INTRODUCTION:
Until recently, land use mediation at any level has been comparatively infrequent. While the success of multi-party public policy or mediated rule making is well documented with many successful
examples here and elsewhere, the unique structure of administrative land use law in Oregon brings
with it its own special challenges. In site specific land use cases pursuit of higher public good is
unlikely to be a motivating factor, whereas it may be a basis for an appeal to reach a negotiated
solution at higher policy levels. To be effective a mediator must have a very clear view of the real
possibilities inherent in our unique administrative law process.
Since 1989, ORS 197.8601 has provided the option of mediation during the pendency of a Land Use Board of Appeals appeal. It has been one of the few methods of stopping, albeit temporarily, the relentless procedural clock of those appeals. With the passage of HB 21922, the awareness of mediation alternatives and their hoped for utility is bound to rise. The new policy is explicit:
197.010 Policy. (2) The equitable balance between state and local government interests can best be achieved by resolution of conflicts using alternative dispute resolution techniques such as mediation, collaborative planning and arbitration.
When local government in its legislative or political capacity has made a commitment to a certain land use result, it may be loath to give that position up while wearing its quasi-judicial hat. From the
opponents point of view, in those land use disputes where defeating a project is the only thing that
matters, that extra bicycle parking rack for the prison guards or landscaping around a garbage transfer
station or a rock quarry, just isn’t going to open up those back yards to those uses. Because in those
situations there is not much to bargain for, mediation may become just another tool for creating
delay.
Due to these consideration, some land use disputes should not be mediated. Additionally, for those cases that may or should be mediated, when and how to mediate become critical considerations for success.
FEASIBILITY ASSESSMENT – CAN THIS DISPUTE BE MEDIATED?
Analytically, the decision to commence mediation requires at least two judgments: (1) that a mediation procedure is more appropriate than the normal administrative procedure, and (2) determining which procedure is most appropriate for the dispute at hand. We will focus on the first of these two considerations. In order to make that decision, the mediator or the evaluator must communicate with the stakeholders. To arrive at an appropriate decision, typically involves the following process based on the analysis of the answers to key questions.
1. What is the relative power of the parties, and how important is this dispute to each party?
As we discussed, with the goal exception exception, in Oregon the local government should be in the driver’s seat. Readers of LUBA opinions will have no trouble discovering that it is exceedingly difficult to overturn a local government approval on any basis other than what upon remand should be a correctable procedural error. Because of the relative administrative law advantage of the local government, buttressed further by substantial planning staff and legal resources, the local government is the party with the greatest degree of power. The first critical step in evaluating the feasibility of mediation is to determine whether or not local government has made legislative or political commitment pertaining to the site. The difficulty arises because the commissioners or councilors with ultimate power are not likely to be the parties to a mediation, since they will have a quasi-judicial role yet to play either now or upon remand. They are likely to send in their planning director, or development director or legal counsel to the mediation. If they have a clear political or legislative position which they publicly favor, it is not likely that they will give it up and that makes mediation problematic. Mediation should only proceed if the local government is willing to say that it will honor the mediated result.
The second step involves analysis of the relative positions of other parties. In issues involving
community concerns it can often be difficult to decide who represents what interests. People may
become parties by virtue of: (1) their position in an organization involved in conflict, i.e., their ability
to make a decision for an organization, (2) their technical expertise or authority, (3) the impact of
decision upon them, or (4) their ability to mobilize political support. The second task then is to
correctly identify all the parties and be very clear about their basis for participation and their relative
power positions.
Each party to a mediated dispute should have actual or potential power or influence which may be
mobilized to settle a conflict in a manner which satisfies its interest. Power in a dispute encompasses
many things. If you have the strongest legal case, your power is increased. If you have greater
credibility or technical reputation, or are able to mobilize political support, or are allied on the side
of local government or if you have managed to get DLCD to intervene on your side of the argument
your relative power position also improves. If one party has the resources to pursue appeals and
another does not, then the power is unequal. The party with disproportionally greater power, if it is
aware of its advantage, is not likely to give it away. One way to view this is to ask whether this the
kind of dispute in which the opposition is likely to commit enough resources to prolong the appeal
process? One way to analyze this point is to ask whether is there anything to be gained through
settlement that is of value to the party that is likely to ultimately prevail, such as time.
2. Taking into account the relative power and commitment of each party, if this dispute continues on its present course, what is the most likely procedure by which it will be resolved?
