The judge in this latest case (Bradley v Heslin) started off the judgment with the following words: “Rather to my surprise I find myself trying a case about a pair of gates in Formby”!
He went on to suggest a form of wording for directions in boundary and rights of way disputes, which in effect, would make it compulsory to attempt mediation in such cases. This is what he said:
“I think it is no longer enough to leave the parties the opportunity to mediate and to warn of costs consequences if the opportunity is not taken. In boundary and neighbour disputes the opportunities are not being taken and the warnings are not being heeded, and those embroiled in them need saving from themselves. The Court cannot oblige truly unwilling parties to submit their disputes to mediation: but I do not see why, in the notorious case of boundary and neighbour disputes, directing the parties to take (over a short defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial should be regarded as an unacceptable obstruction on the right of access to justice.”.
And this is the form of order that he suggested:
“If in any boundary dispute or dispute over a right of way, where the dispute could not be disposed of by some more obvious form of ADR (such as negotiation or expert determination) and where the costs of the exercise would not be disproportionate having regard to the budgeted costs of the litigation, any District Judge (a) imposed a 2 month stay for mediation and directed that the parties must take all reasonable steps to conduct that mediation (whatever the parties might say about their willingness to engage in the process) (b) directed that the fees and costs of any successful mediation should be borne equally (c) directed that the fees and costs of any unsuccessful mediation should form part of the costs of the action (and gave that content by making an “Ungley Order”) and (d) gave directions for the speedy further conduct of the case only from the expiration of that period, for my own part (recognising that certainly others may differ) I think that such a case management decision would be difficult to challenge on appeal.”
By way of reminder an Ungley Order is an order staying proceedings while the parties mediate or at least consider mediation. If one party feels that the case is not suited to mediation then they must file a witness statement to explain how and why they have reached that conclusion. The Court will look at that statement when it comes to consider costs at the end of the case.
The judge also pointed out the importance of mediating cases early before costs get out of hand and the relationship between the parties deteriorates even further as a result of the mediation process:
“The engagement of a trained mediator is more likely to lead to an outcome satisfactory to both parties… It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator…”