The Town of Shelburne is participating in an important project in Vermont to increase the use of mediation in zoning permit applications. Select cities and towns throughout the state are working with Green Mountain Environmental Resolutions (GMER) (www.gmer.org) and the Consensus Building Institute (CBI) (www.cbuilding.org) on this project. The Windham Foundation and the JAMS Foundation are funding this project with additional support from the Orton Family Foundation and the Lincoln Institute of Land Policy.

 

Mediation is a fast and cost-effective alternative to litigation that can assist parties in reaching mutually satisfactory settlements. Mediation can also help rebuild relationships, create tailored solutions, and improve implementation because the involved parties craft the agreement themselves with guidance from a professional mediator.

 

Although mediation is widely used in some areas of law such as family and employment law, its use in land use law is far from its potential. The goal of this project is to select the right cases for mediation and match them with appropriate mediation assistance.

 

In order to select cases that would benefit from mediation, Matt Strassberg of GMER will perform mediation screenings on contested zoning permit applications. He will ask the parties questions such as what interests are most important to them, whether the parties are interested in working collaboratively to achieve consensus, and whether there are any obstacles to using mediation to resolve the dispute. The interviews will be brief and will not result in any charges to the parties. The interviews will be kept entirely confidential.

 

Based on the interviews, he will make a non-binding recommendation to the parties as to whether or not mediation may help the parties reach a mutually satisfactory resolution. The report will only make broad conclusions on why mediation may or may not be helpful without revealing any confidential information.

 

The decision whether or not to engage in mediation is completely voluntary. Should the parties determine that they would like to pursue mediation after this initial screening, it is up to the parties to hire any qualified mediator they choose. A list of mediators is available from the Environmental Court.

 

 

 

Mediation is a process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences. Mediation leaves the decision making power totally and strictly with the parties. The mediator does not decide what is "fair" or "right."

 

 

The mediator acts as a catalyst between opposing interests attempting to bring them together by defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will. 

 

The mediator does not represent any party and has no bias against any party or their position. Parties enter into agreements voluntarily. Agreements are never imposed on parties.

 

 

Mediation generally begins with a joint session to set an agenda, define the issues and ascertain the position and/or concerns of the parties. The joint session is usually followed by a separate caucus between the mediator and each individual party or their counsel. This allows each side to explain and enlarge upon their position and mediation goals in confidence. Depending on the nature of the dispute and the dynamics of the mediation sessions, the mediator may alternate between joint and private sessions until the parties have resolved their differences, decided to reconvene for additional sessions, or determined that further mediation is no longer constructive. 

 

 

Mediation can be much faster than the hearing process. If a settlement is reached through mediation, the Planning Commission still needs to approve the terms of the settlement. Nevertheless, mediation is usually significantly quicker than a full hearing and takes a fraction of the time of a case that goes through the appellate process.

 

Mediation is much more affordable than a hearing. Parties can attend mediation sessions by themselves or choose to bring an attorney. Regardless, it is much cheaper than hiring expert witnesses to testify at a hearing.

 

Mediation allows parties the opportunity to tell their side of the story in their own words. In hearings, lawyers and expert witnesses do most of the talking. Mediation is less formal and allows parties an opportunity to express their feelings.

 

Mediation allows parties to focus on the issues that are most important to them, even if they are not directly related to the Act 250 Criteria at issue. 

 

Mediation can allow a project applicant, neighbors, and any state or local governments to resolve other issues related to the dispute and agree on ways to handle any future problems related to the project.

 

 

The Environmental Court maintains a roster of mediators who are professionally trained. You and the other parties can choose a mediator from this roster or any other qualified mediator.

 

The cost of paying the mediator is often split equally among all the parties, however, which party pays what percentage of the mediator’s fee (or if one party will pay all the cost) can be discussed and negotiated, when the parties agree to mediation or in the mediation itself.

 

Think about what points you want the mediator to understand. Think about the weak points in your case. Think about the strong points of the other side. Think about reasonable ways to resolve the dispute that would satisfy you. Realize that there may be many ways to resolve the dispute that satisfy your interests that you have not thought of yet. Mediation works best when parties are flexible on how their interests can be met.

 

 

Bring all the documents and drawings that you think are important to help explain your side of the case. Bring extra copies for the other parties and the mediator. Have someone at the mediation that has decision making authority for your side.