Mediation in the Tenant Farming Sector
Tenant farmers and landlords involved in a dispute know that it can be overwhelming and difficult to find an acceptable outcome. This can lead to or exacerbate problems in maintaining strong and constructive relationships, important to the tenant farming sector.
With this in mind the Tenant Farming Commissioner (TFC), who is responsible for promoting and encouraging good relations between tenants and landlords, commissioned a Guide to alternative dispute resolution. It provides an outline of some of the ways in which you can resolve disputes without going to Court (mediation, arbitration, expert determination and negotiation) and covers some frequently asked questions about mediation.
What is mediation?
Mediation involves a third party, the mediator, with no vested interest in the outcome, to help parties reach a mutually acceptable outcome. Mediation can address legal and non-legal issues and evolves as the process develops – encouraging parties to think differently in order to find an acceptable outcome.
Mediation works because both parties are heavily engaged in the process and take responsibility for trying to resolve their dispute. The process is flexible and voluntary, so either party can walk away if at any point if they feel that an outcome cannot be reached.
To find out more about mediation have a look at our mock mediation videos which show a live mediation from preparation to settlement.
TFC Mediation Scheme 2021-23
Those who took part in the TFC’s Pilot Mediation Scheme which ran from 2018 to-2020 told us:
• the outcomes achieved would not have been possible in a court process
• the mediation process was quicker and less costly than seeking resolution through litigation
• landlord/tenant relationships have improved as the decisions made were their own, and not imposed by a third party.
Feedback suggests that support of the TFC is still valuable in providing reassurance about mediation to potential participants and in providing oversight that encourages participants to engage productively.
The Scottish Land Commission launched a new scheme for agricultural landlords and tenants in January 2021 to improve access to mediation to help them resolve disputes (or potential disputes) as an alternative to seeking resolution through litigation.
The scheme has three elements:
• A Tenant Farming Commissioner gateway – to ensure parties are suitable and ready for mediation and to enable access to TFC support and reassurance if required
• An approved panel of mediators – to provide easy access to experienced mediators
• A contribution from the Scottish Land Commission of one third of the total cost of the mediation process (payable to mediators on the panel) up to a maximum of £1,000 (+VAT) to provide an incentive for participants to try mediation.
The scheme is open to any relevant party* in the tenant farming sector provided that the following criteria are met:
- Parties have attempted to resolve their issues through constructive engagement, and where applicable have applied the principles of TFC Codes of Practice and Guidance and sought the advice of the TFC
- Parties agree to take part in the mediation and are willing to prepare and engage constructively
- Parties agree to split the costs of the mediation.
* this includes landlords, tenants or agents acting on their behalf; we can also consider any other relevant party with an interest in the tenancy.
- Consider whether you are eligible and have a look at the application form.
- Discuss your situation with the TFC.
- Complete the application form and submit it to the TFC. You can either complete the form as a PDF and email it, or you can print it out and submit it by post.
- The TFC will consider whether your case can be taken forward under the scheme. This is likely to involve discussion with you if this has not already taken place.
- You will be informed of whether you are eligible for funding under the scheme. If successful you will be invited to select a mediator from the TFC’s Panel of Mediators and make arrangements directly with them for the mediation (see below 'How to select a Mediator from the TFC Panel.') If your application is unsuccessful you are welcome to contact anyone on the TFC’s panel of mediators to discuss mediation services. They will, however, be unable to access funding under this scheme.
- Terms of engagement will be agreed directly between you and the mediator. Mediators on the panel can apply to SLC for up to £1,000 (+VAT) to contribute towards the costs of each mediation approved by the TFC. Payment will be made to the mediator after the mediation has concluded. Parties taking part in the mediation will be expected to split equally the remaining cost of the mediation and make direct payment to the mediator.
Our mediators will discuss with you their own procedures for confidentiality.
Neither the TFC or the Scottish Land Commission will be a party to or participate in any mediation. Your mediator will ask you if you wish to share the outcomes of the mediation with the TFC. You are under no obligation to do so, and only agreed information will be shared with the TFC if both parties agree to do so.
Once an application has been approved by the TFC, we suggest that you contact several of the panel members to discuss your requirements and what mediation services they would be able to provide in your circumstances. The mediators will be able to talk you through the mediation process and provide an indicative fee. The mediators are aware that scheme applicants will be in touch once their application has been approved by the TFC. They are also aware that applicants are likely to contact several panel members before making a choice on which mediator they would like to proceed with.
The TFC will not recommend a mediator from the panel. All of the mediators on the panel have been through a rigorous selection process and we are confident that any one of them will be able to provide a good service. Information about all of the approved mediators can be found in their biography sections below.
If you have any questions about the scheme or would like to discuss submitting an application please contact:
Sarah Allen, Head of Tenant Farming
Tel: 07771 381364
You can also email the Tenant Farming Commissioner, Bob McIntosh, directly at: email@example.com