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The High Cost of Principles

The recent case of Sowden v Smyth-Tyrell & Anor [2017] EWHC 2477 (Ch) will be of interest to rural arbitrators, land agents and 1986 Act tenants, as well as mediators like us who are keen to encourage farmers and their advisers to think about using mediation to settle disputes before they get completely out of hand. 

This one is all about challenges to the arbitrator's award and, in passing, the absurd costs incurred in finally getting to a decision. The judgement, thankfully, upholds the well-established principle that arbitrators' awards should not be upset unless they have caused an unacceptable injustice.


I recommend the judgement as an enlightening read for arbitrators and rural professionals alike.

"I consider the present situation unacceptable. The arbitration ... has taken four years to reach a final award. Thereafter the parties have chosen to make a series of applications to court under the 1996 Act, at least one appeal to the Court of Appeal, and an application for judicial review... as at 4 July 2017, the legal costs of both parties in total exceeded £500,000 plus VAT. .... Arbitration is supposed to be a relatively speedy... way of reaching a final resolution of a dispute. .... The dispute in this case ... has also led to legal costs which are wholly disproportionate. I was told that the cost of removing the wall and path to which the tenant so strenuously objects would cost about £9,000 ..."

For more information click here.



Mediation Awareness Week 2017

Mediation Awareness Week is operating from 14-20 October 2017 across the country to raise the profile and usefulness of mediation as a form of Alternative Dispute Resolution. Even if you aren't able to attend one of the numerous events, you might well be interested in learning more from the organisations' website:

www.mediationawarenessweek.uk

and you can always contact Steven or David directly from the Contact Us tab on this site.

SAS - Who Dares Wins?

The recent introduction of the RICS Simplified Arbitration Service raises an interesting question for land agents and their clients: will it take us back to the early days of arbitration, when farm rent (and other) disputes were settled quickly and cheaply by a grey haired individual sitting with the parties in the back room of a local pub? Or will it be hidebound by the formal structure within which the arbitration process is trapped? Will arbitrators be willing and able to produce an award within 28 days on a capped fee which, at its best, represents payment for about 15 hours' work?

The scheme is a good idea in principle and should be taken up enthusiastically by those who, until now, have been frightened away from formal dispute resolution by the threat of escalating costs; but it remains to be seen whether it will be greeted with the same enthusiasm by those who will be asked to make the awards. Will they see it as the "informal and relaxed procedure" promoted by the RICS, or just a very time- and cost-pressured alternative to the present system? After all, the same 1996 Act rules will still apply, and the requirement to produce a reasoned award is unlikely to be waived by many (or any) parties; so the job of the arbitrator is not qualitatively different.

In the meantime, mediation is always an option, and is both cheap and quick. Using an experienced land agent mediator gives you the advantages of specialist background knowledge with none of the formality, so that results can be achieved within the space of one day. Food for thought.

The importance of recording agreements

A recent article by Birketts LLP, the agricultural law specialists, highlights the importance of recording agreements between family members ( see www.birketts.co.uk/resources/legal-updates/2061/agricultural-brief--dont-get-off-my-land ). As mediators, we wholeheartedly agree. We have mediated many disputes arising from situations similar to those outlined in the article and know well how much emotional pain as well as cost can be generated by a failure to think ahead. Farming families are often strongly patriarchal and there is an expectation among the elders that their wishes will automatically be followed; but without a written agreement this requires not only good will, but 20/20 hindsight. Land agents and other professional advisers have a great opportunity to help their clients avoid future problems by encouraging them to plan ahead and make proper written agreements for land transfers, gifts, and other provisions. If you encounter problems in getting the message across, we will gladly supply horror stories to illustrate just how badly things can go wrong!

One day, all this will be yours...

The recent decision in Moore v Moore (High Court, 2016) once again draws the attention of professional advisers to the need for proper succession planning and is a reminder of the numerous pitfalls that can trap the unwary. As mediators, we are finding that proprietary estoppel is being presented as a ground of claim - or defence against a claim - in almost every will dispute we see. No doubt, mediation is a sensible way forward when the facts are unclear and the case at trial is likely to boil down to one person's word against another's; but it would be so much better if families were to discuss the future constructively with their advisers in good time and leave a clear path to the next generation. The cost savings, in terms of time, money and heartache, would be immeasurable

What The Parties Want From Their Mediator

The recent CEDR survey of mediation - www.cedr.com/docslib/The_Seventh_Mediation_Audit_(2016).pdf - reveals a trend which we at 3rpm have long recognised: that professionals and their clients frequently choose mediators whom they consider experts in the subject matter of the dispute, precisely because they want the mediator to bring that expertise to bear, when appropriate, to help focus the parties' minds on sensible ways to resolve the dispute. We welcome this; our mediators are all trained in the facilitative model of mediation, and fully understand the importance of helping parties reach their own decisions that take account of both their human and commercial needs, but they are ready to use evaluative methods where circumstances dictate and the parties want it.

Mediate - save time and money!

The World Bank recently reported that Singapore is the fastest and cheapest place in the world to litigate. Cases take an average of 150 days to process and cost an average of 25.8% of the value of the claim. If these are supposed to be good results, you can picture what a bad result looks like. A recent matter settled at mediation had been rumbling along for three years and had already cost the parties a total of three times the value of the claim. 

We encourage people to consider mediation as early as possible in a dispute because the alternative, apart from the stress and damage to working or personal relationships, can be very unattractive. March 2016

Without Prejudice?

We all know about the use of Without Prejudice privilege in the context of negotiations to settle disputes, but most of us would admit that understanding Without Prejudice rules is as baffling as the offside rule.

A recent Appeal Court decision - Suh v Mace(UK) Ltd [2016] EWCA Civ 4 - considered the implications for WP on information divulged during an interview between a litigant in person and the solicitor for the other side. As always, you need to read the whole judgement to get a full appreciation of the point, but the decision seems to widen the application of WP protection: perhaps not directly relevant to mediation, but of interest to anyone who spends a lot of time negotiating settlements in the shadow of litigation.

And the relevance of the picture? It's just part of a disastrous cable laying project on a farm, where the landowner's claim is almost certain to end up in the Lands Tribunal (FTT(PC)) unless WP negotiations have the desired effect of reaching a sensible settlement.

January 2016

Damage by utility companies

If your farm has suffered damage by the laying of a pipeline or cable through it, you are entitled to compensation; but often there is disagreement about the amount due. You will normally have a dispute resolution clause in the deed of easement or you will be covered by statutory rights to help negotiate a fair settlement, but when negotiations get stuck, it's worth thinking about mediation as a quick and cheap way of resolving the impasse, rather than the considerable cost, delay and uncertainty of referring the dispute to arbitration or the Upper Tier Tribunal. A mediator with a background in agricultural valuation can help the parties cut through the disagreements quickly and effectively, with the minimum of fuss. - October 2015

Herbicide Malfunction?

Most farmers, faced with a spraying catastrophe, will be more concerned about how to put it right than who is to blame. They need a quick solution and they need to maintain a working relationship with their agronomist or supplier. Mediation is the ideal way to resolve business problems with the minimum of fuss, if a negotiated agreement is proving difficult. - September 2015

Just a thought …

Mediation will help you find a solution, not a scapegoat.

Rics CAAV

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E-Mail: enquiries@3rpm.co.uk


About us

Our rural property mediators are experienced agricultural valuers and land agents with specialist knowledge of the kind of problems and disputes that can arise on farms, rural property and in rural business. We can help you find practical, workable solutions and assist you to preserve or rebuild family and business relationships for the future.… even for the most stubborn and long-standing of problems.

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