INTRODUCTION

Locating a large superstore, siting a new landfill, reviewing a major new development, reconstructing an abandoned railroad line for a bike path – all of these can create conflict. In most communities, the usual process is for the planning commission or zoning board to hold public hearings, review the evidence presented, and render a decision. When a project is highly controversial, odds are good that this decision will be appealed, ultimately ending up in court. But court proceedings can be costly and time consuming. Moreover, the final outcome will likely be unsatisfactory to at least one of the parties.

Over the last twenty-five years, a growing body of evidence suggests that mediation and facilitation – what we term "consensus building" can be effective in helping align divergent interests, develop creative solutions, and resolve heated disputes. Consensus building can lead to outcomes which all parties to a dispute find acceptable.

Perhaps the earliest consensus building effort in the environmental and land use context was initiated in 1973 and focused on a long-standing dispute over the location of a flood-control dam on the Snoqualmie River in Washington. In one year, with the help of a mediator, the parties agreed not only on a location for the dam, but also on the creation of a river basin planning council and the purchase of development rights to maintain the area's rural character. Since then, hundreds of land use and environmental conflicts have been resolved through the use of consensus building techniques.

Consensus building can be particularly helpful in: (1) resolving appeals of contentious local commission decisions; and (2) resolving "not in my backyard" (NIMBY) disputes.

RESOLVING APPEALS OF LOCAL COMMISSION DECISIONS

Despite a community's best efforts, a land use decision may find its way into court or be appealed to some other review body. Proponents of a project that has been turned down may feel they have no choice but to pursue litigation, especially if they see their case as strong and their sunk costs high. Similarly, opponents of a project that has been approved may feel they have no recourse but to go to court to block the project. While mediation is not always the answer, in many situations it can help the parties address the issues and reach settlement faster and at lower cost than litigation.

Take the following example. After the recession of the early 1990s, a local bank in a community north of Boston found itself in repossession of 97 acres of developable land. The bank (through an investment corporation) proposed to build a 100 unit residential development, of which 25 units would be affordable housing. Local officials, however, were worried that the project would eliminate one of the last major parcels in town available for commercial development.

After a lengthy review, the town's zoning board rejected the application on the basis of wetlands and traffic concerns. The bank appealed the decision to the Massachusetts Housing Appeals Committee, relying on a state law that allows this state board (under certain circumstances) to override local zoning denials when affordable housing has been proposed. The Housing Appeals Committee, with a heavy backlog of cases, encouraged the parties to try to mediate the dispute.

The parties agreed. For the bank, mediation held the promise of avoiding protracted and costly litigation. For the local officials, mediation offered the possibility of reaching an agreement which they could help shape, instead of one imposed by the state.

Ultimately, the bank and town officials agreed to a mixed-use development of 40 single-family homes, with a 20-acre commercial/industrial park. Ten of the homes would be affordable; land would be set aside for open space; and the wetlands would be protected. The parties also agreed to jointly select an outside engineer to review plans and monitor construction.

RESOLVING NOT IN MY BACK YARD DISPUTES :

Siting landfills, homeless shelters, halfway houses, and countless other uses can provoke strong, and frequently bitter, reactions from nearby residents or businesses. Opponents will fight every inch of the way to prevent something they deem unsafe or destructive to the property values of their homes or businesses. On the other side, proponents will spare no cost in promoting the need for their project and generating support for it. Local officials often find themselves caught in the middle, between groups with firmly set opinions that seem miles apart. Consensus building can help the parties step back, consider possible options, and determine if there may be a way to satisfy the interests of all sides.

In West Chester, Pennsylvania, a proposed downtown homeless shelter divided the community. Local business owners organized in opposition, fearing the shelter would hurt nearby businesses and cause the downtown to further deteriorate. Others saw the shelter as essential to meeting an important community need.

The County Commission wanted the dispute resolved, but also wanted to see if this could be done outside the context of a formal zoning permit hearing. At the County Commissioners' urging, the parties agreed to try mediation. The County assisted by covering its costs. The mediators started by conducting a "conflict assessment," which included a series of confidential, one-on-one meetings with those involved in the dispute. The mediators then convened several meetings which all the stakeholders attended. One major concern to the business owners was that the shelter would operate 24 hours a day, with the homeless not merely seeking a bed for the night, but other support services. Although shelter advocates argued strongly for day time job training and counseling services, the parties reached agreement that, at least initially, the shelter would operate only in the evenings. The shelter provider also offered a pledge to the community to be a good neighbor. The agreement ended with a motto coined by one of the original opponents: "Together we can do it." Four years later, after proving itself to be a good neighbor, the shelter was allowed to expand its operations to include daytime hours and additional services.

ELEMENTS OF CONSENSUS BUILDING

The two examples described above provide just a flavor of how consensus building can make a difference. Given these examples, you might ask, "OK, this might make some sense, but how does it really work?"

The consensus building process typically includes five key steps: convening; clarifying responsibilities; deliberating; deciding; and implementing agreements.

