Worthing Newsletter – December 2018

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A Case for Mediation in Resolving Civil Disputes

The Times recently reported on a dispute between two neighbours which perfectly illustrates how out of hand minor disagreements can become.  On face value, the story seems barely believable – two pensioners were ordered to pay over £20,000 in damages after trimming their neighbour’s hedge following a six-day trial in London; but as ever, the devil is in the details.  Pensioners Robert and Jennifer Oldfield had pruned their neighbour’s (Clare Pollock) 6-metre blackthorn and hazel hedge back to an earth bank as they believed it was encroaching on their land.  During the case, Mr Oldfield stated he believed the legal boundary was to the east of the earth bank while Ms Pollock believed it was to the west.

After pouring over photographs and aerial surveys, and visiting the site of the dispute, Judge Nicholas Parfitt ruled in favour of the Oldfields; however, this was later appealed.  The case then went to the High Court, where Mr Justice Arnold reasoned it was “more probable than not” that the actual boundary was originally a stock-proof fence (no longer in place) which had run along the West of the earth bank.  By giving his ruling, the original decision was overturned in favour of Ms Pollock, ordering the Oldfields to pay damages of £22,500.

What can be learned from this case?  While we can’t turn the time back, it is hard to see why two perfectly reasonable parties could not discuss the matter directly without the need for Court intervention, foreseeing that a legal battle would be counterproductive, stressful, and costly.  Enter the role of Alternative Dispute Resolution.

What is alternative dispute resolution?

Alternative Dispute Resolution (ADR) offers a way of resolving disputes without the need to involve the Courts.  Examples include methods such as negotiation and mediation.  Typically, such approaches involve a neutral third-party who will help the disputing parties work towards a common agreement – as such; they do not impose solutions.

ADR offers several distinct benefits:

  • Typically cheaper than resorting to formal litigation
  • The process is less stressful than going to Court
  • It can offer a fast resolution
  • It is confidential
  • It can help preserve the relationship between the disputing parties in the long-term

As part of the Jackson Reforms, a series of recommendations made by Lord Justice Jackson to reform costs in litigation, the importance of ADR was made clear, and there is greater pressure now to use this approach where possible.

What is Mediation?

Mediation is a common method of ADR and involves a neutral third-party mediator, whose sole role is to find an arrangement that will work sufficiently amicably to avoid formal litigation.  While it offers considerable benefits, it may not be applicable in all contexts, for example whereby an urgent resolution is needed.  The process of mediation is as follows:

  • The suitable Mediator must be appointed and an agreement made on fees, the terms of the mediation, and arrangements for the process.
  • Having reviewed the case summary submissions of both parties, the Mediator will make contact with each person involved in the dispute to explain the process, confirm who will be attending, and confirm arrangements.
  • At the mediation, the format may be varied depending on the precise circumstances of the dispute. It is important to understand it is flexible.  During the mediation, the following will typically occur:
    1. The Mediator will introduce themselves to the parties in separate rooms.
    2. A joint meeting is then held to establish the rules for mediation, explain the process, review and sign the mediation agreement, and explain the likely timescales involved.
    3. Each party will then take turns in giving their opening presentations.
    4. If appropriate, it may be that each party is asked to comment briefly on the opening presentation of the other party.
    5. Parties will then return to their individual rooms – with the Mediator shuttling between rooms to help the disputing parties move closer to understanding each other’s views, and what will need to happen for an agreement to be found. Mediators are highly adept and trained in helping individuals to explore the perceived strengths and weaknesses of their case and will not make any judgements themselves.  At this stage, the Mediator will work to narrow down the range of issues which are key to settlement.
    6. At the end of the process, the parties may or may not reach an agreed settlement – or there may be a partial settlement. Any settlement will be written up by Solicitors present and then signed before leaving the mediation premises.  If there is no settlement, it may be that the mediation process is then ended, or it may be extended, or handled outside of the mediation process.  It may be that if an agreement was not made during the session, one is reached soon after, or the Mediator may be asked to make a non-binding recommendation by the parties.

In conclusion

During a civil dispute, it is important to weigh up the options for resolution carefully.  There is a range of alternative dispute resolution methods, including mediation, which may help you avoid protracted and costly court action.  While not appropriate in all contexts, mediation can help you overcome your dispute cost-effectively and quickly, and importantly can help preserve your long-term relationship – which may be especially desirable for neighbours, friends, or those who work together.

Bennett Griffin are award-winning Solicitors based in West Sussex with offices in central Worthing and Ferring.  Our experienced and specialist Solicitors offer a comprehensive service and will work with you in an honest, considered, and practical manner.  Our civil dispute resolution Solicitors can advise and assist you in relation to resolving a civil dispute.  Please contact us on 01903 229 999 or by email at info@bennett-griffin.co.uk for more information.