Mediation

Pursuing or defending a claim that involves complaints about the way in which a property (or properties) have been built, is likely to be expensive and time consuming.  The allegations or a Court finding against a developer can cause significant reputational damage. The flexibility mediation offers means the parties to these types of disputes are able to identify, agree and put in place solutions that are not always available to the Courts.

It is often the case that some of the most bruising litigation for individuals are over small pieces of land of relatively little value. Resolving boundary disputes between neighbours is seldom satisfactory, as the Courts themselves recognise.  A leading Judge in one neighbour dispute said that:

‘An attempt at mediation should be made at the beginning of the dispute, and certainly well before things turn nasty and become expensive…………Litigation hardens attitudes.  Costs become an additional aggravating issue’.

We can think of no better endorsement for mediation in these types of cases.

Disputes between two or more parties claiming they own a share of the same land or property, can quickly become highly emotional and draining.  If the case is taken to Court or Tribunal, the outcome is decided by a Judge, whose decision is imposed on the parties. Mediation, however, allows parties to get together and discuss their respective positions, with an impartial Mediator who is there to help guide them to a negotiated settlement.  This is an ideal scenario in which parties do not have to dwell on the facts giving rise to their dispute but can instead concentrate on solutions and an amicable settlement.

Mediation provides an effective means of resolving lease negotiations, break clause issues, dilapidation disputes and service charge matters.  Mediation allows the parties to negotiate confidentially, so that the refusal of an offer will not be held against them should the negotiations break down.  It also enables the parties to maintain good relations, which is likely to be a significant benefit for landlords and their tenants where they are contemplating an ongoing commercial relationship. 

As with boundary disputes, trespass and nuisance claims between neighbouring property owners often generate more ill feeling and unreasonable behaviour than any other form of disagreement.  In no time at all, the two sides can become entrenched and lose sight of the bigger picture.

Increasingly, Judges have made it clear that they do not consider the Courts provide the best environment for resolving these types of dispute and have positively encouraged alternative dispute resolution in the form of mediation.  

Although building disputes can be complex, this is not a reason to ignore mediation and rush into litigation.  In fact, there are numerous examples of Judges in building disputes making it clear that mediation is to be encouraged and a Trial should be regarded as a solution of last resort. Typical construction disputes that commonly go to mediation are:

Payment disputes, final account disputes, disputes about extensions of time and liquidated damages, defects disputes and disputes concerning the release of retentions.

Following the death of a family member, there can be nothing worse than an argument over the terms of the deceased’s Will, or the division of the Estate.  Such disputes, fuelled by strong emotions, can do serious damage to family relationships. With the costs of these disputes often being paid out of the Estate, everybody is at risk of losing out.  

Mediation is a well-suited means of resolving inheritance related claims.  It allows the parties to express their views without being judged, and to explore proposals and alternatives.  It avoids the confrontational and adversarial approach of Court proceedings. It is likely to be less harmful to family relationships, and, if early mediation is engaged, it is likely to cost significantly less than Court proceedings, preserving the value of the estate.

Many forms of contract provide that, in the event of a dispute between the parties to it, they agree to mediate before embarking on any other form of dispute resolution process.  This is because those drafting contracts recognise that talking about the reasons giving rise to a dispute, and working towards a mutually acceptable solution, is likely to be a better option than confrontation.

Mediation exists to manage the discussion and facilitate an agreement.  In the sphere of contract disputes, especially commercial contract disputes, early mediation enables the parties to move on quickly, restore relationships and concentrate on their primary activities rather than using up valuable time and money in litigation.

Mediation in relation to employment disputes can take place in a variety of circumstances, for example, as a result of allegations of discrimination or harassment, performance management issues, or following dismissal.  

For employment disputes, two forms of mediation exist:

Workplace mediation, where there is an ongoing relationship between the employer and the employee; and

Employment mediation, where the relationship between the employer and the employee has broken down or ended.

As mediation is private, conducted with total confidentiality; flexible in that solutions can be agreed that are not available from the Courts or Tribunals; and non-binding unless and until an agreement is reached, it provides an alternative to issuing proceedings that the parties would do well to consider.