At present, housing or perhaps more correctly the shortage of it is getting a lot of coverage in the UK and international media. One particular feature of the reporting of what many see as a global crisis is that it seems to centre not so much on addressing these difficulties head on as efforts being made to overcome the problems caused by government and public administration failures.  As is demonstrated in an article published in a 2018 edition of The Economist, the Californian city of San Francisco is a case in point. [1]

This article reports that San Francisco is the richest city in the US. The contrasts between rich and poor are as notable as those seen in Third World cities. There are graphic descriptions of streets in the down at heel Tenderloin district being littered with used needles and human excrement. This district is only a few blocks away from the very affluent Union Square, San Francisco’s downtown area which amongst other things, contains a number of very plush five-star hotels and the clientele that goes with them.

In recent years complaints about the excrement and needles have tripled but appear to serve only to place further demands on a local public administration and planning process that has been described as a bureaucratic quagmire. San Francisco rents are reported as being the highest in the US and the cost of an average house has risen in the past five years to $1.6 million (£1.2 million). The city’s strict zoning laws place limits on the highest density of new buildings, effectively only allowing new buildings that do not exceed three stories in height. These laws also give local residents who are often property owners the ability to severely delay new developments.

San Francisco is caught between the conflicting views and demands of the affluent who may simply wish to ensure their backyards are kept clean along with detritus-free sidewalks and public areas, those in favour of gentrification, developers who oppose both gentrification and the limitations imposed by the zoning laws, and those who are either homeless or live in unsatisfactory accommodation. Some housing related matters appear to be the responsibility of the City’s administration, others have to be dealt with by the Californian State Legislature and one suspects that there are elements of uncertainty and competing rivalry between these two administrations.

The Economist article makes much mention of the moribund nature of San Francisco’s city administration, delays in the state legislature and the influence wielded by some powerful groups. At the same time, there is no indication of any meaningful initiatives or even a comment on individual rights.

Why would arbitration and mediation make a significant difference? In responding to this my starting point is to emphasise that both these options carry with them independence and confidentiality. Equally, they are timely and cost-effective.

My second response is to recall the time-honoured phrase, “there is no greater fear than fear itself”. Disputes between competing groups are not so much about one’s own vested interests as fears or concerns about other people which, when one communicates with them, very often turn out to be misplaced. Arbitration and mediation will open channels of communication and ensure they remain open. Because people will communicate in a relatively informal setting, even very disparate individuals and interest groups will have the opportunity of listening to one another and they may come to realise that they have more in common than they first thought. In short, barriers are broken down and fears and suspicions can be considerably reduced. There would be nothing to stop San Francisco’s City Hall being represented in either arbitration or mediation, something that would give it an opportunity to make its case and could result in it being scrutinised by other interested parties and quite conceivably, being held to account.

A building/planning dispute could be determined by an arbitrator in a few weeks rather than months or years. The arbitrator who is an expert in such issues and will take a proactive role will not just listen to the evidence of competing “sides”. There will be some time limitations but by virtue of being proactive, she/he will be in a much better position to look at matters in great detail so as to ensure that individuals whose views do not necessarily accord with those of one of the above-mentioned interest groups, will be heard. In many respects, an arbitrator will not be not bound by the sometimes unnecessarily strict rules of evidence that are part and parcel of court proceedings. Arbitration proceedings are sufficiently flexible to cope with multi-party disputes including those who represent themselves, something that is not always true of court proceedings.

In arbitration, the litigation costs that are necessarily engendered by ongoing court delays will be kept within modest bounds and those involved in often complex, stressful cases will not have to endure months, possibly years of uncertainty, particularly in cases where there really is no scope for compromise. A case where a developer maintains that the City Council has misinterpreted a particular piece of planning law would be a case in point. The perhaps inevitable involvement of lawyers and experts will not come cheap but even allowing for this, the final bills will still be far less than those that the participating parties would expect to receive after protracted litigation.

Mediation is used to very good effect in complex environmental and social disputes where both individual concerns and competing interest groups have to be addressed and possibly reconciled rather than adjudicated on. Acting as facilitator, the mediator will ensure that all those concerned have a voice. The cost of instructing a mediator and arranging for the provision of suitable accommodation e.g. a large hall with some adjoining private rooms, will be much less than a protracted court battle in which some inexperienced parties might conceivably be representing themselves.

There are no strict rules of evidence and, particularly in cases where feelings are running high, the fact that the individual parties have ultimate control will go a long way to ensuring that any settlement is both meaningful and long-lasting. As with arbitration, outcomes will be determined within weeks rather than months or years.

Mediation, which has been demonstrated to work in immensely difficult contexts, also allows for creative solutions that a court which is essentially limited to making declarations, awarding compensation and granting injunctions cannot entertain. Developers could compromise over the provision of social housing. Voluntary agreement through mediation is much more likely to ensure that appropriate levels of funding are put into public projects that might for instance help address the drugs problem or improve the level of provision of appropriate public services.

Why not utilise mediation and arbitration rather than costly litigation and often complex political wrangling in multi-party housing related concerns in different parts of the world including the UK? Arbitration and mediation will not necessarily be panaceas for all of the problems and concerns identified above but they will help to address a great many of them.

[1] Running San Francisco. Reach for the sky. The Economist, 2-8 June 2018