Why mediation can be a good way to resolve farming disputes
© Adobe Stock Succession, partnership issues, boundary arguments, how to treat inherited land – these and many other matters are familiar and fertile ground for dispute.
When it’s personal and involves the business and its assets, disagreements often become emotional and positions entrenched.
When it goes legal, the costs rise and the courts dictate the outcome.
See also: Inheritance disputes: how to avoid broken promise claims
Mediation is another route to resolving disputes for far lower cost, time and stress.
Mediation is a form of alternative dispute resolution (ADR), aiming to encourage the parties to understand each other’s views and objectives, which can become difficult when communication is perhaps poor in the first place and often has already broken down.
Led by an independent qualified mediator, the aim is to bring the matter to an agreed conclusion within a day.
Tom McLaughlin, a senior director in Strutt & Parker, is an accredited mediator specialising in property disputes.
Mediation gives the parties control over the eventual outcome, which is not the case when a matter goes to court, points out Tom.
This work usually comes his way through lawyers for the parties involved. Some lawyers are also qualified mediators.
When a case is due to come to court, the court will usually ask whether any method of ADR has been tried or may even order that it be tried.
“Mediation is about finding practical solutions and the mediator’s role is to help people along that path.
“It’s not to impose a solution in the same way that a court or an arbitrator would do, it’s really just to facilitate some kind of workable solution,” says Tom, who conducts about half a dozen farming mediations a year.
Mediation – the process
- Mediator appointed by agreement, appointment letter signed
- Cost shared equally between the parties – payment up front may be required
- Mediation date agreed, held at a neutral location
- Position statements submitted to mediator – ideally a week or two before mediation day. This is a briefing document from each party setting out the positions, helping the mediator understand what the background is and what the parties think they want to achieve.
- Mediation day – parties state their cases face to face, with ground rules forbidding interruption and negative reactions
- Parties move to individual private rooms
- Mediator shuttles between them to draw out an agreement
- Once an agreement has been reached, a mediation settlement agreement is drawn up which is a legally binding document
Equal say, equal pay
All parties have equal say in who is appointed to mediate their dispute.
Payment of the mediator’s fees is shared, while each party is usually responsible for paying their own legal fees.
The cost of mediation, shared equally between the parties, varies widely up to £10,000, says Tom, and depends on the nature of the dispute and the mediator chosen.
His farming cases tend to cost in the region of £5,000-£6,000 for a full day, including a day of preparation time.
Legal representation will also often be involved on the day of the mediation.
This can sometimes be unequal, says Tom, with several lawyers and barristers turning up for one side and little, if any, legal representation on the other.
That can be intimidating for the party with less representation, he says, but the mediation process, which involves the parties separating and the mediator acting as an intermediary, goes some way to levelling the playing field.
“Even then, it can be difficult for the mediator to cut through barristers. I’ve conducted mediations where barristers have treated the day almost as a sort of rehearsal for putting their arguments to the court.
Done in a day
“Mediation success is built on the fact you all sit down and go through it in a day. I’ve never had one that went over a day, even if it means working late into the night.
“Otherwise, you lose momentum if you break and you come back the next day,” Tom says.
“Speaking to each party separately before the day is important, to understand what their issues are and hear it from them first hand, rather than just having email correspondence with lawyers because that’s too impersonal and it’s third hand.
“It’s all about the parties finding their own agreement that they are happy to live with.
“That’s why it’s so important for the mediator to try to get under the skin of the situation and for the parties to do some preparation, in terms of thinking about realistic solutions and whether they are being reasonable.
“You’re getting people to think ahead, so that hopefully they come to the day with an idea of what they want to achieve out of it, and what they’re prepared to compromise on.”
What happens on the day
The day begins with the parties meeting face to face, in turn stating their positions and airing any grievances with the mediator in the room.
“They are given a time limit and some ground rules, which includes that they cannot interrupt another party, or scoff, or laugh.
“They have to be respectful because their turn will come after the other has spoken,” says Tom.
“Sometimes people find that’s really helpful because quite often, particularly if it’s a dispute that’s been done so far through lawyers, the parties haven’t had a chance to hear from the other side what it means to them personally. And that’s incredibly powerful.”
Following this, the mediator may ask a few questions to make sure they have understood everything correctly.
“Sometimes people come to mediation and find it difficult to articulate their thoughts and feelings clearly. So, again, it’s a mediator’s job to try and interpret that for everybody’s sake.”
Shuttle process
The next stage sees the parties go to separate rooms and the mediator spending time with each in private to get their impression of what they have heard and whether it changes anything.
“Then you begin the shuttle process, going between the parties, trying to flush out all the issues and begin the process of trying to work out with them what a workable solution might look like.
“The purest form of mediation is a facilitative approach, in which the mediator shuttles between the parties to help them reach an agreement.
“Having seen many farming family situations and solutions, a rural surveyor can bring their experience to bear and that’s really powerful.
“You can test people’s reality, for example on valuations. There’s an awful lot of reality testing as part of that early process and throughout the day.”
Often, expectations and assumptions can go unsaid and this may be the first time some family members have heard what others really want.
“Sometimes there is a communication imbalance, perhaps between siblings, where one is a stronger character than the other, who doesn’t feel they can speak their mind.
“When they’re in their individual rooms and the mediator is with them, they can absolutely speak their mind and can use the mediator to get a message across to the other party, whether that might be an older brother or a parent, that they wouldn’t feel comfortable saying themselves.”
A mediator does not hand down a judgement but guides people to a negotiated settlement. This means the parties remain responsible for the final decision.
“Sometimes they struggle to work out what a practical solution might be and so you then you can find yourself moving into a more of an evaluative approach and making suggestions for an outcome, but it is not the mediator’s role to impose anything.”
Mediation content confidential
The mediation process is confidential, so if a dispute does end up in court, nothing said during mediation can be used in subsequent litigation.
Wider possibilities, lower cost, swifter process
Mediation offers a far wider range of possibilities for the outcome, as well as vastly lower costs than going to trial on a matter, says lawyer Jon Clifford.
In addition, with the court system under massive strain, it can take years to get to a trial date.
“At almost all stages of the legal process the parties will be encouraged by the court to seek a resolution through alternative dispute resolution,” says Jon, a partner in law firm Knights.
“However, there is a danger that mediation can be seen as a tick-box exercise, or that a party refuses to engage with it properly.”
In limited circumstances, failure to engage may be judged reasonable, but if not, this can result in an adverse costs order, where the “winner” may be ordered to pay some or all of the other side’s cost, or may recover significantly less of their own costs from the other side.
Finding the right mediator is important, as is getting the timing right, says Jon.
“Too soon and a party only has a one-sided perspective on the issue, too late and the parties are entrenched; or have spent so much in legal costs that they cannot afford to settle.”
Rsabi mediation contribution
To encourage mediation of farming disputes, the Royal Scottish Agricultural Benevolent Institution (Rsabi) offers contributions of up to £500 to help start the process.
The charity has funded training for 12 people with practical agricultural knowledge and experience to become mediators.
“Sadly we see far too many situations around the country where farming families have reached an impasse due to relationships breaking down, and the result can be a miserable existence for all concerned,” says Carol McLaren, Rsabi chief executive.
“Success depends on both parties being willing to take part in the process on a voluntary basis and having a shared wish to find a way to improve the situation.
It is never, ever too late to try to improve a situation.”
To find out more, contact Rsabi’s free confidential support service, 24 hours a day on 0808 1234 555. Or email helpline@rsabi.org.uk.
Find mediation information on the Rsabi website.
