How Military Strategy Argues for the Increased Use of Mediators in Land Use Approvals

A developer I work with finds the typical land use approval process so grueling and disruptive that he has, at times, characterized it as “nuclear war.” In his experience, too many projects have resulted in protracted battles that cost him too much money, forced him to seek legal remedies, and produced results that were far from satisfying. Based on his experience and what we read about land use decisions, his war analogy seems to describe the experience of others as well. If obtaining a land use approval were akin to waging war, then land use attorneys would be wise to glean practice tips from the writings of military tacticians. While this suggestion may not surprise many of us in the field, most will be surprised to learn that following such military advice leads to the conclusion that mediators should play a central role in the land use approval process. This article will explain why the use of mediators should be part of any advocate’s strategy to obtain or oppose a development project and how this is consistent with military theory.

When discussing military strategy, it is only appropriate to start with Sun Tzu, the legendary Chinese General who wrote The Art of War in 500 B.C. In this authoritative volume, Sun Tzu makes several statements that serve as guidance for land use conflicts. First, we are informed of the most important principle, that the ultimate goal of war is peace. Then, the author points out that all battles are won before they are fought – “the general who wins a battle makes many calculations in his temple before the battle is fought.” In the context of a land use approval, preparation (“calculation”) prior to submitting an application to the local board (“battle”) is crucial. To help us understand what we are preparing for, Sun Tzu provides the following advice: “the best thing of all is to take the enemy’s country whole and intact; to shatter and destroy it is not good.” In a land use approval context, one takes the “enemy’s country” by finding out what they want and subsequently helping them get it. Dwight Merriam, a partner at Robison & Cole, LLP, and coauthor of The Takings Issue, recently echoed this principle in his article Dealing with Citizen Opposition, Lessons Learned. The first principle he sets forth in that article is: “don’t think of the opposition as ‘Opposition’ rather as potential allies to be won over.” 1

The land use approval process, like war, is often characterized by destructive and unproductive skirmishes. The process can take years from beginning to end, plans are drawn and redrawn, experts are hired and replaced with others, and, more often than not, the ultimate resolution fails to satisfy the prevailing party.2 Despite these outcomes, conflict per se is not the problem. Conflict plays an important role in society – it prevents stagnation and spurs innovation. The problems associated with difficult land use approvals are not a result of differences among parties, most problems result from the manner in which the conflict is handled. Conflicts can be handled in three ways: through exertion of power, by relying on recognized rights, and by meeting the interests and needs of all parties. When a landowner begins preparing the land for development without obtaining necessary approvals or an opposition group uses the media to perpetuate misstatements of facts each are exerting power to influence the outcome. Relying on rights might include filing a legal challenge to a local board’s decision or seeking an injunction to stop a project. Working out an agreement that gives parties something they do not already have and are not assured of getting without negotiation, resolves a conflict on the basis of interests.

When the first two strategies are employed in the land use approval process, the result is often “nuclear war”. One party exerts political power and the other exerts financial or complementary political power with equal or (if possible) greater intensity. Once the power plays are complete, the parties will try to enforce their rights by appealing to a court of law or an administrative tribunal. Conflicts that are handled with power and rights are costly, time consuming, and produce poor results because the parties are not engaging their opponents to find out what they want – they only seek to destroy the other side. Sun Tzu would find these approaches less favorable than a strategy that would take without destroying.

Conflicts that are resolved in ways that meet the parties’ interests often take less time, cost less, and, most importantly, produce more satisfying results. In an interest-based negotiation, the parties must begin by taking a close look at what they are likely to achieve from the traditional process, rank the value of their interests, try to understand what the other side desires, and create settlement packages that meet the interests involved. The ingredients of this style of negotiations include getting to know the other side, building trust, maintaining a good working relationship, listening and understanding, and creatively seeking ways of achieving what each party wants. While these approaches are seldom evident in the traditional land use decision-making process, the possibility of reaching agreements that satisfy interests is very likely since such disputes involve multiple issues on which agreement can be reached. 3

While negotiations based on interests may produce better results, many parties in land use conflicts still choose to go to “war” by resorting to power and rights. They choose to do so because negotiating over interests is not easy, especially when faced with multiple parties, multiple issues, different jurisdictions, several decision-making bodies, and intense emotions. When done properly, these negotiations involve a large amount of preparation and groundwork. Our first response to conflict is often the use power or an appeal to inalienable rights and it often takes the intervention of a third party to help us see the opportunities for mutual gain. If Sun Tzu tells us that we have the most to lose by trying to destroy our opponent and Dwight Merriam suggests we make our opponents our allies, how do we change our strategy to an interest-based approach?

