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With the number and intensity of land use and environmental conflicts escalating, we need to consider mediation as a legitimate alternative to litigation. Otherwise, we are destined to continue living out Albert Einstein’s definition of insanity — doing the same thing over and over, and expecting different results.
The recent demise of the Plaza de Panama plan for Balboa Park is only the latest indication of the need for a better way to resolve land use conflicts in San Diego. The plan envisioned diverting vehicle traffic at the Laurel Street entrance via a bypass bridge, eliminating parking from the Plaza de Panama, converting the western segment of the Prado into a pedestrian way, constructing a subsurface parking structure on the site of the Organ Pavilion parking lot, and restoring the existing lot to parkland.
At the urging of Mayor Jerry Sanders, philanthropist Irwin Jacobs spearheaded the plan, backed by the Plaza de Panama Committee comprised of Balboa Park institutions and local business supporters. Soon after the plan’s unveiling in 2010, Bruce Coons of the Save Our Heritage Organization and a coalition of local groups announced strong opposition, based primarily on what they viewed as desecration of a historic landmark. SOHO threatened to sue, alleging violations of the city’s general plan, the Municipal Code and the California Environmental Quality Act.
Seeing an opportunity to defuse what had rapidly become a major civic confrontation, the National Conflict Resolution Center persuaded the two leading parties to enter into mediation, in an attempt to find a mutually acceptable alternative. I served as the mediator. For three months, Jacobs and Coons deliberated, either in person or by e-mail, with my assistance. While the specific contents of the mediation discussions remain confidential, I can report that Jacobs and Coons productively examined a range of alternatives, some offered by third parties. The goal was to mitigate SOHO’s concerns while achieving the key objectives of the Jacobs plan. But just as the parties appeared to be making progress, the City Council ignored the mediation and approved the original plan. At that, the mediation ended.
The rest is history. SOHO sued and the parties waged a seesaw battle in the courts for the next several years. During that time, the project remained stalled and costs steadily escalated. Although the city and the Jacobs committee eventually prevailed on the legalities, political and economic realities effectively killed the project. One element survived, though, when Mayor Bob Filner removed parking from the plaza and made it a pedestrian space.
Suppose the City Council had allowed the mediation to run its course. Would the parties have arrived at a settlement? Regrettably, we’ll never know. But we do know, from experience, that mediation often leads conflicting interests to find mutually acceptable resolutions.
This is important, and becomes more important all the time, because of the seemingly endless flow of land use conflicts in the San Diego region — conflicts over large land development projects such as Newland Sierra in North County, over public projects such as redevelopment of the Mission Valley stadium site, over policy documents such as the county’s Climate Action Plan and over efforts to change local communities like the Morena Corridor Specific Plan. Every one of these has been through heated regulatory proceedings, and all either are in litigation or can expect to be shortly. Not one has been the subject of mediation.
The primary virtue of mediation is that the parties voluntarily meet and seek compromise, with the aid of a neutral, trained mediator. Parties’ attorneys may be present, but not necessarily. The mediator does not act as a fact-finder or judge, but rather uses well-established techniques to move the parties toward consensus by emphasizing the exchange of information and by identifying the parties’ most important underlying interests. Unlike an outcome imposed by a legislative body or a court, which tends to be an all-or-nothing result, the parties in mediation can craft a settlement of their own design. It may involve elements that cannot even be raised in more formal proceedings. The process is sufficiently flexible that it can be tailored to fit the needs of individual disputes, including bringing in other interested parties to add their perspectives. And, if no agreement is reached, the parties may still seek relief through legislative or judicial processes, having not given away any of those options.
Sometimes, the parties resolve only portions of their dispute, but this has value in narrowing the conflict and typically improving the parties’ relationship. Mediation of complex issues may take days, weeks or months, but the cost is relatively minimal and the rate of success and satisfaction is far greater than with the alternatives. Mediation is more likely to succeed if it commences early in a conflict, before positions harden and the parties become invested in other strategies.
With the number and intensity of land use and environmental conflicts escalating, we need to consider this alternative. Otherwise, we are destined to continue living out Albert Einstein’s definition of insanity — doing the same thing over and over, and expecting different results.
Cary Lowe is a land use attorney and planner who served as mediator in the Plaza de Panama dispute.