Mediation option can be best for solving disputes
In his latest blog, Tenant Farming Commissioner Bob McIntosh explores the benefits of mediation, and why it's particularly suited to settling disagreements between landlords and tenants.
This time of year is understandably quiet for the Tenant Farming Commissioner as everyone is flat out with harvest, but it does give me time to reflect on how to best help tenants and landlords to navigate the situations they sometimes find themselves in. Any misunderstanding or poor communication can be frustrating, but some of the most stressful disputes are those that have built up over many years, creating considerable bad feeling.
I have, thankfully, only been involved a handful of cases where parties have reached a stalemate and where I felt the situation couldn’t be aided by the Tenant Farming Commissioner’s role. Of course the parties could resort to the Land Court, but I felt there was more than legalities to be resolved in these cases and a ruling on legal rights alone would do little to help future landlord/tenant relationships. I therefore decided to investigate alternative forms of dispute resolution.
After researching the merits of arbitration, expert determination, and mediation, I decided that the ability of mediation to address legal and non-legal issues – particularly its ability to handle rebuilding of relationships between the parties – made it particularly suitable. I was especially drawn to mediation as an extended form of negotiation that has the potential to address family concerns and long-standing business relationships. A key advantage of mediation over arbitration is that the mediators do not make decisions; that’s not their role. They simply help participants to reach agreement between themselves. Recognising that mediation was little tested within the farming sector, the Scottish Land Commission decided to fund a pilot mediation service and has recently published a report on the lessons learned.
The pilot disputes presented a range of issues, including resolving landlord-tenant obligations, negotiating rent reviews, agreeing compensation for improvements and resumption, negotiating land sale/purchases, agreeing a lease, and establishing communication arrangements for the future. Each mediation included several of these aspects – if not at the beginning, at least by the end of the day, as it was not uncommon for new matters to be raised and receive consideration during the process. I’m pleased to say that settlements were reached in all of the pilot mediations, dealing with several matters which were already being litigated or where litigation had been threatened.
As you might expect, there was tough talking and some uncompromising bargaining; the initial stances and behaviours drew on a history of disagreeable relationships between the parties, sometimes going back generations. However, the mediation process allowed attitudes to change, and dialogue became more respectful and constructive. As the outcomes had the potential to affect the prospects of their descendants in the future, mediation provided opportunities for engaging the parties in long-term thinking about resolving the dispute for the benefit of posterity on both sides.
In mediation, both parties are heavily engaged in the process and take responsibility for actively trying to resolve their dispute. This can be a daunting prospect for landlord and tenant parties, particularly those who are starting from the basis of an acrimonious relationship. I spent some time with parties explaining the process, encouraging them to take part and providing reassurance in mediation as a worthwhile approach. I explained that either party can walk away at any point during the mediation process if they feel an outcome cannot be reached. If this happens, the discussions held in a mediation are without prejudice – meaning they cannot be referred to in litigation or other dispute resolution processes to follow. For this reason, I encourage parties to give it a real go: there is little to be lost in trying mediation, but potentially a lot to be gained. If a settlement can’t be reached, any time spent in mediation is not wasted: more often than not, the discussions lead to a greater understanding of where the other party is coming from and help to narrow down the issues to be determined by a court or other form of dispute resolution.
I was pleased to find that the timescales for mediation are significantly less than litigation timescales, which can tie up the parties, their advisers, and the courts in many days of preparing evidence and attending hearings. In a similar vein, the costs of mediation for each party may be put at a few thousand pounds, whereas the costs of litigation may cost a few tens of thousands of pounds – even more if one party has to meet the other party’s costs. For some of the pilot participants, engaging the Land Court was not a realistic or a preferred option – mainly due to the cost – so the mediation provided equal access to a fair basis for dispute resolution where no party had an advantage over another.
What is most encouraging is a spirit of willingness by both parties to build on the improvement in relationships made during the mediation day and participants have noted that relationships have generally improved.
If you would like to find out more about the pilot mediations and read what some of the participants thought, please have a look at our new report on Mediation in the Tenant Farming Sector – Lessons and Feedback from a Pilot Scheme.
Further information on our current mediation scheme can also be found on the website along with a TFC Guide to Alternative Dispute Resolution, which explains some of the ways in which you can resolve disputes without going to court.
For more information, visit landcommission.gov.scot or get in touch at 01463 423 300 or email firstname.lastname@example.org.