1. Convening. A sponsoring or "convening" body (usually a government agency) typically initiates discussions about whether or not to have a consensus building dialogue. This is best done by commissioning a mediator or some other "professional neutral" to talk privately with the obvious stakeholders to see if they have sufficient reason to support such an effort. Such consultations usually lead to the preparation of a draft conflict assessment report, which maps the views and interests of all the stakeholders (without attributing any statements to specific individuals). This assessment provides the means for both the mediator and the stakeholders to clarify whether it is worth trying to reach an agreement through open deliberations. If there does appears to be sufficient interest in moving forward with the mediation, the conflict assessment report can then be used to generate a work plan, timetable, operating ground rules, budget, and an outline of the data or technical material that needs to be gathered. One of the advantages of conducting a conflict assessment is to test the idea of consensus building with the participants before diving in. Assessments can also provide a "cooling off" period during which the parties can review their interests and more calmly weigh how to proceed. Assessments take no commitment from the parties beyond the willingness to be interviewed confidentially for an hour or so and to review the draft conflict assessment report.

2. Clarifying Responsibilities. Assuming the parties decide to proceed, they must agree on a mediator. This does not necessarily have to be the same person who conducted the conflict assessment.

The mediator's responsibilities should be spelled out in a contract between the mediator and the parties. It is also necessary to agree on who will participate in the mediation sessions as representative for each of the parties. Since the subsequent consensus building process usually takes place in a public forum, it is essential to agree on rules about the role of observers (i.e., individuals who are not stakeholder representatives) during the mediation process.

Finally, the relationship between the consensus building process and any legally required decision making (e.g., a ruling of a zoning board or a court) must be clearly spelled out.

3. Deliberating. It is the mediator's job to ensure that each face-to-face session is professionally managed. This can be a daunting challenge especially when a group involves 15, 20, or more participants. An agenda (approved by all participants) must be prepared prior to each meeting. Often subcommittees of participants assisted by outside experts agreed to by all involved; prepare reports on specific issues, laying out options or arguments for the full group to consider. Deliberations are most effective when the parties take sufficient time to "invent" options for each issue, and explore various combinations of those options before final decisions are made. It is common for the mediator to meet privately with each of the parties to identify and test possible trades or "packages." Often, the mediator will develop a "single text draft agreement" synthesized from the views and ideas expressed during this phase of the deliberations. The mediator may also help the participants articulate the proposed agreements to their respective constituencies, ensuring that all representatives have been in touch with the groups or individuals they are supposed to represent.

4. Deciding. It is at this point that the consensus building process differs most sharply from what most people are accustomed to in public decision making settings. The goal is not necessarily to arrive at a result which most closely meets the local ordinance's review criteria. Neither is it to find an agreement only barely acceptable to all (i.e., lowest common denominator). Instead, the goal is to reach an agreement which maximizes the joint gains of all participants. Given the group problem-solving nature of the consensus building process, Program participants are responsible not only for presenting their own views, but for suggesting ways of meeting the interests of others. The mediator will typically help formulate a set of proposals, and will seek to have the participants clarify why they support or do not support a particular proposal. The new solutions developed in this way often satisfy more of the parties' interests than would have occurred without negotiation. Reaching consensus does not mean that every participant has to be pleased with every aspect of a proposed agreement. But consensus does require concurrence by all participants – or at least an overwhelming number – with the overall agreement.

5. Implementing Agreements. Any agreement resulting from the consensus building process should include means to ensure it will be effectively implemented. This may be through provisions where third party experts are assigned the job of monitoring various aspects of an agreement's implementation, or through dispute resolution clauses which clarify how disputes over implementation will be resolved. The product of a consensus building effort may be a plan that must still be formally adopted by a local board or commission, or a legal settlement that must be signed off by a judge. If consensus is reached (and assuming the mediator has kept the local board or the judge updated on the group's progress), boards or judges will likely be more than happy to finalize and formalize the agreement. Indeed, many mediations were convened in the first place by local officials, or were authorized by the court.

Q&A

1. Who pays for the mediation?

There is no one answer. In some cases, it is the local government. In others, it is the developer or, perhaps, a state agency. Costs can also be shared. But bear in mind that who pays for the mediation is far less important than having a clear understanding that the mediator will serve all parties in a fair, non-partisan, and professional fashion.

2. Does land use mediation work?

A nationwide study, conducted by the Consensus Building Institute in 1997-1998, identified over 100 local land use and environmental conflicts in which mediation had been utilized.( Lawrence Susskind, Mieke van der Wansem, and Armand Ciccarelli, Mediating Land Use Disputes: Pros and Cons, Lincoln Institute for Land Policy, 2000). The study included a survey of participant satisfaction with mediation. 86 percent of the more than 400 individuals who responded to the survey reported either favorable or very favorable views of the mediation process. Moreover, 81 percent believed the mediation resulted in less cost and less time than would otherwise have been needed. Among those respondents who stated that some sort of settlement was reached in their case, most thought the agreement was well implemented (75 percent), was more stable than what could have been achieved without mediation (69 percent), and was creative in producing the best possible outcome for all parties (88 percent). Furthermore, 92 percent of respondents whose cases were settled thought that their own interests were well served. At least from the perspective of participants in consensus building, it can and does work much of the time. The study also sought to determine in which situations land use mediation was most likely to work. It found that mediation was most helpful when one or more of the following factors was present:

The dispute was local. Importance of the outcome to each participant was high. Issues were relatively clear. Relevant laws were flexible enough to permit a negotiated settlement. Actual decision makers were willing to participate or convene the mediation. There was no immediate danger to life/safety.

Mediation was found to be less useful when one or more of the following factors was reported:

Precedent setting was important. Participants did not recognize the rights of others to pursue their interests. Fundamental rights were at stake that was not clearly delineated by law. A mediator acceptable to all key parties could not be found. No action on the issue was the best possible outcome for some parties. There were few issues to trade or package in an agreement. The process was used as a means to delay real action or create an illusion that something was being done.