Over the last thirty years mediators have established an impressive track record helping parties reach favorable agreements in land use and environmental conflicts. 4 A mediator can organize a process to help the parties figure out what each wants and how to craft an agreement that meets those interests. A recent study by Lincoln Institute of Land Policy and the Consensus Building Institute takes a close look at one hundred land use mediations throughout the country reveals some of the advantages that mediation presents. 5 Eighty percent of the parties involved with mediated land use disputes had a favorable view of mediation and thought that the negotiated results were better than they expected from the traditional process. Ninety two percent of the participants whose cases settled felt that their interests were met by the agreement and 86% also thought that the interests of the other parties were well served. Eighty percent of the participants thought they would not have reached an agreement without the assistance of the neutral mediator. Eighty five percent of the participants thought that the mediation took less time and 91% believed it cost less money than the traditional approach. Even in the 40% of the cases that did not settle, more than half of the respondents thought that the parties made significant progress toward resolution through the mediation process and were generally satisfied by it. All of this information does not mean that mediation should be used in every situation, instead it suggests that it should be considered as an option more frequently. Even Sun Tzu recognizes that some battles must be fought.

Most mediators who are asked to assist in a land use conflict will perform a conflict assessment before they begin a full mediation. The assessment consists of interviews with all the parties who have a stake in the decision to uncover the issues, to understand the interests, and, ultimately, to determine if the conflict is appropriate for mediation. If the conflict is appropriate and the parties are amenable, the mediator will organize a number of carefully structured meetings where all relevant parties can try to reach an agreement with which all can live. If an agreement is reached, it can be presented to the decision-making body for approval with the support of all the relevant members of the community. By submitting a project that has the backing of community groups the battle has been won before the process begins and nuclear war has been averted (assuming, of course, that the local board agrees to adopt the recommendation). 6 The challenge of this approach lies in employing techniques that can help the parties reach an agreement. While not all situations present opportunities for mediated agreement, an experienced mediator can help parties determine the best course of action in a given situation.

Avoiding war-like battles and obtaining workable agreements based on interests requires a great amount of preparation in the beginning: assessment, adherence to principles of good negotiation, and the assistance of an experienced mediator to shape the process and assist the parties. If the land use approval process is, in fact like warfare and the ultimate goal of any general is victory, those of us involved in the process would be wise to prepare extensively for battle, seek ways to satisfy the other side, and recognize that the ultimate goal of war is peace. If we accept this ancient wisdom, we can see that mediators play a crucial role helping the process produce satisfying solutions instead of the destruction and dissatisfaction commonly associated with adversarial approaches.

1 Dwight H. Merriam, Dealing with Citizen Opposition, Lessons Learned. Land Development (Spring-Summer 1999) p.23-28.

2Two good references on the specific ills of the process are The Zoning Game, by Richard Babock and The Zoning Game Revisited, co-authored with Charles Siemon.

3 Many examples exist to illustrate how this principle operates in a real estate and land use context. See J.B. Ruhl, Thinking of Mediation as a Complex Adaptive System. B.Y.U. L.Rev. (1997) 777.

4J. Kevin Healy, Making Mediation a Reality in New York. (212) 48 NYLJ, Feb. 6, 1995 page 1, col. 1.

5 For a more thorough description of the study go to: www.cbi-web.org.

6Go to http://www.pace.edu/lawschool/landuse/conflict.htm. For further description of the assessment process in the context of land use disputes.

                       

Sean F. Nolon

Sean F. Nolon is the Director of Clinical and Training Programs at Land Use Law Center of Pace University Law School where he is also an Adjunct Professor of Law. Mr. Nolon is a certified mediator and the principal member of Nolon Associates, LLC. After spending several years litigating environmental… MORE >