Consultation, negotiation, facilitation, and mediation draw upon the use of similar tools to achieve dispute resolution.
Ground rules
An early agreement on appropriate behaviour during a meeting is important, to avoid outbursts or 'playing to the audience'. Both will jeopardise frank discussion, and possibly divert the meeting from its purpose. The facilitator or mediator will usually try to introduce rules of courtesy and mutual respect, such as:
- People have the right to speak without interruption
- Long speeches will not be allowed
- Abusive behaviour will not be tolerated
- News media may not attend the meeting
- Participants must clarify their mandate to speak on behalf of groups or the Council.
Depending upon the stage of the conflict, the degree of confidentiality can also be agreed upon at the meeting.
Peer review of expert evidence
At times, parties need to be convinced that professional evidence is trustworthy. Even the most professional expert can overlook aspects of a proposal and its effects. Decision-makers should always use appropriate experts for peer review for key matters in dispute.
Joint development of a single text
Parties can work together on a text such as policy and rule modifications or resource consent conditions. This approach is useful for keeping all parties up to speed with complex documents.
When using a joint development of a single text:
- Use hard copies of the texts if negotiators are working in pairs.
- Destroy original copies once the parties have agreed on the changes, so there is no confusion about what has been agreed.
- Use electronic devices such as track changes in a Word document, to clarify instantly what a negotiator is proposing and what is agreed on by all the parties.
- Use a data show projection of the text with track changes when many parties are involved. This helps the parties to maintain focus on the wording and to understand its context.
Heads of agreement
Heads of agreement is an agreement in principle that outlines the main points resolved during negotiation or mediation. It is often signed immediately after resolution is reached and ensures that parties do not back track before the more detailed agreement is signed. For instance, the heads of agreement may state that costs will be shared equally, while the detailed agreement may assign the specific amount to each party.
Side agreement
Conditions that apply to a third party, or to land outside the site of the application are ultra vires and cannot be created or enforced. A side agreement can be useful to deal with solutions that are inappropriate to handle within consent conditions. For example, the parties might agree that excavated material from a consent site will be placed on a neighbour's property to form a bund to reduce noise. A side agreement would contain this condition and could be enforced through the civil courts.
A side agreement is a contract between parties and does not involve the decision-maker on the resource consent (usually the council). This means the council cannot and will not approve or enforce a side agreement. Each party should have a side agreement checked by a lawyer before signing it.
Tips for plan developers and resource consent applicants
- Actively seek out the likely potentially affected parties.
- Share information willingly from the outset.
- Make sure the information is clear, easily understood and tailored to the audience.
- Expect to be confronted with strong negative emotions at the early stages of the process.
- Recognise that you may not be trusted and consider ways other parties might work with you. Methods include:
- For large projects, funding an advocate for interested parties or appointing an independent facilitator, in consultation with them
- For pre-hearing meetings, encouraging a council to appoint independent facilitators.
- Be willing to persist in finding solutions, including modifying the proposal, putting forward conditions, and considering side agreements.
- Have agreements checked by a lawyer before you sign them.
Tips for submitters
- Recognise that you have more opportunities to influence the outcome near the beginning of the process than towards the end.
- Group together with other submitters who have similar interests.
- Get realistic advice on the likely outcome from the Council decision or Environment Court decision.
- Research and keep asking questions until you fully understand the proposal and its consequences.
- Inform yourself sufficiently to ask questions of the Council and the applicant; find out what standards have been applied in similar situations.
- Develop a relationship with the other parties and negotiate for information and changes yourself or through your representative.
- Initiate negotiations.
- Prepare for negotiations or mediation by
- Appointing and coaching your negotiators
- Deciding what you want to achieve
- Deciding on their mandate to represent you
- Trying to understand what will motivate the other parties
- Agreeing on the options that can be offered and the standards that should be applied
- Knowing the potential consequences of not reaching an agreement.
- Have agreements checked by a lawyer before you sign them.
Tips for Councils
- Adopt dispute resolution policies and convince parties that it is in their interests to use the opportunities.
- Recognise that early active management of disputes is in a Council's interests, as it eventually becomes party to appeals and references.
- Ensure parties are well informed about processes and choices.
- Build pre-hearing meeting time into the plan change schedule.
- Appoint independent facilitators. Unless the proposal is small and low risk, it is usually difficult for the reporting officer handling the consent application or plan change to also be the facilitator. Make sure all parties perceive that the facilitator is unbiased.
- Use ss37 and 37A, in consultation with applicants, to extend the pre-hearing timeframes if that would be useful.
- Initiate peer reviews of legitimate outstanding issues. This may lead to the proposal being modified, or the dispute being laid to rest.
- Remember that views may not be entrenched, even though they are expressed strongly.
- If the submitters at a pre-hearing meeting are not completely opposed to a development, Council staff can introduce consent conditions for discussion.
- When entering into negotiations, once Council becomes a party to an appeal, make sure that the Council representative has a clear mandate to make decisions to a certain level (some local authorities ensure that the chairman of the hearings panel attends the mediation).
