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Mediation Marks the Way Forward

Bob McIntosh

Disputes cost time and money and can cause a lot of worry. Those who follow this blog will know that the role of the Tenant Farming Commissioner (TFC) is to foster good relations between landlords and tenants. The TFC was given powers to issue Codes of Practice and to investigate alleged breaches of the codes, but I have always taken the view that the codes are there to help people reach agreement rather than as a means of catching people out. My experience suggests that addressing issues early in a dispute is often more productive than leaving things to fester, and I will do all I can to prevent things reaching a state where one party feels that they have to make a formal complaint about the behaviour of the other. That is not a good way to build a good landlord-tenant relationship.

I like to think I have had some success in helping to resolve issues without them becoming the source of litigation or a formal complaint about a breach of a code. Having said that, soon after I took on the role of Tenant Farming Commissioner, it became apparent that in a minority of cases I would not be able to bring the parties together – but I still felt that litigation was avoidable. 

For these long-running, difficult cases, we provided access to professional mediators through a trial mediation scheme where the Land Commission met the cost of the mediators and the landlord and tenant met their own costs of professional support. Landlords and tenants who took part in the pilot have said that mediation enabled them to address issues that couldn’t have been resolved in court and they felt happy with the outcome as they had been directly involved in reaching the decision themselves. Importantly, they felt the process had given them a basis on which to re-build the landlord-tenant relationship moving forwards.

I am convinced that mediation has a potentially important part to play in resolving landlord-tenant issues that might otherwise worsen, or which might result in litigation of one form or another. I’m keen to build upon what we have learned about using mediation and move towards mainstreaming mediation in the tenant farming sector.

To illustrate how mediation works and to showcase its benefits in the tenant farming sector we, along with the Agricultural Law Association, were planning to host a mock mediation event earlier in the year – but like so many other events we have had to re-think how we might run it. The original plan was to stage a live role-play, representing a real mediation to resolve a waygoing from an agricultural holding. We can’t now host the event physically but have found that mediations have been moving online with great success and mediators are getting very positive responses from participants. In fact, many mediators are expecting that video-conference mediations will become the setting for a good proportion of mediation activity in the future – reducing costs by removing the need for participants to travel or book venues. 

If this is to be the future, we decided that there is merit in showing how not only how a mediation works – but how it works online. The mock mediation participants, who are not actors but all experts in their field, have all agreed to give it a go. We have Christopher Nicolson (STFA Chairman) playing the role of tenant and supported by Hamish Lean and Tom Oates, and we have David Johnston (former SLE Chairman) acting as the landlord and supported by Heather Bruce and Mark Fogden. The mock mediation, which is hosted by professional mediators, will be pre-recorded and shown in segments at a live online event on the mornings of 7 and 8 December, where delegates will be able to ask questions as the process unfolds.

I very much hope that this event will help to improve the understanding of how mediation can be used within the sector. It’s the first time that anyone has tried to demonstrate mediation in this format and I’m really looking forward to attending. The event is open to anyone, and if you would like to see the full programme and sign up please visit the events page of this website.



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