10. Making mediation work for you
This guide is designed to increase the use of mediation and reduce the number of land use planning conflicts that go to the Ontario Municipal Board, a forum that is costly both to the taxpayers of Ontario and the parties to the dispute.
Mediation of land use planning disputes is relatively new and it can resolve many cases. For mediation to work, those involved in a dispute have to understand the mediation process and be willing to try it. This guide provides the newcomer to mediation with the information they need to make an informed choice about whether to agree to mediation and about the process itself.
Although this publication explains the benefits of mediation, it is even better to avoid creating disputes. Many disputes can be prevented if the applicant for a development consults with the municipality, neighbours and other interested people and groups before finally committing to a particular proposal, and if these groups and individuals make their concerns and needs known when changes can still be made relatively easily.
The guide was prepared by Dean Peachey and George Wahl, with assistance and feedback from the Society for Conflict Resolution in Ontario and the Ontario Professional Planners Institute, as well as the Ministry's Office of the Provincial Facilitator, which commissioned the work.
Making Copies of the Guide
The idea behind publishing the guide was to get the information to as many people as possible. You may make copies of the guide as long as you do not charge more than the cost of reproduction, no part of the guide is taken out of context so that the meaning is distorted, and the cover page indicating that copyright belongs to the Province of Ontario is included in any copy.
Steamed up? At the end of your rope? Caught in a tangle of red tape?
These are images of conflict -- images that are common in land use and planning disputes.
Settling planning and land use disputes can be a complicated process, involving various levels of appeal and a lot of time. Increasingly a new approach -- using mediation -- is being promoted to handle such disputes.
In some cases mediation can result in a speedy resolution, or one that is more satisfactory to the people involved in the conflict. In other situations, mediation is not appropriate. It can be used as a ploy by one party to cause further delay and added expense. And someone who is interested in establishing a legal precedent may be better off in court.
This guide addresses the key questions that you face when considering how to make mediation work for you.
- What is mediation?
- Is it appropriate for my situation?
- How do I find a mediator?
- What can I expect to happen in mediation?
- How should I prepare for it?
You will also find here answers to other commonly asked questions, a list of resources, and a short glossary of terms.
What is Mediation?
Mediation is one of several methods that are available to resolve disputes. In mediation someone who is independent of the dispute helps you come to a mutually acceptable solution with the other person or persons in the dispute. A trained and skilful mediator can help by improving communication among the parties, systematically exploring the interests of each party, and developing options for resolution. The one thing that a mediator cannot do is decide on the outcome or impose a settlement on you. Unlike arbitration, the people who are most affected by the outcome retain full control over the final decision. (For further information about dispute resolution methods, see the glossary at the end of this document.)
You might think of the mediator as a referee, establishing ground rules for effective problem-solving. Other times the mediator becomes a coach, suggesting more effective strategies for pursuing your goal, or offering encouragement when the situation appears impossible to resolve. But you and the other disputants keep control of the ball, and only you can determine the final outcome.
Typically the mediator (or mediators) will talk separately with each party, and then bring everyone together to explore possible settlements. By bringing together everyone who is involved in the conflict, communication can be untangled, and creative ideas tested. Mediation is a problem-solving approach that focuses not on who is right or wrong, but on developing a satisfactory and lasting solution to difficult conflicts.
Advantages of Mediation
Compared to formal proceedings in court or before an administrative tribunal such as the Ontario Municipal Board, mediation offers several advantages:
- It can cost less -- Disputes handled through mediation often reach agreement with less expense and in less time. In some situations the mediation may be provided by the municipality or other government agency, but often parties will need to pay at least a portion of the cost. Even so, the cost is often less than the cost of preparing for and conducting a formal appeal, or a prolonged political or legal fight.
- It yields better solutions -- Because parties participate in deciding the outcome, all parties have opportunities to generate options and alternatives that can maximize the benefits for all parties. And because the parties are responsible for the outcome, they are more likely to reach an agreement that is practical and realistic -- an outcome than they can and will live up to. (Several research projects have shown that people are more likely to live up to a mediated agreement than they are to observe the terms of a court order.)
