The judges have made the position of the courts very clear that where public authorities were in dispute, they should go the extra mile to resolve their differences by dispute resolution methods, rather than rushing to court. As a former Lord Chief Justice in Cowl v Plymouth said, "Today sufficient should be known about ADR to make the failure to adopt it, in particular when public money is involved, indefensible".
So where two UK local authorities were in conflict, both agreed that an independent facilitator should be appointed to help them sort out their problems.
My journey as the jointly appointed facilitator took me to the Midlands, and one day was set aside for the facilitation. One local authority played host, providing rooms and facilities for the parties and their legal teams. The respective Chief Executives (CEO's) attended as spokespersons for their authority, supported by managers and technical officers - either within the building or at the end of a phone.
The issues that gave rise to conflict were complex. Re-organisation of boundaries and changes in statutory responsibilities had placed important and valuable land at the heart of the dispute. In short, both councils believed that they owned and controlled the land, and that future profits on its sale were theirs to spend.
It is important to observe, had the matter proceeded to court, that a substantial portion of the land value would have gone in costs. Neither authority had a clearly winning case, and both faced the risks of failure and consequent public criticism. It was clear that the elected leaders of the councils had no stomach for a legal battle.
The facilitation required technical knowledge of issues relating to real estate, of local authority responsibilities and restorative practices. The dispute had brought both council's managers into conflict and relationships were strained. They needed resolution of the dispute, and also repair of their working practices and arrangements, particularly in relation to methods and styles of communication.
Certain areas of communality quickly emerged. It proved important for these to be identified and recorded as part of the groundwork leading to the meeting. This aspect of the appointment proved yet again the importance of spending time with the parties separately before convening a joint meeting.
Profit from the sale of the land was central, and was easy to estimate with the assistance of the estates departments. This provided a notional 'joint pot', but one which - due to local authority accountancy provisions- could not simply be shared at will. Local authorities must account for full value on sale of land, and pragmatic agreements to share profit are not available to them.
We examined what was possible. Land can be both an asset and a responsibility. The land in question was clearly a financial asset, but other land on the authorities' borders existed that constituted a liability to the owners and a potentially valuable asset to the neighbouring authority, for it connected areas of recreational use which were currently not well served by access. Additionally, there existed further parcels of special use land that were coveted by the adjacent authority.
The consequence was a deal brokered to meet both parties' special interests...typical of the 'win-win' outcome that mediators love. We were able to move easily to capture a series of land exchanges, agreed by the CEO's, and relished for electoral reasons by both leaders of council.
There remained the issue of the local authorities working together in the future. Our facilitation process - involving discussion, ideas-storming, testing possible outcomes and dispute management - had provided a good learning template for the CEO's. Managers saw the importance of separating issues from personalities, and engaging on them in a neutral context. Here, we captured a memorandum of working practice, which each manager wished to cascade down to others in their respective authorities.
The facilitation was completed in the day at a tiny fraction of the cost of litigating. Arrangements for land transfers were handled in house over the next 28 days, and the deal was completed within 36 days. Check-back revealed that both authorities continue to work seamlessly. It is not known yet whether the elected members will be returned to power, but their decisions appear to have popular public support.
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