Questions Answered

The mediator must be suitably trained and be accepted by all parties as wholly independent. In complex cases, a thorough knowledge of the planning system is important.

It's important to be clear about cost sharing from the outset. If each party agrees to contribute something, it demonstrates everyone's commitment. The question does not arise if public funds are available.

When is the best time to mediate?

The earlier the better, because prevention is better than cure. Consensus building can stop disagreements becoming bitter disputes. But mediation can help at a late stage, even after a planning application or an appeal has been lodged.

Is it not best to involve the community before a major planning application is lodged?

Some developers already discuss proposals with the community before submitting planning applications. This is a legal requirement for some large developments. Consensus building (which is similar to mediation) at this stage would be aimed at avoiding conflict, and should improve the acceptability of an application. At worst, all parties would expect to be better informed.

Is there proof that mediation works in planning?

Research in England shows that mediation is already a proven technique, especially for domestic planning applications. More experience is needed of major proposals and development plans, but there is every reason to suppose that these, too, could benefit. Some very tricky cases in other countries, such as the USA and the Netherlands, have been resolved through mediation.

The third runway at Vienna International Airport is a particularly impressive example from Austria.

Surely many issues simply cannot be resolved by agreement?

True. “Take it or leave it” issues are not amenable to mediation. An example might be a proposed new house in a green belt; you can either allow the application, or refuse it. There is no middle course which might satisfy both applicant and objectors.

This is why mediation should never be obligatory. But there are many instances where there is scope to amend proposals so that all parties can live with the outcome.

Is there any point in mediation if the parties are already at loggerheads?

Where views have become entrenched and normal negotiations have failed, mediation might still be worth trying. A good mediator will very quickly spot the few instances when it’s not worth proceeding.

Mediation is an extra stage. Will it add time and cost?

If mediation resolves a dispute, it will save time and cost. More importantly, everyone should be happier with the outcome.

Surely planners already mediate in disputes?

This is a misunderstanding. A mediator helps the parties in dispute reach their own agreement. Local authority planners either recommend a course of action or take a decision themselves, so are arbitrating rather than meditating.

Does mediation add complexity and create duplication?

Mediation is an alternative means of resolving difficult disputes. If successful, it simplifies subsequent stages and may avoid the need for appeals and public inquiries.

How do you judge when mediation might be appropriate?

This can only be decided on a case by case basis. Most importantly, there must be room for manoeuvre on the issue. Instances where normal negotiations have broken down are prime candidates for mediation. Scale is unimportant. There are more benefits to be gained for larger applications and policy formulation, although the difficulty of reaching an agreement increases with complexity.

Click here to get a rough indication of the chances of reaching a mediated agreement on a planning issue.

How does mediation sit in relation to the statutory process?

Mediation should not be part of the statutory process. However, it’s perfectly OK for a statutory decision to take a mediated agreement into consideration.

Could a planning authority's statutory duties be compromised by mediation?

Mediation cannot interfere with statutory duties. Mediated agreements can never replace the normal process of deciding planning issues, but they might take much of the heat out of the process. Planning authorities can take a mediated agreement into account, and are free to ratify (or reject) it.

Will mediation delay affect a planning authority’s performance indicators?

This will only happen if mediation takes place at certain stages of the development control process – for example, after an application has been formally lodged and before it is determined. If the mediation takes place before an application is formally lodged, or as an alternative to appeal proceedings, or during the early stages of and appeal, then it should speed up decisions and free up staff resources.

Better neighbour notification, education and support for the community would be preferable to mediation.

Recent changes are improving neighbour notification. Community education and support are available, most notably through Planning Aid for Scotland.

These actions are all worthwhile. But mediation is not about giving advice or support, it is about allowing parties to a dispute to reach their own agreement.

Should mediation be provided by an independent service, run by the Scottish Government?

That’s one possibility for the future. Another is that the Scottish Government might oversee a panel of independent mediators with special knowledge of planning. Parties to a dispute could opt to choose a mediator from the panel, or make their own arrangements. Choice is important, because mediation is about parties reaching their own agreements and they all need to have confidence in the mediator.