By Ian McKendry *
I was reading an article on an American website recently and came across a quote that made me think about Local Government in Australia. You might think the quote an unlikely pointer to Councils here and the behaviours and attitudes often seen in Councillors and staff:“Conflict management systems are an emerging phenomenon in American corporations … in many companies with strong Alternative Dispute Resolution (ADR) policies, ADR isn’t simply a set of techniques added to others the company uses but represents a change in the company’s mindset about how it needs to manage conflict”. (David Lipsky and Ron Seeber, The Appropriate Resolution of Corporate Disputes: A Report on the Growing Use of ADR by U.S. Corporations. Ithaca, NY: Cornell/PERC Institute on Conflict Resolution, 1998) It was that last bit – which I have italicised above – that caused me to sit up. Why?
Like any organisation, Councils have plenty of potential for conflict. In fact, the complexity of Local Government operations and decision making arguably ‘builds in’ factors which ramp up this potential.
Comparisons with the private sector are difficult due to the following factors.
- The political dimension – an elected ‘board of management’.
- The balance between the role of elected representatives and the statutory responsibilities of senior staff.
- Councils making decisions affecting the broader community, in the public interest.
The surprising thing is that many, perhaps even most, Councils do not have a “mindset about how it needs to manage conflict”. To be sure, complaints mechanisms are common, but modern organisations are realising that even though case by case dispute resolution is important and valuable, if these processes are left to stand alone without supporting structures, only the symptoms and not the causes of organisational conflict are being addressed.
Too few Councils recognise that it is possible to anticipate and channel conflict, and in doing so reduce costs, improve decision making, and diminish sources of friction within Council, and between Council/community/applicants. Thus many Councils do not have an overall strategic plan for managing conflict, when it is relatively simple to develop innovative ways of reducing unnecessary litigation and solving disputes when they arise.
Awareness of mediation/Alternative Dispute Resolution is growing because of the frustration with the high cost, delays and adversarial nature of litigation, and the growing awareness by Councils of the need to minimise the number of matters proceeding to Court.
The Public Accounts Committee of the NSW Parliament in its 1998 report “Changing the Culture: Dispute Management in Local Councils”, concluded that “…the implementation of ADR has the capacity to reduce legal expenditures incurred by local Councils and at the same time build bridges and strengthen bonds between Councils and their local constituencies”.
Mediation is a key aspect of ADR, and is becoming a valuable tool for some Councils in managing contentious planning and development disputes. Often, however, the mediations are carried out on a ‘one off’ basis. While this can be effective, a mediation program that has a framework around it ensures a coherent and consistent approach.
It also helps Councils to address the following key questions.
- When is a matter suitable for mediation?
- When should mediation be introduced?
- How does mediation impact on Council’s professional staff?
- How does mediation meet community needs and expectations?
Mediation has a proven successful record with achieving good outcomes in development matters, but it is rare for Councils to introduce mediation sufficiently early. The practical integration of a dispute management program into Council’s existing planning and development control system and procedures is highly desirable. This will include the steps that need to be taken before lodgement of a development application to Council and at the assessment and formal consent stages.
A policy to steer contentious matters to mediation before concepts are ‘set in concrete’ can be very effective.
Mediation can also be effective in the tricky area of relationships between staff and Councillors. Increasingly, Councils are becoming aware that a breakdown in the necessarily close and trusting relationship between senior staff members and Councillors – perhaps the Mayor – quickly becomes a drain on the effectiveness of the entire Council. Morale suffers, meetings can be advertisements for internal dissention, and the community quickly becomes aware that something is wrong.
Mediation draws the strands of the dispute together in a confidential process that assists the parties to accept change, alter entrenched behaviour patterns, and perhaps consider options for their individual futures.
Councils are complex bodies. Conflict is inevitable, both internally and with the community. Mediation and other ADR tools are effective in helping minimise the destructive elements of the conflict, but this effectiveness is limited when decisions to employ the tools are taken on an ad hoc basis.
A framework, such as a clear, professionally developed dispute resolution policy, is essential to secure the full range of benefits that are available. In putting such a framework in place, Councils may also see the benefits of contracting with dispute resolution specialists who are aware of innovation, best practice and standards.
* Ian McKendry’s Melbourne based consultancy practice McKendry and Associates specialises in mediation, community consultation and policy development in Local Government. Ian is also the Victorian Associate of Mediate Today Pty Ltd, Australia’s largest dispute resolution agency. For further information telephone (03) 9387 4590 or email ifmck@ozemail.com.au
