Planning & Environment

With pilot cases being identified for mediation in the Scottish planning system, the outcomes of a pilot in England for employment tribunal cases are interesting.

The researchers found no discernable, statistically significant effect for the impact of mediation on rates of cases settled within a set time period or resolution that avoided a hearing. Outcomes from mediation were not significantly better (statistically) than those from a matched control group of unmediated cases.

On the up side for mediation, the empowering and flexible nature of the process was highly valued by those involved who saw an opportunity for early and less stressful resolution of the case. Yet the empirical tests provided no evidence that the mediated were more satisfied with their result than their counterparts – a point of which the planning pilot should take note .

The mediated employers had higher levels of satisfaction with the overall process than the mediated claimants.

In planning terms this suggests that mediators will need to manage the expectations of members of the public who do not have an in depth understanding of how planning works. Experienced developers and local authorities are likely to be more realistic, and therefore perhaps more likely to have higher satisfaction levels with mediation.

Who pays for mediation in planning cases is an issue. The researchers found that the system of judicial mediation used in the employment pilot was an expensive process for the tribunals to administer, and could not be offset by the estimated benefits. They recommended that consideration be given to employers being charged with the cost of the mediation. In planning terms that could mean and be seen as an additional development cost which may well be unattractive of itself in the present economic climate.

It has to be said that there was scepticism amongst the 50+ audience of planning consultants and developers at Brodies’ seminar on mediation in planning last September. The outcome of the pilot cases will be important in convincing them that mediation is useful. Challengingly, the English employment pilot shows that the experience is unlikely to be overwhelmingly positive.

Neil Collar

Neil Collar

Partner at Brodies LLP
Neil is a partner at Brodies LLP and consistently rated as one of Scotland’s leading planning lawyers. He is well known for both his planning inquiry advocacy and his advisory work. Neil has a particular interest in renewable energy developments.
Neil Collar

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