In our last post on this topic Jacqui Joyce and Peter Bourke outlined the proposals in the Property Boundaries (Resolution of Disputes) Bill, which if enacted, will establish a system for determining boundary and rights of way disputes by adjudication by surveyors.
In this post Gary Webber looks at how the Bill, if enacted, will affect mediation. Badly!
Mediation will not be allowed! The Bill’s sponsor, The Earl of Lytton, a surveyor, has deliberately excluded mediation from his proposals. Parties to a boundary or right of way dispute will not be able to go to court; they will not be able mediate; they will have to go to a surveyor (s3).
In support of his contention that mediation should not play a role in boundary and right of way disputes Lytton stated this:
“It is also claimed that mediation might resolve such issues. Indeed, this could be so if there were, as a generality, equal strength of position and both parties considered it in their interests to settle the matter informally. Sadly, such convergence of factors is rare and, without that, the basic ingredients for mediation success are lacking. There is no provision for enforcing a mediation settlement. Furthermore, by the time the parties get to mediation, the costs in relation to the value of the land under consideration are often so disproportionate that, as I said earlier, settlement is more often than not quite impossible.”
Let us deconstruct this extraordinary statement:
The fact that the proposed system will be compulsory and that there will be no opportunity for the parties to mediate should they wish to do so is clearly wrong in principle in a free and democratic society. If the Bill is passed it will set a dangerous precedent.
Inequality of bargaining power
The fact that there may be an inequality of bargaining power is no reason to prevent parties from mediating. This is a feature, to some extent, of virtually all negotiations, whether in disputes or otherwise. In fact, in boundary disputes, where parties are neighbours, and so usually of the same social class / wealth levels, there is probably less inequality of bargaining power than in many other disputes.
Mediation is a voluntary process.
The parties will by definition be using mediation if they consider it “in their interests to settle the matter informally”.
Lytton states that “such convergence of factors is rare and, without that, the basic ingredients for mediation success are lacking”. Yet he offers no evidence to support this contention. We, at The Property Mediators, have done scores of mediations involving boundaries and large numbers have settled. I think most mediators would say the same. The regular evidence offered by CEDR / CMC supports the contention that there are high rates of settlement at mediation generally.
(2016 CMC audit).
“Although the overall success rate of mediation remains constant, with an aggregate settlement rate of around 86%, there is a variation from previous years’ audits in how those settlements are achieved. The proportion of cases that achieve settlement on the day of mediation has fallen from 75% to 67%, but this decrease has been offset by an increase in the proportion of cases that settle shortly after mediation, rising from 11% to 19%.”
Earl Lytton is manifestly wrong when he says there is no provision for enforcing mediation settlements. Once an agreement is reached and is signed by both parties, it becomes binding. It is true that in cases where there is a transfer of land involved as part of the settlement care will be needed to ensure that certain legal formalities are complied with but once that has occurred the agreement is enforceable. It is also true that a binding agreement is not always reached on the day of mediation but, of course, once agreement is reached it will be binding.
It is true that by the time the parties get to mediation the costs are frequently disproportionate in relation to the value of the land. It is also true that in some cases the costs make it more difficult to settle, especially where there are other vested interests at play, such as where an insurance company is funding one side and won’t agree to a settlement unless their costs are paid. However, in most cases the thought of on-going costs is usually a factor that helps to motivate the parties to settle.
There are also other cases where the land does actually have a lot of value, particularly where the owner on one side wishes to develop.
Finally, it is vitally important to note that adjudication (whether by a judge or a surveyor) of any kind does not allow the decision maker to deal with the underlying interests and concerns that motivate people in all disputes; nor does it allow the decision maker to provide the varied solutions that parties come up with for themselves in mediation. It is therefore essential that parties to boundary disputes be allowed to mediate should they wish to do so.
The sooner this Bill is killed off the better.
(For another article by Samantha Jackson, barrister, criticising various other aspects of the Bill click here.