- It improves relationships -- Disputes that escalate can sour and destroy relationships. Communication breaks down or becomes strained. Mediation can bridge these barriers and establish the groundwork for an improved (or at least neutral) working relationship.
- It is voluntary -- In mediation you retain the freedom to choose and decide. No one can force you to make an agreement. You can even walk away from the mediation process if you are not satisfied with what is happening.
- It is confidential -- The discussions during a mediation session are usually confidential. A mediator will only release information about the mediation if all parties agree to its release. (In some situations involving public officials or issues, the mediation process may be more public.)
- It can shorten a formal hearing -- Sometimes mediation cannot settle everything, but it can resolve or narrow some of the issues in dispute, paving the way for a speedier or less costly appeal hearing. Even if not everything is resolved, the mediation can still be a good investment of your time and effort.
What disputes are appropriate for mediation?
There are some common myths about mediation. Some people think that mediation only works with simple disputes, or ones that do not involve a lot of money or resources. Another common misconception is that mediation only works when people trust or like each other. None of these views could be farther from the truth. Whether it concerns a divorce, a standoff over park boundaries, or international disputes mediation has worked in tough situations where the stakes (and the emotions) are high.
Equally inappropriate is the view that mediation should be used for everything. There are situations where other approaches are better. To help you decide, consider using mediation to resolve planning disputes when a situation involves one or more of the matters in the following checklist.
Checklist of matters that indicate mediation may be appropriate
- Direct negotiations (discussions between the parties) have failed to reach agreement.
- An inexpensive and speedy resolution is desired.
- Both parties have an interest in ending the dispute on neutral or positive terms.
- Frustration, poor communication, or distrust is blocking the resolution of the dispute.
- The dispute is based on a misunderstanding.
- Sharing information from each side would produce a better mutual understanding of the issues.
- The issues underlying the dispute are ones that cannot adequately be addressed by a tribunal or appeal body.
Mediation may not be successful or appropriate when one or more of the matters in the following checklist apply.
Checklist of matters that indicate mediation may be inappropriate
- A vital municipal service or legal restriction is involved that cannot be negotiated.
- One party needs a formal victory because of its precedent value.
- One side has no motivation to settle (for example, expects large financial gains or emotional vindication).
- One party gains an advantage by delaying settlement of the dispute.
- The dispute is being used by at least one party solely to gain publicity and visibility, or one side refuses to settle as a means of sending a message to others not involved in the dispute.
- A stakeholder group has not had enough time to organize and clarify its own needs.
If one or more of these conditions is present, mediation may not be the best method of dispute resolution at this time. However, a change in circumstances could signal an opportunity to begin mediation at some point in the future.
Finding a mediator
Mediators may be assigned by a government agency or selected by the parties. The municipality or the Ministry of Municipal Affairs and Housing may be able to provide mediation services or referrals. The Ontario Municipal Board may provide mediation on appeals. Alternatively, you can select a mediator with the other parties in the dispute.
To find a mediator, look in the Yellow Pages of the telephone directory (under "mediators"), or contact one of the mediator membership organizations listed at the end of this guide. You can also locate mediators by asking a friend, lawyer, or planner for suggestions. Many larger Ontario communities have a non-profit community mediation service that deals with neighbourhood disputes. Check the Yellow Pages.
Tips on Selecting a Mediator
Mediators reflect a wide range of backgrounds and experiences. Here is a quick course on selecting a mediator that is appropriate for your dispute.
Some mediators in land use and planning disputes have a background in planning. Others come from different backgrounds and have honed their mediation abilities in other settings such as business, law, or social services. Mediators serve not by virtue of a standardized set of credentials but rather on the basis of their accumulated training, track record, and personal reputation. There is therefore no single definition of a qualified mediator. Although this is sometimes a confusing situation, it is appropriate, given the fact that different types of mediation skills are required in different cases.
In particular, some cases involve a high amount of technical planning, engineering, or ecological information. A mediator with a comparable technical background may have an advantage in being able to quickly understand the issues and communicate with the parties in such cases. The mediator who comes with some such knowledge can help the parties focus on the key issues in dispute, or share ideas about how other people have solved similar problems.
