Reflections on Mediation in Victorian Planning and Environment Law
Having just returned from my time as a faculty member of the International Summer School on Alternative Dispute Resolution [Run jointly by Tulane University (New Orleans, USA) & Humboldt University (Berlin, Germany)] in Berlin, I’ve been reflecting broadly on mediation in Victorian planning and environment law. One such reflection is that mediation should have a larger role in town planning and environmental law in Victoria.
The Encyclopaedic Australian Legal Dictionary defines ‘mediation’ as:
“A method of dispute resolution in which an impartial third party seeks to facilitate a settlement by encouraging the disputing parties to generate solutions that focus on their mutual interests… participation in mediation is totally voluntary… parties are not bound to reach an outcome… Depending upon its terms, a mediation agreement recording the resolution of a dispute is usually legally binding.”
In the planning permit process, mediation already exists as a standard part of a Victorian Civil and Administrative Tribunal (‘VCAT’) hearing process. However, it has made way for a different form of Alternative (Assisted/Appropriate) Dispute Resolution (‘ADR’) known as Compulsory Conference. The Compulsory Conference should not be confused with mediation as it is an entirely different form of ADR.
The Planning Amendment Process does not provide any formal ADR processes although there is potential for the Panel Hearing process to provide a forum well suited to utilise formal mediation.
In part due to the booming property and development market, together with generous standing for third parties, communities have an increased understanding of and involvement in planning disputes. However in many disputes that reach VCAT, parties are entrenched and worn-out: and have reached a point where they are simply calling for ‘judgement’ of their issues and a ‘win or loss’ outcome. Given this, most VCAT disputes, in my view, are past benefiting greatly from mediation.
However during my time teaching mediation, I felt that certain types of planning disputes could benefit greatly with mediation at a much earlier stage: well before ‘point scoring’ and ‘win and losing’ start to become factors in people’s decision making. I believe that the strengths of mediation to unfurl the points of individual interests and reveal underlying issues, so as to move to impasse breaking and creative problem solving offer immense power in helping resolve planning disputes. A mediated agreement made between parties, potentially, leads to a far higher compliance and satisfaction.
Whilst just a very loose concept, an early intervention mediation (‘EIM’) concept for planning permits may be worth thinking about. Such an EIM would be a voluntary mediation service, either within or just after the advertising period for a new planning permit application. EIM could be instigated by the parties, Councillors or senior officers when a vexing or difficult planning application arises. The parties to the EIM would likely include the neighbours/interested parties and the permit applicant with potentially an independent council officer (ie not the officer reviewing the application – but an officer with sufficient internal experience, knowledge and authority to cross check any agreement against Council’s obligations and interests). An EIM could require parties to consent to delaying the making of a decision. The time for the mediation would be driven by the mediator, together with the parties, given the issues involved. The cost of the mediation would be borne by the parties.
The aim of EIM would be to explore parties’ underlying interests and issues before becoming entrenched and/or combative, creating a space for better understanding between them and potentially opening up creative solutions to benefit all parties: a ‘Win Win’.
An EIM could be organised quickly, unburdened by the timelines of VCAT or other systems to try to unpack the issues involved. Any agreement or even agreement on discrete issues could then be used to inform decision making of the responsible authority – if the parties consented. This process would not waive or do away with appeals, but, in my view, where parties fully and genuinely commit to a mediation process and agreement is reached, they are spared the costs, delays and the emotional toll of a dispute and tend to be far happier with the outcome. It also emphasises party autonomy, placing people at the heart of planning decision making, rather than government or the judiciary.
I believe in the value of mediation in healing rather than breaking parties. In many cases, I have seen planning; entrench community divisions, create long-term disputes between neighbours, and ostracise people in their communities. Whilst just an idea, it may be time to think about resolving planning disputes before they get going.
I don’t believe it needs to be this way and planning can and should bring communities together rather than taking them apart.
25 August 2017
Copyright © Kellehers Australia 2017 This post is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
 See McEwen & Maiman, Mediation in Small Claims Court: Achieving Compliance Through Consent, 18 Law & Society Rev. 11, 40-47 (1984) (finding a higher percentage of parties comply with a mediated settlement than with a court-ordered judgment).