Going to court or the Ontario Municipal Board is the first response by most lawyers and Council members to disputes involving municipalities in Ontario.
But since 90% of court cases settle without trial, this approach needs to be reconsidered by municipalities and their legal advisors. There are better alternatives to litigation in most cases.
One of the first steps involved in bringing a conflict or dispute to an end is to choose the most efficient and cost-effective process for resolving the dispute in question.
Municipalities are quite often involved in conflicts and disputes and should consider Alternative Dispute Resolution (ADR) which is a range of options including negotiation, mediation and arbitration as the primary way of resolving them.
In other countries, such as the United Kingdom, the courts have gone so far as to say that there is an obligation on governments, including municipal governments to consider ADR options because of the potential cost savings involved. In reality the public through their tax assessment, is really paying the costs of dispute resolution in these cases which can sometimes have political ramifications. In today’s world of financial cutbacks and the pressure on municipalities not to increase taxes, ADR is an obvious way to reduce costs.
Conflict often emerges out of what appears to be routine circumstances and if not positively managed, can become a significant impediment to peoples’ quality of life in terms of emotional, financial and community costs. There is almost always an opportunity to manage conflict at an early stage and rarely a situation where one party is 100% at fault when it to comes to issues of conflict.
Conflict cannot always be resolved to everyone's satisfaction but it is certainly worth considering dispute resolution alternatives. Litigation is sometimes necessary, but it is a good idea to try to resolve or manage conflict without resorting to adjudicative processes. Even if only some of the dispute is resolved through ADR and the remainder goes on to litigation, there can still be large cost savings.
In the case of municipalities I have focussed on mediation although arbitration should also be considered in appropriate cases. Individuals and organizations are recognizing that by increasing their understanding of the ADR process they can achieve enhanced outcomes for themselves and others. Municipalities should be at the forefront of this trend
The challenge and goal of Alternative Dispute Resolution is to arrive at a mutually agreeable solution that satisfies the needs of the disputants and ideally can be labelled as a win/win situation to their relevant constitutants.
In fact, often municipal officials find themselves in the role of mediator trying to resolve an issue between residents and developers such as in a planning dispute and sometimes trying to resolve conflict between the public and a municipal interest. In many cases this approach works in other, the use of an experienced impartial mediator can move the dispute along past an impasse to a solution. Whatever the dispute, there are certain principles that can be applied to enhance the outcome and provide a greater chance of a win/win result. Having mediated hundreds of disputes, I know how to use these principles for my clients.
Examples of conflicts affecting municipalities that can be mediated include:
- Air and water pollution problems such as odour, dust or noise;
- Waste management handling and disposal;
- Land degradation and habitat protection;
- Resource management;
- Public access to both public and private land;
- Planning and Zoning including the NIMBY factor, berms, buildings and fences and hours of operation;
- Construction dispute;
- Employment issues, and
- Contract issues.
It makes good sense that most municipal disputes should be resolved among the parties involved through mediation in order to reduce expense; preserve or improve relationships; reduce delay and costs; find a lasting, sustainable solution and avoid a third party imposing a decision.
Mediation should definitely be the primary dispute resolution process when:
- the dispute is local and the importance of outcome to each participant is high;
- the issues are clear;
- privacy is important;
- applicable laws and by-laws are flexible enough to permit a negotiated settlement;
- decision makers are willing to participate, and
- there is no danger to life or safety.
Mediation should not be used if setting a legal precedent is important or if the process is used as a means to delay real action or create an illusion that something is being done. These are not common occurrences.
That mediation is appropriate for municipal disputes is clearly recognized by the OMB which even in disputes that have reached the adjudication stage offers mediation during their hearings. There is also a strong recognition of the value of mediation in municipal dispute in Alberta through various programs offered by the Department of Municipal Affairs.
Mediation offers municipalities a relatively speedy, cost effective and private dispute resolution process. It should be considered as the primary option in every municipal dispute in Ontario.
For further information, please contact me.