Residential property
10 Feb 2021 News

Mediation – what is it and how does it work?

Mediation, once a little known or understood concept, now becoming recognised as an effective tool for business and landowners alike, able to resolve everything from complex partnership disputes right down to dealing with essential property management issues such as rent reviews and waygo agreements. Within agriculture, the Tenant Farming Commissioner has already acknowledged the benefits of mediation, launching a partially subsidised mediation programme for those in the industry at the end of January. Indeed its growing importance is also reflected in a Bill to go before Holyrood, that if passed will make mediation or at least the consideration of using it, an initial step in many disputes that come before Scottish Courts. But is it really that straightforward to mediate?

Can I mediate about anything and with anyone?

Provided there are no provisions to the contrary contained in any agreement between parties, then there is pretty much nothing off the table in terms of what mediation can be used for. Common uses include boundary and land disputes, work place disagreements and tenancy problems.

It’s worth noting there is no specific prohibition on a dispute under agricultural holdings legislation being mediated and doing so does not affect your ability to move matters to the Land Court should there be no resolution reached.  

However, while the subject of mediation may be easily identifiable, getting those you disagree with to the table may not always be as straightforward. Mediation is a voluntary process but ultimately one which requires both parties to engage and work to find a resolution.

What happens at mediation?

A mediation can occur in person or online, with the mediator usually mutually chosen by the parties to the dispute. All parties can bring along advisers and throughout the mediation there will be chance to use breakout rooms to speak privately with them. This is particularly important where negotiated financial settlement could have large tax consequences for either party. 

Mediations are not recorded and everything discussed is confidential. Throughout the mediator will ensure all parties are heard, asking a variety of questions to stimulate the process of finding common ground and working towards a solution. 

Where agreement whether in whole or part is reached, a settlement agreement will be signed. This agreement will often create a legally enforceable contract for parties to follow through on post mediation.

Why should I consider mediation?

Time and cost
Films may give the impression that you can use the phrase “I’ll see you in court” and the next day you will find yourself in court with a judgment there and then, sadly that’s  little more than Hollywood fiction. In reality from initial dispute to court judgment, the process can be months or years in the making with the cost implications to match. Mediation can offer an often cheaper and time efficient alternative.

Driving seat
Whereas in court the Sheriff or judge is in control, mediation puts you in the driving seat. You can choose what you want to discuss, where you want the discussion to go and ultimately you can suggest a variety of solutions to the problem, a luxury that a court does not have open to them.

Relationships
Mediation is not meant to be confrontational but rather about bringing the parties together to an agreeable solution. This approach can be especially important from a business perspective for example, in agricultural tenancies where parties need to continue to work and often live alongside each other for some time to come.

Little to lose
Mediation does not remove the right to go to court, indeed in some cases despite everyone’s best endeavours the matter will simply not be resolvable between parties. However, in going through the process, much can be learned about either parties’ position and it may be possible to agree on a greater number of points thus reducing the extent of what goes to court.  

Time and money are precious in the agricultural sector so it makes sense that mediation is the first port of call in any disagreement.  However, perhaps it’s the qualities at the heart of the sector; community, shared purpose and the desire to do right by one another, which ultimately make mediation a good fit. So as we move forward in 2021 and all the challenges that may come, why not give just give mediation a chance. As the saying goes, nothing ventured, nothing gained.

We offer NFU Scotland members up to 20 minutes free legal advice on a wide range of legal issues relating to farmers. You can e-mail your enquiry to nfus@gillespiemacandrew.co.uk or call us on 0131 271 8585. 

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