3. Taking into account the relative power and commitment of each party, if this dispute continues on its present course, what are the most likely substantive outcomes and what are their relative probabilities?
The second question dealt with a choice of procedure. If the dispute is likely to be appealed, than
mediation is only a delay. If the rights of parties or a desire to create legal precedent drives the
disputants, the case should probably continue on its appeal path unimpeded. The third question deals
with actual outcome. This is in effect a risk analysis – what are the odds for the parties of losing or
winning in such a way that the organization or group achieve a relatively small return for great
expenditure of resources. For example, a remand from LUBA that only allows the decision maker
to strengthen its previous decision. The answers to both questions are indispensable to framing the
real interest of parties. Correct framing of those interests is a key to a mediated solution.
4. Taking into account the predictions for Question #2 and #3, what are the potential benefits/costs of the current procedure by which the dispute will be resolved? These benefits and costs could include:
Analysis and comparison of answers to these question should yield an answer as to whether mediation is justified as leading to a likely settlement.
5. Given that the case has a chance to be successfully mediated, what is the optimum time to mediate?
The answer to this question will vary. It is likely that best settlement results can be achieved when
there is a greatest degree of uncertainty about the outcome, at the beginning, especially before the
decision maker, through staff or by its political or quasi-judicial processes has made its position
public. But sometimes we can get so wrapped in the notion that mediation is a good in itself, that we
forget to make the assessment as to whether mediation is the best method. Sometimes, given the
“expedited” nature of the appeal process, it may be better just to get the administrative decision made.
Frequently, mediation is not ripe until certain rights of parties are preliminarily or finally established,
so that the ability of one to cause harm, or the benefit of compromise becomes apparent. As an
attorney representing parties in a case which was settled after an almost year long negotiations
process, I know that our ability to reach a settlement was only possible after our basic position was
established first in LUBA and than Court of Appeals. That is when the opponents of the local
government decision established their credibility and staying power. Opponents also understood that
upon remand, the local government could, if it wanted to, correct its errors and improve its findings.
The local government knew, however, that they might have to go through all of this again and a few
more years may pass before final resolution. The key was that both sides saw delay as harmful to
their causes.
MEDIATION PROCESS
Weighing of these considerations should also provide some clue as to the best way to structure the process. The alternatives include anything from “shuttle diplomacy” to a “conference” of all the
participants. The participants should be involved in setting up the structure. To the extent possible,
and if the budget and time allows, this should be their first experience of reaching an agreement.
The precise structure of the mediation will have to be established from the information gathered through the assessment process. A note of caution is in order. Fiscal considerations are crucial when dealing with publicly funded processes. While customarily parties share equally in the cost of
mediation, some mediation may be paid for through grants or by local government. The considerations outlined below are frequently time consuming. It is however not disputable that the better the
preparation and analysis the better prognosis for settlement. Good mediation of complex or multi-
party disputes involves more than showing up in a room with a large table, having briefly looked at
the file. The full process, done to maximize the chances of settlement, takes time and money, even
if that is typically far less than full scale litigation. Contentious, multi-party disputes should not
proceed without at least a two step process, starting with an evaluation, as outlined above. The
second step involves selecting the type and structure of the mediation process, and is beyond my
intended scope for this article. The following summary of principles for a Mediation or any Complex
Community Dialogue should be used as a checklist:
In conclusion, as we mediate more and more site specific land uses cases in Oregon, we will all become smarter and wiser about what is involved in maximizing opportunities for mediated settlements. For now, careful attention to the questions and factors raised above should offer a realistic approach to these conflicts. Public policy disputes entail very similar considerations and procedures. In those situations relative power of parties may not be as lopsided as in those cases where the law permits local government so much discretion. Greater diffusion of power relationships makes mediation more technically complex, but also produces greater opportunities for creative settlements.
197.830 Review Procedures. (9)(b) Within 10 days after service of notice of intent to appeal, the board shall provide notice to the petitioner and the respondent of their option to enter into mediation pursuant to ORS 197.860. Any person moving to intervene shall be provided such notice within seven days after a motion to intervene is filed. The notice required by this paragraph shall be accompanied by a statement that mediation information or assistance may be obtained from the
Department of Land Conservation and Development, the coordinating agency for Natural resources Section of the
Public Policy Dispute Resolution Program.
A version of this article originally appeared in the Los Angeles & San Francisco Daily Journal on April 5, 2021.An Offer You Can’t Accept California Code of Civil Procedure section...
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