Sanns ADR Services

Is a Mediator Neutral When One Side Hires and Pays?

Vermont Gas needs to build a pipeline.  To accomplish this, they need to buy the right to build their pipeline across private property.  And lots of it.

What happens when a land owner doesn’t want to sell that right (or want to sell it at a price Vermont Gas is willing to pay)?  Normally, the gas company would use eminent domain to take the land and “fairly” compensate the land owner.  The eminent domain process can be lengthy if contested.  And most are.

So what does Vermont Gas propose?  They will hire a mediator to help negotiate with the landowner and keep the dispute out of court.

Vermont Gas Systems announced on Tuesday that it is employing a new tactic to secure land rights necessary to construct a natural gas pipeline from Colchester to Middlebury — the company will now provide independent mediators to help landowners negotiate with the company.

“We’re going to be offering neutral mediation for those landowners who we have not been able to reach agreements with,” company spokesman Steve Wark said.

Being a mediator, I am usually all for using mediation to resolve issues.  However, this process does not seem fair to the landowner.  The Gas Company is hiring and paying for the mediator.  How hard do you think the mediator will lean on the gas company knowing they could potentially be “hired” for dozens of other cases?  So is the mediator neutral?

Further, the article rightly explores what the landowners need and whether the mediator can provide that.  Landowners need legal advice, which is something a mediator should not be giving.  The mediator does not represent any party to a mediation nor should they.  The landowner needs help to understand what the value of the pipeline land is worth.  The mediator should not be telling them that, lest they become more of an arbitrator.

The implementation of this scheme contorts mediation into something different than neutrality or impartiality.  When one party is hiring and paying for the mediator and has a significant stake in the outcome, the mediator cannot be perceived as neutral.

Perhaps a better process would be to give the landowner a monetary allowance to hire an appraiser to value the land to be taken.  A mediator could then be brought in should any gaps remain.

 

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