How to settle farming disputes through mediation

1. How to prepare for mediation

Effective preparation means the difference between reaching a resolution or not. Mediation is not a mini trial – it is a negotiation. There is no need to take all of the papers and evidence needed for trial. In fact, mediation often takes place before all the evidence is available.

Mediators will read everything they are sent in preparation – time costs, so be selective. Remember you are not there to persuade the mediator, you are there to persuade your opponent.

See also: Legal costs for farming disputes set to mount 

Make a list of your best points as well as those of your opponent and the arguments you have to defend their points. Then prepare the key documents that support those points – that is all you need in terms of paper.

The mediator will normally invite the parties to prepare a position statement in advance of the mediation. One page of A4 will do. How do you feel? Why do you want to settle? What do you want and why?

It can be confidential, for the mediator’s eyes only, or open for all to see. Everything is confidential to the mediation process and cannot be used outside of it.

Remember, in a mediation you can resolve anything, not just the issue that brought you there and you may find another matter is key to unlocking a settlement. Think laterally and put yourself in your opponent’s shoes. What do they really want and, more importantly, why do they want it?

Getting pre-mediation advice

With farming disputes, there is normally land and money involved. It is critically important to have valuation advice, preferably in writing, before the mediation. Don’t rely on what you think the land is worth or what the farm down the road sold for.

Another reason some mediations fail is lack of tax advice. Consider what sort of offers might be on the table and what the tax implications of those would be. Get comprehensive advice from your accountant and perhaps have them on standby for the day so that you can call if anything unexpected arises.

The right adviser on the day

The right solicitor/adviser can be the difference between settlement or not. You need someone whose judgement you trust, someone who will not be afraid to tell you to take the deal – even if it is not quite what you want – and someone who has an interest in you bringing this dispute to an end.

Who should attend?

The person with authority to make the final decision as to whether to accept an offer must attend the mediation, although anyone else can also attend. You may want a trusted friend or family member, but don’t take too many – and choose those with a calm disposition and a cool head. Remember it can be a long day and a tiring one.

All those in attendance will be bound by the mediation agreement and will be asked to sign it.

You may want your lawyer with you or on the end of a phone – it can be helpful, but is not necessary. There is no point taking him or her if you are not going to listen to their advice. However, if you do reach an agreement that will need to be drawn up, and it is usually drafted by the lawyers.

The mediator

The mediator is chosen in advance of the day. Choose carefully – do you really need another lawyer if you already have a solicitor and a barrister on board? If you have issues of land and business valuation, potential development opportunities, or practical farming issues to debate, you might be better with a land agent who will focus on the practical issues.

Remember the mediator is the facilitator, not a judge. He or she is not there to decide the law or the likely outcome of your case and will not give a view on whether you will win or not.

2. What to expect on the day

The mediation day normally starts with an opening session with everyone around the table. The mediator explains what will happen during the day and sets out some rules, such as only one person being allowed to speak at once and everyone remaining polite.

The mediator will invite the participants to speak in the opening session. You can ask your lawyer to speak or speak yourself. Plan what you are going to say and speak directly to your opponent. This is not the time for adversarial, aggressive speeches or a detailed examination of evidence – be short, to the point and conciliatory.

The participants then split into separate rooms and the mediator will take it in turns to go between them, fact-finding and establishing common ground between the parties and working out where the real differences lie.

Tactics

The mediator will repeat nothing you say to them to your opponent unless you expressly authorise it, so you can and should be quite open in what you say.

Use the first session to tell the mediator about your best points to undermine your opponent’s case early. Be credible and do not exaggerate your claim or your strengths. You need to build trust with the mediator and withholding information may cause the other side to suspect weakness in your case.

The mediator needs time to explore the issues and risks of litigation with the parties, but you should try to get into the bargaining zone as soon as possible. Someone has to make the first move – this is not a sign of weakness. A reasonable offer sends a message to the other side that you are seriously interested in settling.

Ask the mediator to tell the other side that you are making a significant concession, expect them to do the same and explain your rationale.

Tie your offer to a specific issue where you accept there is some risk. Usually a significant move by one side will cause the other side to reciprocate, paving the way for settlement.

Be principled in your negotiating. If the other party demonstrates something that affects the value of the case, take that into account and adjust your position. It will make it harder for your opponent to attack your figures if they are principled and not just plucked out of the air.

Avoid talk about “the bottom line”. Parties who start with a bottom-line approach often have unrealistic expectations and end up disappointed. To make progress toward resolution, set those expectations aside.

Beware of these tactics:

The outrageous, unrealistic initial demand – ignore it, follow your own strategy and do not let that set the scene.

“My hands are tied” – usually after hours, a typical insurer approach claiming the offer is at the limit of their authority. Test the waters by making another demand or threaten to walk away or reconvene on another day.

Do not bid against yourself – insist on a counter demand/offer before making your next move.

If the parties are worlds apart, or one party is not engaging in the process, don’t be afraid to end the mediation and walk away.

Sometimes, parties are close to a deal, but it is the end of the day, and everyone is tired. It can make sense to continue negotiation with or without the mediator for a week or so, giving the parties time to consider their positions and see if a final deal can be reached.

Reaching a decision

Once settlement has been reached it will be written down in a binding agreement, often called Heads of Terms. Other work may be required, such as transferring property between the parties or drawing up tenancy agreements, contracts or other documents. Those will not be drafted on the day, but the key terms of those agreements must be written down and signed by the parties.

After the day of mediation

The mediator will destroy all papers they have in relation to the case. The lawyers will finalise any paperwork for signature and will tell the court that settlement has been reached. The parties will be relieved!