In September, King County Superior Court launched a pilot program to explore whether mandatory mediation can help resolve disputes earlier in litigation.  Under the program, approximately 1,800 randomly selected cases will receive a modified case schedule that will include two additional deadlines: a deadline for submitting a mediation plan and a deadline for completing mediation before trial. The pilot program will provide a statistical analysis to study the effectiveness and potential cost savings that mandatory early mediation could provide both litigants and the court.

This superior court program raises the question of whether a similar effort to encourage early mediation could also help resolve land use litigation at the administrative level.  In the midst of significant budget cuts at the local level, the promise of potential cost savings may be appealing to local governments. 

The Land Use Mediation Focus Group, a joint task force formed by the KCBA and WSBA, shared some early conclusions at a recent  CLE “Land Use Mediation – Can it work?”.  The group cautiously advised that even when circumstances are favorable for resolution, land use litigants tend to not utilize use mediation as often as litigants in other legal areas.  

Meanwhile, Kitsap County has implemented a formal mediation program.  In 2009, the County adopted an ordinance requiring mediation as a prerequisite to appeal certain land use decisions.  Codified in the Kitsap County Code, the ordinance requires mediation for appeals of Type I and Type II decisions, and encourages mediation for appeals of Type III decisions.  The ordinance also authorizes the County to engage in mediation with a project applicant before the County renders a final decision, so long as the contested issues are appropriate for mediation.  The County pays for the costs of mediation if the parties choose to use the dispute resolution center of Kitsap County, but parties must share mediation costs if they decide to use a different mediator.  

This time next year, we will hopefully know more about the value to the County and litigants, if any, of mandating mediation in the land use process. Kitsap County’s ordinance includes a process review provision that requires the County to study the mandatory mediation procedure’s effects in September 2011.  If the program demonstrates a significant cost savings for Kitsap County, watch for other jurisdictions to follow suit and require a mediation step in their land use decision making process as well.

Whatever the results of these various programs, land owners, citizens, and jurisdictions should keep in mind the option of mediation.  It could be an effective and cost saving avenue to resolve a land use dispute.