The 'Abundance Agenda' & Alternative Dispute Resolution

Have you heard of the  “abundance agenda”  - that California must streamline housing and infrastructure permitting to build  the affordable, green economy  that we imagine? Our housing demands require an estimated  180,000 new units a year. To  meet the state’s decarbonization and public welfare goals,  investments are needed in renewable energy, grid modernization, water infrastructure,  health care, and transportation mobility. In 2028, as Southern  California hosts the Olympics  while recovering from the impacts of wildfires, these projects will be more critical than ever.  The “abundance agenda” urges  us to remove bottlenecks that  limit building the things California needs. 

As we focus on how to quickly resolve the state’s environmental,  land use and related permitting  disputes, alternative dispute resolution (ADR) is an indispensable tool in the state’s toolbox. 

ADR, particularly mediation, is  common in all types of real estate, government law and environ mental cases. In construction defect, eminent domain, neighbor  conflicts, tort claims, labor, property cleanup and water rights  matters, ADR saves parties millions in litigation fees and costs.  Expanding its use in land use and infrastructure permitting disputes can lead to significant benefits  for parties, attorneys, and others. 

The iceberg: Mediators look  below the surface 

Environmental and land use disputes are often about more than  bargaining over money. These  cases may involve mitigation conditions, including construction design, air and water quality,  traffic, community benefits agreements, labor conditions or open  space protection. However, many of the issues driving these cases  lie beneath the surface and aren’t readily apparent from the pleadings. Mediators often analogize litigated cases to an iceberg.  We can all see the iceberg. It  is the lawsuit and the parties’  litigation positions or money demands. But what is beneath the  surface, or “below the iceberg” -  the parties’ motivations and  interests? Mediation allows for both exploration of these sub surface issues and creative brain storming of the non-monetary  terms. 

In cases where mitigation measures or injunctive terms are at issue, the mediator should signal to the lawyers - expect open-ended, clarifying questions. Why? How? Can we? Why not? What if? This  is how mediators identify and resolve what is “below the iceberg.”  The answers can help justify the parties’ demands. An example is a  recent mediation of a multi-party CEQA writ of mandamus lawsuit  challenging land use approvals for  a large warehouse development project. The path to settlement  was not about the sufficiency of  California Environmental Quality Act (CEQA) thresholds of significance or the rigor of the cumulative impacts analysis in the  environmental impact report (EIR)  - but instead, community benefits and design changes to lessen project impacts. 

Mediators present a choice  to the parties 

The parties often enter into mediation focused on a single out come. The goal of mediation  should be to present the parties with perspective and a choice.  The mediation session must not end before the mediator explains to the lawyers and clients what it will take to settle the case.  What are the best terms, after  hours or days of negotiating,  that we can get from the other  side? Then we can compare  that with “BATNA,” the best alternative to a negotiated agreement. We also discuss “WATNA,” the worst alternative outcome  (i.e., what the party will lose) if  the case is not resolved. The  parties then have the information to make an informed choice: Settlement or more litigation  and trial. 

Another example from a recent  CEQA mediation is instructive.  In that case, neighboring home owners sued over approvals for  a large senior living planned  development. There was the  “iceberg” - litigation positions on EIR recirculation and the con tent of the greenhouse gas and  construction noise analysis. 

In response, the mediator described to the petitioner neighbors recent caselaw on the remedy provisions of CEQA and explained they may not be able to “kill” the project or undo land  use approvals with broad support from the local elected officials. The mediator emphasized  that there will inevitably be resolution and asked that the  mediation session focus on mitigation measures that can best  meet their interests. 

Their perspective refocused;  the neighbors expressed that  they had issues with traffic and public safety, along with  attorneys’ fees. As it turned out, the developer real party in interest also cared about security  and controlling property access. These issues became currency  for the negotiation. In the end,  the parties reached a creative settlement where the home owners’ association licensed unused land to the developer for  a security kiosk at the property  entrance. In return, the association received money for community benefits and legal fees,  the benefits of extra neighborhood security and wayfinding signs for access. The developer received land for a security kiosk at the front gate that it wanted  and it did not have to reopen its land use approvals. The respondent public agency successfully closed the matter and removed the case from its litigation docket. In the end, the parties chose settlement be cause the mediation uncovered and focused on common interests “below the iceberg.” A residential housing project moved  forward, community interests were protected and substantial time  and litigation costs were saved. 

Mediation mechanics 

Environmental and land use cases  also, thankfully, already have some built-in mediation mechanics that can help lead to resolution. 

An existing but underutilized  tool is the CEQA early settlement meeting, outlined in Public Resources Code section 21167.8, which requires the parties to  meet and attempt to resolve  the litigation within 45 days of  the lawsuit being served. However, the early meeting is often  pro forma, too informal, abbreviated, and does not meaningfully  assist in resolving the dispute.  Many practitioners agree that the  early meeting can be taken more seriously. One path is to exchange terms sheets and conduct an in-person session including the litigants and a neutral  mediator who “speaks CEQA.” 

CEQA’s early settlement meeting is not the only specialized  tool to get these cases resolved - the Planning and Zoning Law  in Government Code section  66030 authorizes mediation in  10 specified land use matters  including general plan decisions, zoning, and a catch-all for “the  approval or denial by a public  agency of any development project.” Yet today, this decades old Government Code mediation provision is rarely invoked,  largely because it is permissive. Practitioners should dust it off in their pending cases. 

As for the mediation process -  and this is general advice for all litigated cases - the right medi ator can make all the difference. Look for mediators who separ ately call or Zoom with counsel  before the mediation to distill  the issues. This adds value to  the ensuing “shuttle diplomacy”  between the parties, all protected by the expansive, mediation specific confidentiality provisions of Evidence Code section 1115  et seq. When the mediator works as a team with lawyers and clients, up to and including on what to  say to the other side and when to say it, all parties become invested in the settlement process. 

Not every case is possible to  settle during the mediation session. Sometimes parties are not yet ready to settle, or more information is required, especially if creative solutions emerge  during the mediation session.  In these situations, though, the  mediator can still ensure that the parties agree to next steps with  a timeline - extending “shuttle  diplomacy” for days, weeks, or  however long it takes by text,  phone or Zoom to keep focus on  the parties’ interests and what  is “below the iceberg.” 

Conclusion 

ADR and mediation are important tools to resolve our state’s  thorny environmental and land use permitting disputes - and to advance an “abundance agenda” for a greener, more affordable  California. The right mediator with the right strategies can help.