimentation
that is less than fully informed. Or, states could draft separate land
use mediation statutes.
For example, the Montana Consensus Council has proposed a statutory
framework for resolving local land use disputes. (9) The intent of the
framework is to encourage local government officials, landowners,
developers, and other citizens to develop better informed, more
creative, and lasting solutions to land use disputes through various
forms of dispute resolution and consensus building. The proposed
legislation seeks to supplement, not duplicate or replace, existing
laws. It includes guidelines on the need for consensus building, the
creation of representative negotiating committees, techniques for
implementing informal agreements, the use of facilitators or mediators,
and public reporting requests.
Conclusions
Today, land use disputes are becoming increasingly complex. The
time is ripe for land use planners and other public officials to explore
alternative ways of resolving these conflicts, and the mediation model
represents an important new option for achieving this goal.
Increasingly experience with consensus building, as a means of
resolving complex land use disputes, is being documented and evaluated.
However, further evaluative research is still needed to sharpen our
understanding of what works well in the mediation process and what does
not.
Practitioners must develop a clearer understanding of the ways in
which procedural adjustments increase of decrease the efficiency and
quality of mediation. This includes identification of the key obstacles
to achieving settlements in different types of situations, the actions
that assist in, of hinder, overcoming these obstacles, and the
characteristics of each case that make it amenable, or not, to
negotiated settlement.
It is eminently clear that land use disputes will not give way to
technical planning and analysis alone. Furthermore, advocacy of various
political interests, although it may be absolutely necessary to ensure
that key voices are heard, tends to exacerbate rather than resolve
disputes. While litigation may resolve some aspects of some land use
disputes temporarily, it does not address the underlying concerns of the
parties very often; nor does it improve the very relationships required
to reconcile differences in the future. The mediation model offers a way
to accomplish all these objectives.
Table 1: The Changing Conception of Land Use Planning in the
United States
Technocratic Model Advocacy Model
Tasks The planner operates The planner
as an apolitical and represents a
technically skilled particular interest
advisor to elected group in the politics of
decision makers. land use decision
making.
Focus of Produces plans that Seeks to redistribute
Activity offer the "best" resources to ensure
solution, given a set greater equity and
of goals and improved quality of
limitations set by life for those least
elected decision able to fend for
makers. themselves.
Products/ Comprehensive plans Policy proposals and
Solutions that represent the plans that best serve
most efficient the group being
allocation of represented.
resources for a
specific point in time.
Skills Technical skills in Technical skills, plus
preparing efficient a greater
plans. understanding of
social and economic
issues and political
organizing.
Primary City Planning An interest group,
Client Commission and usually poor/minority.
elected decision
makers.
Basis of Planners have the Planners contend that
Legitimacy technical expertise few problems can be
necessary for this settled on technical or
type of work and are efficiency grounds
unaffected by external alone.
influences that might
otherwise
compromise their
professionalism.
Mediation Model
Tasks The planner tries to
facilitate a balancing
of concerns about
efficiency and fairness
by building an
informed consensus.
Focus of Ensures that the
Activity interests of all
stakeholders are
taken into account
along with the best
possible technical
advice.
Products/ Negotiated
Solutions agreements that are
both fair and
implementable.
Skills Same as the
advocacy model, plus
the ability to facilitate
interaction among
contending
stakeholders.
Primary All stakeholders.
Client
Basis of By playing a neutral
Legitimacy role and pursuing
mutually acceptable
agreements, the
planner enhances the
probability that an
implementable plan
will result.
Figure 1: How Would You Rate the Process in
General?-overall responses
Very Favorable 45.5%
Neutral 2%
Very unfavorable 3.5%
Unfavorable 10%
Favourable 39%
Note: Table made from pie chart.
Figure 2: How Would You Rate the Process
in General?-responses by outcome
Unsettled Cases Settled Cases
Very Favorable 9% 36.5%
Favorable 19% 20%
Unfavorable 7% 3%
Very Unfavorable 2% 1.5%
Note: Table made from pie chart.
Figure 3: Cost and Time of Mediation vs. other
Processes
Less Cost + 81%
Less Time
More Cost + 5%
More Time
More Cost + 4%
Less Time
Less Cost + 10%
More Time
Note: Table made from pie chart.
