Professional Documents
Culture Documents
James Naylor
Content
1. What is mediation and how does it
work?
2. What is the Courts approach to
mediation?
3. How
does
mediation
work
specifically in relation to land law?
What is mediation
and how does it work?
Mediation is a flexible, voluntary and
confidential form of alternative
dispute resolution (ADR), in which a
neutral third party assists parties to
work
towards
a
negotiated
settlement of their dispute, with the
parties retaining control of the
decision on whether or not to settle
and on what terms.
Benefits
Communication problems / deadlock problems between the parties
can be overcome.
The legal costs, lost opportunity costs and management time can be
reduced.
Mediation can produce outcomes that might not be possible via
determination by the court.
Mediation can provide a speedier resolution.
Mediation has a high success rate and produces durable results.
Even if a mediation does not result in settlement, the parties are
likely to have benefited from the process by:
having the opportunity to listen to each other's points of view and
perspectives;
narrowing the issues in dispute; and
testing with the mediator the strengths and weaknesses of the
case, and the strategies adopted or considered, in the run up to
trial.
Disadvantages
If unsuccessful, mediation will add
time and cost to the process of
resolving the dispute.
There is a fear that mediation will
expose the client's hand or strategy.
Parties who consider that they have a
strong case, may feel that this is not
adequately recognised through the
mediation process.
This case involves a claim brought by Lilian Halsey against the NHS
Trust after her husband who was being fed through a nasal drip died
due to liquid food entering his lungs. The results of the inquest were
inconclusive as two medical experts disagreed about responsibility.
Mrs Halsey's solicitors claimed for bereavement damages but their
offer to mediate to settle was rejected as the Trust stated that they
did not accept any liability. At trial the claim was dismissed and the
Trust won their case. However, Mrs Halsey's solicitors asked for costs
to be awarded as the Trust had refused to mediate.
The original trial judge refused to award costs against the successful
defendant and the case was taken to the Court of Appeal.
The appeal judges concluded that the original judgement was correct
as the Claimant "had come nowhere near showing that the Trust
acted unreasonably in refusing to agree to a mediation".
Halsey
Halsey
So, following Halsey, if the suggestion to
mediate is rejected out of hand, without any
consideration of the mediation option, cost
sanctions are likely.
If the suggestion is considered, but
rejected, a thorough explanation of the
reasons for rejection must be given,
although there will still be a risk of cost
sanctions if the refusal is considered to be
unreasonable.
Boundary disputes often have little or no financial interest for either party,
yet interests in land can become entrenched very quickly leading to timeconsuming, expensive and life-changing conflict.
Human nature such as intransigence, aggressively territorial behaviour,
and an unwillingness to compromise, perhaps derived from other incidents,
together with the potential for dishonest and manipulative behaviour
aimed at securing an advantage.
A failure in some cases by courts12 and solicitors to focus the parties
minds as early as possible on the need carefully to consider the costs and
benefits of pursuing litigation.
The adversarial nature of litigation, and a tendency of some solicitors to
discourage compromise.
The high cost of litigation favouring those with deeper pockets.
Difficulties in securing the co-operation necessary to make mediation
effective, and in relation to making the conclusions reached by these
means binding and enforceable.
Inherent difficulties involved in determining legal boundaries arising from
inadequate or inaccurate documentation and the fact that many title plans,
including the Land Registry title plan, only define general boundaries and
not precise legal ones (leading to confusion and misunderstandings by
parties to disputes).
Boundary disputes
One dispute in Hertfordshire began when planners used a thick pen to mark out
boundaries. The area was just 60 cm wide, yet the legal costs run to 400,000.
In Cheltenham, neighbours spent two years fighting over a 6m patch of land.
Two neighbours spent 500,000 in a dispute over the ownership of a thin strip of a
drainage ditch. It was described as Dickensian litigation by Lord Justice Bean who
also ruled: At a time when courts are under great pressure, the battle between
these two couples took up 10 days of court time - more than some murder trials.
Norris J in Bradley v Heslin [2014] EWHC 3267 (Ch), highlighted his thoughts on the
negative financial and community cost of a neighbour dispute going all the way to
trial: I think it is no longer enough to leave the parties the opportunity to mediate and to
warn of costs consequences if the opportunity is not taken. In boundary and
neighbour disputes the opportunities are not being taken and the warnings are not
being heeded, and those embroiled in them need saving from themselves. The
Court cannot oblige truly unwilling parties to submit their disputes to mediation; but
I do not see why, in the notorious case of boundary and neighbour disputes,
directing the parties to take (over a short defined period) all reasonable steps to
resolve the dispute by mediation before preparing for a trial should be regarded as
an unacceptable obstruction on the right of access to justice.
Land/Real Property
Disputes
Rights of way, rights of light and other
easements
Neighbour disputes
Party walls
Misrepresentation claims and other
conveyancing disputes
Options and overage
Property development and complex purchases
Joint ventures and partnership disputes
Restrictive covenants
Commercial Landlord
and Tenant
Negotiating leases
1954 Act lease renewals friendly and
hostile
Consents to assignment, sub-letting,
alterations
Rent Reviews
Break clauses
Dilapidations
Service charges
Professional Negligence
Conclusions
Mediation is a very good thing,
whether you like it or not.
Costs are the single biggest issue in
litigation and a failure to mediate can
turn a winner into a loser.
Mediation is very apt for all land law
disputes.
Any questions?