As we head into the summer show season many in the farming community will be looking forward to an opportunity to catch up with friends old and new.
Ringside chats are a real morale boost, letting people take a break from the day-to-day challenges of farming life, whether it’s stock sale prices, new tax burdens or family tensions around succession.
But beyond the camaraderie of show-time catch-ups, open dialogue is also a powerful tool to help navigate the bad times.
Sadly, it’s all too common in rural dispute resolution cases to find that issues between the parties have been exacerbated due to misunderstandings or a lack of communication. And this can often result in hefty legal fees and - for one party at least - unhappiness with the outcome.
This is why we strongly encourage mediation – both for parties already engaged in a dispute, and anyone who is concerned they may end up in one.
What is mediation?
At its heart mediation is a confidential process whereby an independent third party (the mediator) helps two or more parties in dispute to negotiate and try and reach a resolution on matters.
The mediator is not there to take sides; their role is to facilitate the discission and encourage parties to look at their dispute from different perspectives so that they can reach a resolution.
How does it work?
Mediation is designed to be a less formal process compared to disputes resolved via the court system.
It might take place online or in person, with the day normally beginning with the mediator setting out the rules of the process. Thereafter the mediator will go between the parties, discussing the dispute and working towards a resolution.
The parties may be brought together during the mediation process, to discuss matters directly if that is felt beneficial.
Clearly face-to-face contact might not always be suitable in all cases. The mediation process will be tailored to the specific situation, so that if the parties cannot be in the same room, they never need to be.
If a settlement is reached at the mediation, then this will normally be drawn up into a binding agreement by the parties or their advisers.
Why is mediation a good route?
Parties can opt to go to mediation and any time during their dispute, including whilst there are ongoing court proceedings. In the latter situation mediation may allow the court proceedings to be brought to an end more quickly where a settlement can be reached.
In complex disputes it is often the case that multiple court actions could be required to achieve the result a party is hoping for, whereas mediation allows parties to deal with all the issues at once.
Mediation is known for allowing parties to be creative in any resolution reached; in essence, provided it’s legal then parties can agree it. Contrast this with court actions where the orders the court can make can be quite rigid and sometimes not the best outcome for the parties involved.
This is one reason that succession disputes are ripe for mediation given the need to structure settlements in tax and financially efficient ways.
What if we can’t resolve matters at mediation?
Whilst around 80% of disputes which go to mediation will resolve during the process, that means one in five don’t.
Our experience tells us that it’s not always a bad thing if matters don’t resolve at mediation – often, settlement follows in the weeks afterwards, with the mediation process bringing clarity to the issues at stake.
It’s important to remember that mediation is confidential, so that if matters have not resolved at mediation, nothing that’s been said there can be used in the court process.
How much does it cost?
The costs involved very much depend on the dispute and the number of days that the mediation will take place over. Another factor is if the mediation requires professional advisers such as lawyers and accountants to be involved.
In our experience, mediation costs are significantly lower than a defended litigation, which can cost at least five figures.
There’s also financial assistance available for certain disputes. For example, the Scottish Tenant Farming Commissioner (TFC), which runs a mediation scheme for landlord and tenant disputes, will make a contribution towards mediator costs.
Our clients in the rural sector tell us that the most important factors for them are time, cost and relationships. Mediation takes account of all these, and more - placing control of the dispute and its resolution in the parties’ hands.
If you are in a dispute - or concerned that one might arise - you could do worse than consider whether mediation might just offer you the best way through.
