It would be fair to say that there is generally a low take up of alternative dispute resolution methods, such as mediation, in the local government context. This could reflect concerns about the accountability and transparency of the process. It may just be a general misunderstanding of what it is all about. Or it could due to our human tendency to bury or sidestep conflict, rather than resolve it.
Either way, there is no doubt local government would greatly benefit from adding mediation to its conflict resolution toolkit. In this article, we explain the nuts and bolts of mediation and talk about three benefits of mediating your next dispute. We also give you some ideas as to when engaging an independent mediator might be a good idea.
The nuts and bolts of mediation
So what exactly is mediation? In simple terms, mediation is a voluntary and confidential process which is guided by an impartial facilitator – the mediator. The process is structured and enables each participant to explain the situation from their perspective and listen to other participants’ views. The structure guides the participants from the past (where the conflict started) and into the future (where the solutions are to be found).
The participants, with the help of the mediator, set their own agenda for the discussion. Time is given to exploring the identified issues in depth with the aim to uncover what is really driving and motivating each other – that is, what is at the bottom of the conflict. Time is also given to explore and assess options to resolve the issues between the participants.
Typically, the mediation process will involve sessions with all participants and the mediator as well as private sessions. This includes a pre-mediation conference.
In summary, mediation is a very structured process – it is more than just getting someone independent to help figure out the problem for you.
The role of the mediator
The mediator, as an independent party, helps the participants explore the past and encourages them to focus on the future to find solutions which will work for them. The mediator will encourage participants to seek professional advice (for example legal or financial advice), where needed during the process. At the end, the mediator will help document any agreement reached.
In short, the mediator is an expert in the process and the participants’ drive what is discussed and ultimately, the solutions.
Benefits of using a formal mediation process
In the context of local government, using a formal mediation process with an independent mediator as a means to resolve conflict can have a number of benefits. Some benefits include:
1. Improving the quality of decisions and relationships with the community
By following a robust process which thoroughly explores the issues and options for resolution, the final outcome will be more robust. This has two flow on benefits. First, there is generally greater compliance with the outcomes reached through the process as the participants own the solutions. Second, there is usually a greater understanding between the participants which can be important in restoring and enhancing relationships. In the case of local councils, this may involve re-establishing trust with the community.
2. Being a flexible and inclusive process
Whilst the mediation process is structured, it can also be designed to suit the circumstances of the dispute. For example, it may include third party interests such as affected neighbours or community groups. It can also be tailored for small or complex disputes. This means that mediation is suitable for many types of disputes that arise in a local government setting.
3. Being a more cost effective and time efficient outcome than traditional litigation
Local councils operate in a cost conscious and financially constrained environment. This means legal costs can often be heavily scrutinised by elected councillors and the public. Councils also have an obligation to act as a model litigant – this means trying to resolve the dispute before starting Court proceedings. With this in mind, mediation offers a great alternative to waiting for a dispute to get tangled up in the Court system. Using mediation earlier in a dispute can result in cost savings (both those spent on external legal advisors and internal resources diverted to manage the issue) and a faster outcome.
Adding mediation to your conflict resolution toolkit
There are many ways for local councils to better utilise alternative dispute resolution methods to help resolve conflict and disputes. We covered some of the resources available to local government in our earlier article.
Mediation clearly has a role as a pre-cursor or substitute for formal legal proceedings. Indeed many jurisdictions now mandate mediation, or other forms of alternative dispute resolution, before litigation. However, there does not need to be the threat of litigation on the horizon for mediation to be an option. Instead, this should be seen as a first port of call when conflict starts to brew and the parties to that conflict are having difficulties finding a solution which works for everyone.
Some examples that spring to mind include:
- Where there are ongoing complaints or concerns from a community member about a council decision which just don’t seem to go away
- Where there is conflict between community groups about a council asset and those groups have insufficient conflict resolution skills to work the problem out themselves
- Where there is conflict between neighbours about a development application and Council (in its role as the consent authority) needs to balance those views in the assessment process
- Where a contentious and heated issue arises during a community consultation process which needs to be resolved before the project can move forward
Whether mediation is appropriate to the specific dispute or conflict will depend on a number of factors. If you wish to consider the suitability of a matter for mediation, please get in touch with Emma Broomfield, our Director – Governance and Mediation, who is a nationally accredited mediator and qualified lawyer with over 15 years experience in the local government industry.