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Mediation: A New Way to Resolve Land Use Conflicts

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Conflict has been and probably always will be a normal part of a planning commissioner's work. Typically, conflicts are resolved through negotiation or through a commission making a decision and disappointed parties filing a lawsuit. Mediation is a new approach to resolving land use disputes that occur before a permit is issued or after litigation has commenced. This article will focus on mediation in the land use context - what it is, where it has been used, and how it can be used in your community.

What Is Mediation

Mediation is a voluntary, informal process of dispute resolution. A person who is not a party to a dispute and is neutral in relation to it, assists two or more parties in settling a dispute. The mediator's role is to establish, with input from the parties, the negotiation process, and to assist the parties in resolving the substance of their dispute. The mediator does not function as a judge or arbitrator, and does not render decisions or make recommendations. It's a "bottoms up" process, not top down.

A "successful" mediation is one where all of the parties believe that they have negotiated a result that is better than that which they could otherwise have obtained. Successful mediation processes often result in settlements or recommendations that include solutions which are different from those that were proposed by either party.

For example, imagine a mediation occurring before a developer submitted an application for development approval. The neighbors vehemently oppose the proposed project, that includes twenty-five residential buildings. They say they will agree not to oppose a project with ten or fewer buildings. A mediation process results in a mixed use project (mostly residential with some commercial), which includes ten buildings and a new site design. The developer is satisfied with the result because the commercial uses will provide a higher return on his investment than the residential. The neighbors have agreed not to oppose the project because it is less dense, there is more green space, and the site design reflects the characteristics of the community. ...

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