The Background
Recently, I was a rail project director involved in the development of a 350km line for a mine and port outside Hong Kong. My skills as a mediator became essential in the resolution of complex commercial disputes and differences arising during the development. Lessons learnt from the experience can be applied across Hong Kong, in circumstances when the government and the public need to resolve key issues through mediation and negotiation.
The Case
The route corridor varied up to 100 metres in width, having an impact on private farmland and local burial sites. At times, the areas of imposition required changing the railway’s design to accommodate the interests of the local people.
A key aim for all the negotiations was to retain environmental aesthetics by protecting animals, plants, birds, and the water supply to affected parties.
Landowners sought an agreement to allow the rail to pass through their properties, which required consideration and negotiation. The locals, many of whom were also landowners, required an additional effort to address issues that were raised during the rail development.
These complex issues primarily required a facilitative process. This allowed the participants to make decisions about future actions and outcomes. Often my approach would involve a blended process that involved an advisory component or expert information and advice. These processes are sometimes referred to as “evaluative mediation” or “conciliation”.
The Process
The task involved a number of separate processes that were similar in nature but varied in complexity. Clear rules of engagement had to be agreed upon and it was important to clarify each party’s role, terms of confidentiality, spokespeople, and the role of lawyers and consultants.
A small neutral team was established to handle aspects of the negotiations, including liaising between the developer, landowners and communities, the heritage and traditions of aboriginal groups involved, developing and maintaining education and employment programmes, and compliance with environmental policies.
Private landowners were concerned about land use, access to their property, interruption of agricultural plans, water conservation, protection of livestock and natural beauty, minimisation of dust, and air and noise pollution. They were also concerned about the pre- and post-construction phase.
The landowners did not prevent the progress of the development but sought compensation for the use of their land. Settlements were achieved in different ways, including negotiating hundreds of kilometres of bush with tribal elders, ranchers and corporate representatives – often in meetings on dry river beds or under ancient gum trees. Agreements and settlements were sealed by handshakes – the paperwork followed later.
Landowners were allowed to participate in the construction and operation phase. This included the supply of raw materials and equipment, and the building of roads, cattle grids and gates. Environmental resources were provided to ensure local fauna was protected.
Engaging the different indigenous communities was essential to ensuring the project’s success. After four years of lengthy and complex negotiations, agreements were finally reached on issues such as the relocation of burial sites, land use, water supplies and participation in the development as subcontractors.
The Lessons
It is important to have a clear focus on desired outcomes while maintaining complete impartiality and fairness. It’s also crucial to allow flexibility, despite the structured process. Mutual respect, partnerships and collaboration between government policy makers, constituencies, and various parties, is crucial to success.
In Hong Kong, these principles could be used when resolving issues related to farmland or clan dwellings in the New Territories, or disputes over infrastructure projects for airport, rail and port developments, such as highways, bridges and drainage, among other things.
Faced with these challenges, the Hong Kong government needs to mediate and negotiate with communities and policy makers to develop and manage indigenous areas, infrastructure and urban areas with patience, respect, compassion and intelligence. Mediation and negotiation plays a key role in balancing the government’s policies with business needs and community expectations.
This article appeared in the Classified Post print edition as Patience, time key to complex negotiations.