Figure 4: How Important was the Mediator?
--overall responses
Crucial 60%
Not Important 5%
Somewhat Important 11%
Important 24%
Note: Table made from pie chart.
Figure 5: How Important was the Mediator?
--responses by outcome
Unsettled Cases Settled Cases
Crucial 19% 41%
Important 14% 10%
Somewhat Important 5% 6%
Not Important 3% 2%
Settled Cases (Crucial+Important)=51%
Unsettled Cases (Crucial+Important)=33%
Note: Table made from bar graph.
Acknowledgments
This article is based on the report, "Mediating Land Use
Disputes: Pros and Cons," that was published in 2000 by the Lincoln
Institute of Land Policy. It is one in a series of policy focus reports
that address timely public policy issues relating to land use, property,
taxation, and the value of land. The original report was based on a
major research project funded in part by the Lincoln Institute. It was
conducted by researchers at the Consensus Building Institute (CBI),
headed by Lawrence Susskind, and at the Institute for Policy Research
and Implementation at the Graduate School of Public Affairs, University
of Colorado, Denver, headed by Marshall Kapland. The actual data
collected in the initial study are available for researchers on CD-ROM
from CBI.
(1) Even so, there are certain circumstances in which mediation is
inappropriate-particularly when constitutionally defined rights are at
stake or setting a precedent is important. See Susskind and Cruikshank
(1987).
(2) The distinction between interests and positions is explained
further in Fisher, Ury, and Patton (1991).
(3) For more information on the use of consensus building
techniques during the 1970s and 1980s, see Bingham (1986). For more
recent examples, see Susskind, McKearnan, and Thomas-Larmer (1999).
(4) A number of sources present information about case studies:
O'Leary and Husar (2003), Godschalk (1994); Dukes (1990); Crowfoot
and Wondolleck (1990); Huelsberg (1985); Talbot (1983); Bacow, Wheeler,
and Susskind (1983).
(5) For more information on the use of technology in consensus
building, see Ozawa (1991).
(6) These efforts, both successes and failures, were selected from
an inventory of 147 disputes suggested by 25 of the nation's
leading land use mediators.
(7) Each of the 100 cases involved multiple stakeholders, so CBI
staff carried out interviews with at least three key participants in
each case (totaling over 400 participants). Each respondent was asked
approximately 25 questions, during one hour face-to-face or telephone
interviews. The findings were then supplemented by eight in-depth case
studies prepared by the Institute for Policy Research and Implementation
at the University of Colorado. Sea CBI website (www.cbi-web.org) for a
copy of the questionnaire used in this study. See Lampe and Kaplan
(1999) for case studies.
(8) Examples include the Massachusetts Office of Dispute
Resolution, the Montana Consensus Council, the Florida Conflict
Resolution Consortium, and the Oregon Dispute Resolution Commission.
(9) "Resolving Land Use Disputes: A Discussion Paper for
Suggested Legislation," Montana Consensus Council, Draft of July
22, 1998. As well, Connecticut has legislation on the mediation of land
use disputes (see sect. 8-8, chpt. 124 of the Connecticut General
Statutes).
For Further Reading
Carpenter, S., and W.J.D. Kennedy. 1988. Managing Public Disputes.
San Francisco, Calif.: Jossey-Bass Publishers.
Dorius, N. 1993. "Land Use Negotiation: Reducing Conflict and
Creating Wanted Land Uses." APA Journal 59(2): 101-106.
--.1996. Resolving Public Conflict: Transforming Community and
Governance. New York. N.Y.: St. Martin's Press.
Forester, J.1989. Planning in the Face of Power. Berkeley and Los
Angeles, Calif.: University of California Press.
Godschalk, D. 1972. Participation, Planning, and Exchange in Old
and New Communities: A Collaborative Paradigm. Chapel Hill, N.C.: Center
for Urban and Regional Studies.
Innes, J. 1994. Planning Through Consensus Building: A New View of
the Comprehensive Planner. Berkeley, Calif.: University of California at
Berkeley.
Moss, D. 1997. "Evaluating the Use of Mediation to Settle Land
Use Disputes: A Look at the Provincial Facilitator's Office of
Ontario." Masters thesis, Department of Urban Studies and Planning.
Cambridge, Mass.: Massachusetts Institute of Technology.
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