Suzanne Lowe of Talk Mediation, a solicitor and mediator, highlights the benefits of resolving disputes using mediation.
What do you do if you find yourself in a dispute over who owns what land or a right of way? Who is right and who is wrong?
You could seek legal advice. As a litigation solicitor, I will charge you £160 per hour, to advise you of just how difficult it is to resolve such disputes. The deeds are very often unclear. You may feel it’s the principal of the matter, and ask me to send a letter declaring your “rights” and hope that this will work. What if it doesn’t? I’ll advise that if you get as far as trial it could cost you in the region of £10,000; it’s risky and you may not get all your costs back even if you win. If you lose you will also be paying the other party’s costs. I won’t be offering to deal with it on a no win, no fee basis.
So what now? Start court proceedings? What if you lose? Will you have to give up the land or right of way? How will this affect the profitability of you business? How much time will you spend away from your business trying to sort this out? How much anxiety will this cause you and your family if you go to court? What if the courts can’t provide you with a legal remedy?
How are you sleeping by this stage? Who is running your farm? How bad is the feeling between you and the neighbour/neighbouring farmer? How’s your social life in your community?
There is a better way………..Don’t litigate – mediate!
Mediation is a form of alternative dispute resolution. The parties nominate an independent mediator who helps the parties look at the bigger picture. They will help the parties to move from their entrenched positions and explore different ways of reaching a compromise that they can live with. They don’t take sides or impose their view. The parties stay in absolute control. Instead of a Judge deciding for them the parties decide for themselves. You can use mediation before court proceedings are started.
In a recent mediation, Farmer A claimed he had a right of way obstructed by Farmer B, which meant that he couldn’t use two of his fields. He claimed he had lost £10,000 profit over two years. B maintained that A had no right of way. A started court proceedings. The parties agreed that the proceedings should be put on hold to try mediation.
At the mediation, B told the mediator in his private meetings that he didn’t really have a problem with A using the strip of land, but he had become irritated that A assumed that he could use it as of right. The strip wasn’t actually much use to him. He was worried that matters had got this far. He didn’t have any capital to pay Farmer A if he lost. He had already spent £3000 in legal fees. His solicitor had advised that the legal costs could be as high as £8,000, to go to trial.
In private meetings with A, he told the mediator that he wasn’t bothered if he didn’t get all his compensation, but he would like something. He said it was more important to establish that he did have a right of way because he needed access to his two fields. There was another access way but it was restricted and he couldn’t get the larger farm machinery on to the fields using the other route. He had tried to discuss the matter with Farmer B, but he refused to talk directly to him and only through his solicitor.
The parties settled with B accepting A’s offer to buy the strip of land for £1000. Both parties knew the strip was worth more, but B was very anxious to avoid paying anything to A with regard to his claim. A agreed to drop his claim if he could buy the strip of land. It was more important to him in the long term to have established access.
With the help of the mediator parties were able to reach their own solution. Neither had to continue to worry that a Judge would find one of them right and one wrong. A Judge would not have had the power to come up with this final solution.
Mediation is cheaper, quicker and more flexible. The process is confidential, giving the parties the freedom to explore their real needs and interests without fear that the information will be used against them. Courts actively encourage it. Litigation is to be seen as a last resort. Disputes over wills, in divorce, with customers, suppliers or employees can be resolved much more quickly and cheaply using mediation.
Talk Mediation is accredited as a mediation provider by the Civil Mediation council and a member of the National Mediation Help Line. Talk Mediation has a panel of accredited, experienced mediators across the U.K. They have different backgrounds and disciplines including lawyers, accountants, surveyors and business people. To find out how Talk Mediation could help you contact us.