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Mediation in the Tenant Farming Sector


TFC Mediation Scheme 2021-23

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. 

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.


The new TFC Mediation Scheme 2021-23 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.
 

Find out more:

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.

  1. Consider whether you are eligible and have a look at the application form.  
  2. Discuss your situation with the TFC.
  3. 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. 
  4. 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.
  5. 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.
  6. 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
Email: sarah.allen@landcommission.gov.scot
Tel: 07771 381364 

You can also email the Tenant Farming Commissioner, Bob McIntosh, directly at: tfc@landcommission.gov.scot

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. 
 

Application Form

TFC Mediation Scheme 2021-23 Application Form

TFC Panel of Mediators

Crispin Agnew

Sir Crispin Agnew of Lochnaw Bt QC went non-practising in April 2020. He had a specialist practice in all aspects of Rural Land Law with a particular interest in agricultural law and landlord and tenant under the Agricultural Holdings (Scotland) Acts. He is the author of books including: Agricultural Law in Scotland (1996) and The Agricultural Holdings (Scotland) Acts (co-author with D Rennie) (1996).

He is a trained Mediator and, since 2000, has acted for parties in a number of agricultural related mediations as well as acting as mediator. He is based in Edinburgh but will travel throughout Scotland. He will work in conjunction with Robin Burley or Lindsay Burley of Eskhill & Co.

Contact details:
Email: crispin.agnew@advocates.org.uk
Telephone: 07739 639 126

Rachael Bicknell

Rachael mediates a broad range of business, commercial, civil, neighbour, and workplace conflicts, from those which have a strong emotional impact, to those where the parties are more commercially driven. She is empathetic, engaging, inquisitive and tenacious. She works hard to put the parties at ease, to help them better understand each other, to see things differently, and to become invested in creatively exploring a way forward.

Rachael has fond memories of rural life on her grandfather’s dairy farm and her love of the Scottish countryside continues to this day. As part of her mediation practice, she seeks to apply this understanding of the rural industry to the commercial issues faced by those who live and work within this sector.

Contact details:
Email: rachael@squaringcircles.uk
Telephone: 0131 259 4679 or 07817 665 964
Website: http://www.squaringcircles.uk/

Lindsay Burley

Lindsay has mediated for 17 years, carrying out over 300 mediations in the commercial, court, workplace, complaints and agricultural holdings sectors. Over the last four years she has led or co-mediated six mediations between landlords and tenant farmers, initially under the auspices of a Scottish Government project and subsequently for the Scottish Land Commission pilot. Lindsay mediates across Scotland and has considerable experience of virtual mediations, mostly using Zoom technology.

As a member of the SLC Panel, she may use a co-mediation model, working in partnership with Crispin Agnew, Robin Burley or Pamela Lyall. There will also be opportunities to design short early dispute resolution meetings for parties where appropriate.

Contact details:
Email: lindsay@eskhill.com
Telephone: 07831 605 858
Website: www.eskhill.com 

Robin Burley

Robin has been mediating for 17 years and carried out over 300 mediations in commercial, workplace, planning, in-court, complaints and agricultural holdings disputes. Robin has a Masters in mediation and dispute resolution from Strathclyde University and is actively engaged in developing mediation, including as past chair of Scottish Mediation.

Robin co-ordinated mediation services for Scottish Government and Scottish Land Commission contracts dealing with seven agricultural holdings disputes and co-mediated four. His approach is to design each mediation to fit the case offering fixed-fee early dispute mediation to full mediation processes. In appropriate cases Robin will co-mediate with Lindsay Burley, Crispin Agnew or Pamela Lyall.
 

Contact details:
Email: robin@eskhill.com
Telephone: 07774 127 809
Website: www.eskhill.com

David Hossack

A Partner in Morton Fraser, David has over 32 years' experience in dispute resolution. His practice covers commercial litigation, judicial review, personal injury litigation, immigration, employment and licensing. David trained as a mediator in 2003 and has been heavily involved in mediation since, mediating in more than 100 disputes in Scotland and across the UK.

David is one of only four lawyers accredited as specialists in commercial mediation by the Law Society of Scotland. He has been a mediator in the Edinburgh Sheriff Court mediation project since 2004.

David co-mediates with Laura McKenna, who is also on the SLC panel.

Contact details:
Email: david.hossack@morton-fraser.com
Telephone: 0131 247 1024

Laura A. McKenna

Laura is an experienced employment lawyer and trained mediator in Morton Fraser's Litigation Division, which is one of the largest and most experienced litigation teams in Scotland. She is based in Glasgow, but covers work in locations throughout Scotland. After gaining more than seven years of experience in litigation and dispute resolution, Laura decided to undergo training to become a mediator as she is passionate about the benefits that mediation can offer parties to a dispute. 

As a qualified mediator, Laura is a member of Scottish Mediation and sits on their Committee for the Promotion of Mediation, as well as being a member of the panel of mediators at Edinburgh Sheriff Court. 

Laura co-mediates with David Hossack, who is also on the SLC panel. 
 

Contact details:
Email: 0141 3037173
Telephone: laura.mckenna@morton-fraser.com  
 

Pamela Lyall

Pamela is one of Scotland’s most experienced mediators, accredited as a mediator by CEDR in 2000. She trained as a solicitor and was made partner with Dundas & Wilson, Edinburgh.

Pamela is now a fulltime mediator and has mediated in disputes relating to a broad spectrum of sectors, including farming, and was part of the consortium, along with Robin and Lindsay Burley, which successfully won the tender bid for the TFC Pilot Mediation Scheme. Normally working with an unpaid assistant, she would be very willing to co-mediate with either Robin or Lindsay Burley going forward. Based in Edinburgh, Pamela is happy to travel anywhere in Scotland if required.

Pamela’s style is proactive, realistic and pragmatic as well as positive.
 

Contact details:
Email: pamela@pamelalyall.com
Telephone: 07778 384150 or 0131 447 8394
Website: www.pamelalyall.com

Sandy Wilson

Sandy is a Scottish Mediation Registered Mediator based in Humbie, East Lothian. An Edinburgh Sheriff Court Mediation Service Mediator, he is accredited by Core Solutions Group Limited (2009). As a former senior career banker, Sandy has commercial experience gained over more than 35 years in problem solving environments including financial restructuring, litigation management and dispute resolution. His experience has long convinced him of the benefits of mediation over adversarial litigation.

Sandy’s mediation experience includes commercial disputes (banking, business to business, company valuation, contractual, construction, building works, land, property including rural and neighbour, professional negligence and intellectual property), consumer/utility, and landlord/tenant and factor disputes.

Sandy mediates throughout Scotland via face-to-face, teleconference or Zoom.
 

Contact details:
Email: wilsoad8@btinternet.com 
Telephone: 01875 833 233 or 07590 922 845