ABCD Blog is happy to welcome back one of the Popes of legal and BIM in France and around the world, Maître David Richard. He comes to discuss with us a very exciting subject, namely Mediation in Urban Development (MDU) that we did not know yet. David Richard thus opens up horizons for us on the natural and sizeable convergence between this topical subject and the digital world.
David Richard hello, we are delighted to welcome you on ABCD Blog. For today, we have decided to discuss with you the topic Mediation in Urban Development (MUD), but before delving into that, can you introduce yourself in a few words?
Hello Emmanuel, it’s a shared pleasure to be here. I diligently follow the
publications of ABCD Blog, and it is always a real pleasure to have the opportunity to move to the other side of the force (from reader to interviewee). 🙂
Regarding my professional activity, I am a lawyer of the Paris Bar and I operate in fields of construction, real estate and also in urban planning, albeit in a more limited way. Within this sector, I have developed for some time now an expertise around BIM and more generally the phenomenon of the digitalization of the sectors on which I intervene. Finally, I also mediate to the RICS’s principles in these sectors.
With MUD being a new concept, my initial instinct is to ask you to define this concept in order to understand its broad concept.
In principle, it is quite simple. It is a question of applying the mediation process to development, construction and renovation projects that take place in areas which are already urbanized, without excluding projects of a similar nature in rural areas.
Regarding the concept of mediation, it is defined as a structured process in which two or more disputing parties voluntarily attempt, by themselves, to reach an agreement on the resolution of their dispute with the help of a mediator (Article 3 of Directive 2008/52/EC). Mediation is one of the methods of amicable resolution of disputes, as provided for in the Code of Civil Procedure.
Isn’t it a little strange to talk about a dispute upstream, for example, of the production of a building that in principle represents an added value, including social ones?
You’re right and it’s important to remember that. An urban development project, even if its nature is conducive to improvements, only exists by its primary function: the contribution of a service, which allows people to occupy a dedicated space to live, work, study, entertain, move, etc.
However, if the act of building is overall positive in the end, it may invoke tensions, or at the very least a need for adaptation since an urban development project translates into changes. It is therefore on this basis of appeasement or accompaniment that the mediation process will be useful.
This process is structured and very flexible and can be applied to a real estate transaction. Moreover, many urban development-related experiences have already used, or currently use, mediation in France and abroad. Put simply, past experiences apply more to projects of a general scope such as the definition of building rules throughout a territory or a specific project (eg : urban development project).
Essentially, the MUD consists in generalizing the use of mediation for any type of project, even modest, whenever a need exists.
Similarly, the mediation mechanism applied to urban development differs somewhat from that used for a conventional dispute, in particular because of the presence of many parties with numerous varying profiles, interests and approaches. Nevertheless, there is a lot of work and experience in this area, notably from abroad. I would add that mediation or similar formulas of approach exist and are developing in the context of construction work.
Nothing therefore obstructs a mediation centred on urban development on the scale of a project.
Developing, building or renovating are already very supervised and complex operations. Aren’t you afraid that the MUD will further contribute to making projects more complex and therefore burdening?
You are right, producing buildings, infrastructure or development areas are meticulously marked and cumbersome operations to implement. A project owner, public or private, must imperatively go through the box of the planning permission with all that this implies.
Even in the presence of so-called modest projects, actors must take on heavy tasks and steps, some of them highly technical and all this over relatively long periods. The result is that this certainly produces some complexity. Nevertheless, due to profound changes, this complexity is increasing both in terms of the buildings or others that are produced and the way in which they are produced.
Thus, today, a construction project in an urbanized environment must deal with what is termed the ‘neighbours’, i.e., the residents or 1/3, who play a significant role. Many of them challenge planning permissions, so much so that in some cities this becomes the norm. The result is an increase in tensions, and as a consequence in deadlines and costs.
This is why if in a certain way the MUD reveals an existing complexity by formalizing it, this reveals that is above all a tool contributing to deal with such complexities in an organized way.
You talk about mutations justifying MUD, what exactly are these phenomena? And how big are they?
That’s the heart of the matter. We are faced with many, and you know this perfectly well at ABCD Blog (smiles). Going through them all seems irrelevant here.