In a majority of difficult disputes, however, the obstacles to resolution are not technical so much as they are related to mistrust, suspicion, miscommunication, or negative history between the parties. In such cases, mediators need to be skilled at facilitating dialogue between hostile or reluctant participants. And in cases where one or more parties are distrustful of "experts," mediators who are seen as process facilitators rather than technical experts may be more successful. Benefits of this approach include avoiding a mediator's preconceived notions of what a settlement should look like, and letting the parties come up with unique or creative alternatives.
In other cases, the parties may want someone who understands a cultural issue or other context of the dispute. Particularly complex disputes, involving a wide spectrum of issues and parties, may call for a team of two or more mediators representing different backgrounds.
Talk to prospective mediators in person or by phone. Some mediators offer an introductory or orientation session at no cost, or reduced cost. Feel free to ask a mediator questions about his or her training and experience. Observe the mediator's interpersonal and professional skills. Qualities often found in effective mediators include objectivity, emotional stability and maturity, integrity, and sensitivity. Look also for good interviewing skills, ability to listen and clarify issues, problem-solving ability, and organization.
Don't be overly impressed by certificates on the wall, or initials on business cards. There is no universally recognized training or certification process for mediators in Ontario. In most cases, a certificate simply means that the mediator has attended a training program, not that the individual has achieved a certain level of experience or demonstrated competence in a supervised setting. Neither is membership in a mediation association proof of experience or skill. In Ontario such memberships are open to any interested person who pays a membership fee.
Do they have materials outlining their policies or procedures? What agreements will you be asked to sign to engage them? Ask for a copy of a mediator Code of Ethics or Standards of Conduct that they follow. The bottom line is that the mediator be credible to you, and be someone that you feel comfortable working with.
Preparing for Mediation
As with any challenge in life, preparation is helpful in mediation. Start with an attitude check. Be ready to think about possible solutions, rather than trying to convince the mediator that your position is "right." (Remember, mediation is not a hearing, and the mediator will not make the final decision.) Instead of determining who is right and who is wrong, the mediator works with the other parties and you to discover underlying needs behind the positions, and develop solutions. It is useful to understand the difference between positions and interests. Positions are the public bargaining postures that a party states to try to get what it wants. Positions usually represent the solution that a group thinks will best meet its needs. Instead of arguing endlessly about the parties' positions, look for the underlying reasons or interests for those positions, and attempt to develop solutions that address the interests of all parties.
For example a group of neighbours may be objecting to an application to decrease the lot sizes in a residential development. Their preferred position or solution is no decrease on lot size. The underlying interests for this position may relate to traffic, privacy, impact on property values, drainage, or house designs for smaller lot sizes. A variety of solutions may be possible, depending upon which of the above interests is most important. Focusing on the interests is likely to be more successful, creative, and satisfying than getting stuck in a debate on 10 metre versus 15 metre lot widths, or even trying to strike a compromise at 13 metres.
Spend some time prior to the mediation really trying to better understand the situation.
- Be clear on what you really want. Know specifically what your concerns are, and plan to explain your reasons clearly and concisely.
- Prioritize what you want. Identify the most important interests to satisfy during negotiations.
Know which interests you may be willing to compromise. Remain open to the possibility of changing approaches when you hear the other party's interests.
- Be realistic about what you want, and think about how you can demonstrate to others that you are being realistic.
- Put yourself in the shoes of the other parties. Examine their respective positions and ask yourself why they have taken their positions. Why are they different from yours?
- What are some options that might meet your needs as well as those of the other parties?
- If you are representing a group, make sure you are clear on what you can negotiate on behalf of your constituents and on what issues you need to seek their viewpoint.
Finally, expect real differences in values, beliefs, opinions, personalities and interests. People believe in and value different things. Prepare to "act in good faith" by dealing honestly with the issues and the parties.
What happens in mediation?
Typically the mediator, or someone associated with the mediator's office, will talk to each of the parties in the dispute. This enables the mediator to develop an overview of the issues in dispute, and to begin to develop a plan for the mediation. It is also an opportunity to address any questions about mediation, or about the mediator's training and background.
