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its position. Following this joint session, the mediator begins
<br />meeting with thc parties and their attorneys separately and
<br />confidentially. During these private meetings, the mediator
<br />works with each side to discuss the strengths and weaknesses of
<br />the case and to examine possibilities for settlement. The
<br />mediator then develops a plan for matching a dispute resolution
<br />method with the parties and the issues the)' have presented.
<br />This plan needs to be shaped and tailored to the particular
<br />dispute. This stage of thc mediation is the most complicated
<br />step in the process and involves give and take by both sides and
<br />skillful judgment by the mediator. Once a final' mediation plan
<br />is developed from this bargaining session, it is agreed upon and
<br />set for implementation.
<br /> Studies show that the parties to a mediation are likely to
<br />abide by the terms of the resolution because of the large role
<br />the)' played in working out an agreement. In the United States,
<br />90 percent of mediation cases end with a successful settlement.
<br />Approximately 80 percent settle on the first da)', and the other
<br />10 percent settle within a month of the initial discussions.
<br />
<br />Advantages
<br />Parties to a land-use dispute can realize several benefits from
<br />using mediation. The process is quick, flexible, open, and
<br />nonbinding. It saves time and money and preserves an ongoing
<br />relationship between the parties. It is informal and not governed
<br />by strict evidentiary rules and procedures. The session is
<br />confidential. Unlike arbitration or trial, the parties can reveal as
<br />much or as little information as the), like. To encourage open
<br />negotiation and offer protection in the event the dispute cannot
<br />be settled, the parties often sign a confidentialiD' agreement at
<br />the outset. In most states, laws exist to ensure that nothing
<br />stated or exhibited during mediation can be used in a later
<br />court proceeding.
<br /> There are other advantages:
<br />· Mediation encourages the early resolution of the dispute
<br /> before time, enerD', and money are needlessly wasted.
<br />
<br />· Mediation forces both sides to look seriously at the merits of
<br /> their positions at an early stage.
<br />
<br />· Mediation is a no-risk option; the process is voluntary and
<br /> nonbinding, and either parU, can walk out at any stage.
<br />
<br />· In mediation, no fact-finding or final decision is rendered by
<br /> the mediator to create leverage in any subsequent
<br /> proceedings.
<br />
<br />· The mediator has no stake in the process, except to achieve a
<br /> settlement. Both sides retain a high degree of control over
<br /> the process.
<br />
<br />· ' Use of a mediator takes the bravado and posturing out of
<br /> settlement discussions, thus promoting reasonable dialogue.
<br />
<br />· The only risk is the time devoted to attending the session
<br /> and the cost of the mediator, which is minimal compared
<br /> with the expense of litigation.
<br />
<br />Disadvantages
<br />The process does have its disadvantages. Some of the advantages
<br />listed above can even be considered disadvantages under certain
<br />
<br />Mark Dennison is an attorney and author who practices
<br />environmenta! and land-use law in Ridgewood, New Jersey.
<br />
<br />circumstances. For example, if one side believes that it has a
<br />veD' strong case, it may not want to enter into mediation, which
<br />tends to split the pot. Litigation may be the preferred option
<br />when the facts clearly favor one side. Ordinarily, however,
<br />neither the land-use authority' nor the private landowner will
<br />have an open and shut case, in which case the parties would
<br />likely settle before going to trial. Mediation might also be
<br />considered disadvantageous when a neighborhood group seeks
<br />the long delay associated with litigation, hoping that a
<br />developer will eventually abandon its proposed project.
<br /> Because mediation is nonbmding, the fina~ resolution is not
<br />legally enforceable if either side should fail to honor the
<br />mediation agreement. This potential drawback seldom causes
<br />problems, however, because once the parties have negotiated a
<br />mutually agreeable resolution, the probabiliW of renewed
<br />conflict is small.
<br />
<br />To Mediate or Not to Mediate
<br />Mediation is not always possible. Patent violations of zoning
<br />ordinances, such as siting a liquor store next to a school,
<br />operating a machine shop in a single-family zoning district, or
<br />erecting a commercial office building without a building permit,
<br />generally are not resolvable through mediation. In such cases, the
<br />local zoning authority usually is obligated to enforce the zoning
<br />ordinance. However, mediation ma), work well in reaching
<br />agreement with a landowner on the terms and conditions of a
<br />variance, building permit, or development proposal.
<br /> Two land-use disputes over development of wetland areas in
<br />Oregon illustrate the benefits of mediation. In the Bott's Marsh
<br />case, a dispute arose over development of a wetland area in the
<br />Nehalem Bay estuary in Tillamook County. A developer proposed
<br />filling a wetland area large enough to accommodate the siting of a
<br />marina, motel-boarel, restaurant, shops, and parking facilities.
<br />Strong opposition to the project pushed the case into litigation.
<br /> Before undertaking the project, the developer applied for fill-
<br />and-remov~al permits from the U.S. Army Corps of Engineers
<br />and the Oregon Division of State Lands (DSL). Even though
<br />the developer knew about the controversy surrounding the
<br />proposed development, he decided to apply for the permits
<br />without negotiating with relevant government agencies and
<br />interest groups. The permits were denied, and the developer
<br />filed a petition against DSL in Tillamook County Circuit
<br />Court, which ordered DSL to issue the permit. DSL then
<br />appealed to the Oregon Court of Appeals, which overturned the
<br />lower court ruling. Now the developer is planning to appeal to
<br />the Oregon Supreme Court.
<br /> So far, the developer has spent more than seven years trying
<br />to obtain necessary permits. DSL has incurred significant legal
<br />fees, and costs to the developer for attorney and consulting fees
<br />are estimated to be at least $250,000.
<br /> In contrast, the Hedges Creek Marsh case involved
<br />development of a 140-acre parcel, including 48 acres of
<br />freshwater wetlands, for residential and light industrial use.
<br />Tualatin's wetlands protection ordinance requires that the
<br />developer work out all conflicts with the applicable state
<br />agencies and interest groups before applying for municipal
<br />approval of the proposed development. In addition, the
<br />developer made changes to its proposed development plan that
<br />required changes in a previously approved Corps of Engineers
<br />Section 404 (Clean Water Act) regional permit and the issuance
<br />ora DSL fill-and-removal permit.
<br /> Many parties had a stake in the proposed development's final
<br />configuration. The developer chose to negotiate with the
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