However, if we stick to the principle of the act of building, that is to say the decision to construct, for example, a building, placing itself over a long period of time which would begin in the 19th century, this decision or prerogative was essentially the privilege of the owner / client. Then, the public authorities became decision-making actors in this act, by fact of the regulatory urbanism that developed after the Second World War. These two actors should not be put on the same level, but in a way they both contribute to model the project by their respective decision.
This duo will remain identical even if they evolve. At the same time, this approach, of an individual initiative respectful of a collective framework, is no longer enough, or let’s say difficult to suffice and will fail to do so less and less. The circle extends in a variable way and it is necessary to establish a framework in which this new configuration can take place, to avoid situations of deadlock and open conflicts.
This is a fundamental trend that will grow. We keep to the requirement to develop the city within the city, which is difficult to question seriously, but it is obvious that if it is stated without difficulty, its application profoundly modifies the dynamics of a project. By definition, it will develop in a constrained environment, and this environment will have an impact on the project, outside the situation of the premises, etc. People with an interest in this project will by definition be more numerous, and new interactions will take place.
This strong trend is already expressed in some cities, but more generally the phenomenon is less mature and will develop over time. The MDU, which is only a consequence of this, will therefore also take time before stabilizing.
In a recent article, you indicated that digital tools used by AEC professionals can be applied in the context of a MUD. Can you tell us more?
Indeed, I mentioned this aspect by quoting in support of my remarks two articles from the ABCD Blog (Laughs).
The first very eloquent article corresponds to the testimony of a mayor who, in order to help his fellow citizens to understand the emergence of a new district, had presented the project using a BIM or CIM approach. The second was on a slightly different topic. It was about the development of an application that had enabled a form of crowdfunding for a museum. Thanks to technology, investors had the ability to virtually appropriate parts of the building, which had facilitating virtues.
Can you develop your point beyond these examples?
Of course, with pleasure! In fact, as I have indicated, the changes at work regarding the act of building involves more players, players with firstly, a low level of technical expertise compared to professionals working on a project (who conversely tend to specialize), and secondly varied profiles.
In this manner, when faced with a project, even by limiting oneself to the physical apprehension of a space which is going to be built or fitted out, there remains a real difficulty in terms of having a common vision. Professionals misunderstand this difficulty, but it is nevertheless present. Projecting and imagining a construction or development based on a plan, or even a physical model, is not easy.
However, without a common vision, it is impossible to establish a dialogue. Digital models therefore represent powerful tools for sharing, with no real equivalent, including with uninformed audiences. The instance of the debate on the reconstruction of Notre-Dame attests to this strength. Apart from the incredible contribution of the BIM process to the project as such, the models have been an incredible tool to allow an exchange around commonly understood projects. I think that without BIM models, the debate would undoubtedly have been more complicated, less attractive in particular. However, I should point out that I am not commenting on the terms of this debate or its outcome.
Apart from the apprehension of the project, we could raise the question of its data, or the possibility of having digital exchange platforms, which are necessary for the organising of exchanges thereby facilitating, supporting, explaining, and convincing. The example of museum financing mentioned above also seems interesting to me, in particular for what is called participatory urban planning. This concept differs from the MUD while combining perfectly with it.
In this perspective, can we also establish links with the digitization of urban planning authorizations which has been in place since the beginning of the year in France?
Absolutely. The dematerialization of urban planning authorizations facilitates the procedures to obtain them, just as it makes it easier for the competent services to examine these authorizations.
These services most often come from local authorities which, from a legal point of view, have the duty to deliver or refuse them. In practice, their role goes much further than a normative dimension. Some complain about it, considering that they exceed their prerogatives for the benefit of one or the other, which happens. At the same time, it must be recognized that a purely regulatory approach would border on absurdity with the result of many frustrations.
To conclude, can you tell us what will be the next step in terms of MUD?
It is difficult to answer this question. In the short term, the MUD needs to be used for various and varied projects, beyond this, it can be used evaluations and reflections regarding its contribution, all in a repeated way to ensure its solid development in the future. And, let’s face it, this development takes place over a long period of time.
I also hope that this journey will lead us to come and discuss the MUD again – or even several times – with you!
David, a big thank you for this very instructive exchange. Looking forward to discussing again together!