Mediation can consist solely of the mediator talking first with one party, then the other (either in person or by telephone), in an attempt to develop an agreement. More common, however, is for the mediator to convene a meeting with all parties present, or to use some combination of shuttle diplomacy and joint meetings.
Assuming that there will be a joint meeting, here is an outline of a typical procedure, although you can expect variations appropriate to your situation:
- The mediator reviews the ground rules or procedures to be followed during the mediation. Ground rules vary in complexity depending on the nature of the dispute. They may cover the mediator's role, the mediation process, payment of fees, confidentiality of issues, meeting schedule, and the responsibility of the parties during the mediation, and clarifying who has authority to make a settlement.
- The parties are typically asked to sign an agreement to mediate. This agreement might state the nature of the issue(s) in dispute, indicate the voluntary participation of all parties, state that they will act in good faith, and provide for the discussions in mediation to remain confidential.
- Parties present the issues to be discussed from their points of view, along with their concerns and preferred solutions to the problem. (In complex cases the parties might first exchange information documents, or jointly collect data related to the conflict.) The mediator may ask parties to specify the reasons (interests) underlying their statements. This process often clarifies previously held views and/or brings new information to light. Multiple issues will be separated and discussed independently.
- Parties generate and explore potential solutions to the identified issues that address their respective interests. Although an historical perspective of the reasons for the dispute is reviewed, the focus of mediation is on the future. What can be done now to resolve the issue, or to reduce the likelihood of future problems?
- In the course of a joint meeting, the mediator may call for a break, or meet separately for a while with each of the parties in order to further explore options for settlement.
- A settlement is finalized only when all parties are satisfied. The agreement is written down, reviewed by all parties and signed. In some cases, parties may wish to have their lawyer or other advisers review agreements before signing.
The process can involve one meeting, or several meetings, depending upon the complexity, history, number of parties, and emotional intensity of the dispute. A lot depends on how quickly (or cautiously) you and the others in the conflict want to proceed.
Tips for when you are in the middle of mediation
- Without challenging them, invite other parties to explain why issues are important. Listen carefully -- each side is likely to have multiple interests. Repeat the key points of what you think they said.
- Clearly communicate your interests to the other parties. Underscore your interests with specific details and events.
- Differences in values, behaviours, approaches, and beliefs may leave you feeling offended or threatened. If you are having strong reactions to another party, ask to speak to the mediator privately, and spend some time discussing your reactions and how to deal with them.
The role of advisers in mediation
Depending on the type of dispute, it may be appropriate to have a lawyer, planning consultant, or other adviser present during the mediation. Sometimes mediators will emphasize that such advisers are there strictly in an advisory role, and that the primary discussion is to be conducted between the people in the dispute. Other times, mediators may invite or even expect the advisers to play a lead role in the discussions. It is important to clarify any such expectations with the mediator at the outset of the process.
Consultation with advisers before, during or after mediation sessions can be important to understand the implications and responsibilities of any agreement. Always consult with your adviser prior to signing a settlement agreement if you have any questions about the content or legal effect of the agreement.
Commonly asked Questions and Answers
Who pays for mediation?
If a land use and planning mediation program exists in your municipality, it may cover the cost of mediation. In other situations, on request the local municipality may be able to arrange informally for a mediator from another municipality (usually a member of the planning department) to conduct a free or at cost mediation. Mediation may also be available without charge from the Ministry of Municipal Affairs and Housing. Mediation at the Ontario Municipal Board on an appeal is at no cost to the parties.
In most communities, however, the parties agree to hire a mediator and negotiate how the costs will be shared as part of a preliminary agreement to mediate. Costs may be shared equally between parties, or be covered by the party with stronger financial resources.
How much does mediation cost?
Hourly rates for mediators in private practice vary according to the background of the mediator and the norms in the local community. For example, a mediator who is also a lawyer may charge the same fee for mediation as for legal work, and fees in small towns are typically less than in downtown Toronto.
Using trained volunteers, non-profit agencies may be able to provide services that are free or offered at a reduced rate for certain disputes.
What's the best time to propose a mediation?
The best time for mediation is immediately after attempts at negotiation have failed. The longer an unresolved dispute continues, the more polarized the parties may become. As disputes escalate, communication breaks down and positions harden -- making settlement more difficult to reach. Time and costs for all parties can be minimized by bringing parties to the table as soon as possible.
