The Lawyer as Process Advocate: Encouraging Collaborative Approaches to Controversial Development Decisions

Abstract

Significant land development decisions have the potential to tear at the civic fabric of a community and cause irreversible environmental, aesthetic and economic harm. Conversely, these decisions also have the potential to rebuild and repair civic capacity with minimal impact and delivering significant community benefits. While the underlying facts of a development proposal and the conditions of the community are certainly factors in these different outcomes, the other, often overlooked, factor separating these outcomes is the process used to conceive, deliberate and decide what is included in a development. Through this article, the author uses four case studies featuring collaborative decision-making to explore the impact that process has on how parties interact in significant development decisions and how attorneys can play an important role as advocates for sound processes. Among the many distinguishing features of those cases is the use of a process manager with a stake in the outcome instead of an outside neutral. After examining the structure of the required process and looking at the four collaborative case studies, the author examines and organizes almost four decades of dispute resolution practice and theory to provide a concise set of recommendations for lawyers seeking to create better processes. This guidance will also help protect against abuses of power when hiring a mediator is not practicable.

Keywords: Consensus Building, Mediate, Negotiated Agreement, Process Advocate, Collaborative Decision-Making, Collaboration, Controversional Development Decisions, Mediation, Land Development, Environmental, Community Benefits, Process Manager, Facilitation, Land Use, Land Use Permiting