OMB Mediation: Demand on the Rise

NRU
July 22, 2015
By Edward LaRusic

Experts say that given how successful board-assisted mediation has been in resolving complex land use planning issues, the province should look at expanding its use. However, the board says it lacks the resources to take on more mediation than it already currently does.

In 2006, the board introduced initiatives to encourage parties to use mediation to resolve disputes. Nearly a decade later, OMB-assisted mediation has increasingly become a desirable option, enabling stakeholders to avoid costly and lengthy hearings.

Board associate chair Shing Wilson Lee is the one who chooses which members and which fi les will be involved in mediation. He told NRU that many courts and tribunals were asking a decade ago whether there could be benefits to introducing mediation, and the OMB was no different. It was seen as a good alternative to hearings that are expensive, time consuming and adversarial by nature.

“[Board members] asked ‘why does there have to be a winner and a loser?’ We started learning about this ourselves, learning by trial and error...[OMB mediation] was built brick by brick over the last 10 years. Slowly and gradually, it has now built up great momentum. Now everybody wants it. The success is killing us.”

Solicitor Adam Brown (Sherman Brown Dryer Gold) told NRU that he has seen how successful board-assisted mediation has been for his clients and thinks the province should make changes to the Planning Act to make mediation mandatory at the OMB. Brown typically represents developers at the board and of the six mediations he was part of in the past year all were successful at resolving or narrowing down the issues.

“The reason is, [mediation] works. If you walk into mediation with no preconceived ideas about what you want or don’t want, and walk in with an open mind, it’s amazing what you can get done.”

Brown said that one reason for the shift to encouraging mediation is due changes in the industry. Developers want their applications approved in a timely manner. Residents’ groups are more informed and educated about planning, and more willing to negotiate. Meanwhile, municipalities are stretching fewer staff over more planning applications. All three stakeholder groups benefit from avoiding lengthy and costly board hearings.

Planner David Butler (Butler Group (Consultants) Inc.) agreed with Brown that mediation can be extremely helpful, particularly to the residents and municipalities with whom he typically works. He’s been involved in a dozen or more boardled mediations and all were successful. He said the province should expand the use of board-assisted mediation as an outcome of its upcoming review of the Ontario Municipal Board. Mediation can be the good news story that isn’t often reported.

“When it’s win or lose, when both sides are rolling the dice and the ratepayers lose, they generally complain. They don’t think the board member got the facts right, they don’t like the decision for whatever reason. I’ve never heard a ratepayer group complain that the board didn’t try and really help them in a mediation.”

Board members, Butler said, can use mediation to really listen and get to the crux of any planning issue. And they can speak frankly. He’s even been involved in one case where the board got a developer to put up the money for a ratepayer group to hire a planner.

“[OMB mediators] can say to the different parties, to the developer, ‘if I was hearing this, I don’t think you’d get that height. I think you really should bring the height down somehow.’ And to the ratepayers, ‘there’s a building across the street that’s the same height. The chances of you getting that height down is maybe 5 per cent.”

Between 2006 and 2013, the board conducted about 500 mediations, an average of 71 per year.

While this only represents about 4.5 per cent of all the files the board dealt with during that time period, many of the files were for one-day hearings that are generally inappropriate for mediation.

Mediation is provided by the board at its discretion, at no cost, and is often used for the most complex files - such as appeals related to municipal growth plan conformity - and contentious development applications. Lee estimated that about 80 per cent of all mediations in recent years could be judged to be success at narrowing issues or resulting in settlements.

Lee said that despite the board’s success, increasing the number of cases it can mediate would be difficult, and he doesn’t think mandatory mediation would be helpful. Even if the board had the resources to mediate every file - which he said it doesn’t - mediation works best when the parties approach the board to work out a solution, not when it’s imposed.

One of the biggest constraints on any expansion other than money is good mediators. Only vice-chairs and Lee himself typically mediate disputes, because planning issues are complicated. The mediators, he said, need knowledge in a variety of subjects, including planning, architecture and transportation.

“It’s like building any institution. You can’t build it overnight...you nurture the pool of talents, and then select from the pool of talents your mediators,” Lee said, noting that the board is constantly educating and training its members.

“We need time and we need resources on a continuing - but increasing - basis [to undertake more mediation].”

What Lee would like from the province is for it to understand how useful mediation has been for the board.

“A lot of people would like to say ‘just give me more money.’ I don’t say that. By gaining more  understanding, appreciating and increasing knowledge of what we’re doing and how we’ve been evolving, and how the stakeholders have been responding and it can draw the conclusions from there.”