An approaching deadline also indicates a good time for mediation. An upcoming hearing date at the Ontario Municipal Board, or an advancing construction season, can significantly increase the motivation to find a solution through mediation. How long does mediation take?
Mediation can last from a few hours to a number of sessions depending on the complexity of issues, number of issues, number of parties, and relations between the parties.
Is a mediated agreement legally binding?
It depends upon the content of the agreement. The agreement may constitute a contract, in which case it could be legally enforced (with an appropriate expenditure of time and money). In most cases the people who signed the agreement would need to take action to enforce it; no public body is monitoring its implementation. Talk to a lawyer if you have doubts or questions about legal issues.
It is rare for parties not to fulfill their agreement without a good reason. In many mediated agreements, a clause is included that indicates how these difficulties and any future disputes will be resolved. The need for fine-tuning and dealing with unforeseen problems can always arise with any agreement.
What is the role of my elected representative?
Politicians often find themselves representing constituents who have adopted directly opposing positions. Politicians can play an important role in representing the public's best interests by encouraging parties to seek mutually beneficial solutions through mediation. In some cases elected officials, such as city councillors, may participate in the mediation if the outcome will require public approval.
What role does the municipal planner play?
Planning staff play a variety of roles in land use and planning disputes. Depending on the issues in dispute, the planner often serves as a technical resource, clarifying policies and planning regulations within which options can be examined. In other cases, the planner may be representing the municipality, as a party in the dispute. In some disputes, where no conflict of interest exists, properly trained planning staff may serve as the mediator.
Glossary of Dispute Resolution Terms
Alternative Dispute Resolution (ADR) - A broad range of processes designed to assist people resolve disputes outside of the court system. It includes processes of mediation, arbitration, and neutral fact finding, as well as others.
Negotiation - The two (or more) parties in conflict communicate with one another to reach an agreement.
Positional Negotiation - Negotiation characterized by adopting a position that you desire, and trying to bargain to bring the other party as close to your position as possible.
Interest-based Negotiation - Negotiation characterized by both parties communicating their basic interests to one another and jointly exploring options that can maximize the gains for each party's interests. (Similar terms include "principled negotiation" or "mutual gains approach" to negotiation.)
Mediation - An independent intervenor assists the dispute parties to identify, communicate, and resolve their differences. The mediator structures and facilitates the process, but does not impose an outcome upon the parties. The process may involve joint meetings of all participants, separate discussions with each party, or some combination of these activities.
Arbitration - An independent person hears all sides of a dispute, reviews the evidence, and issues a decision that is meant to be binding upon the parties. Parties may participate voluntarily or under the requirements of a contract or statute.
Resource List - Organizations
Society for Conflict Resolution in Ontario (SCRO)
2255B Queen Street East
P.O. Box 137
Toronto, ON, M4E 1O3
Pronounced escrow, it has its roots in environmental, land use and planning disputes but has branched out from there. It is still the place you would be most likely to find people with expertise in those areas of conflict resolution.
Ontario Professional Planners Institute
234 Eglinton Ave. East
Toronto, ON, M4P 1K5
The Ontario Professional Planners Institute (OPPI) represents professional planners involved in planning how our lands, waters, natural and cultural resources, and community facilities and service are allocated, ordered and used. OPPI administers a training program on mediation which it developed in partnership with the Office of the Provincial Facilitator and the Society for Conflict Resolution in Ontario.
Arbitration and Mediation Institute of Ontario (AMIO)
234 Eglinton Ave. East
Toronto, ON, M4P 1K5
The Network: Interaction for Conflict Resolution
Conrad Grebel College
Waterloo, ON, NFL 306
Specializing in facilitation of multi-stakeholder groups and distribution of literature on conflict. They can send a list of resources they carry.
Canadian Bar Association of Ontario - ADR Section (CBA-O)
20 Toronto Street
Toronto, ON, M5C 2B8
The Ontario Branch of the Canadian Bar Association publishes the "Alternative Dispute Resolution Directory" listing section members and subscribers (other professionals who are not lawyers) who provide mediation and arbitration.