Disputes about hedges engender deep feelings as do all kinds of boundary disputes. The location of bins as between adjoining properties may seem the kind of issue that should not divide neighbours. But these are deeply divisive issues giving vent to neighbours’ defiant defence of their castles. Huge costs are run up, often ruinously, on occasions and in some cases lead to the sale of the very property being defended. Viewed from the perspective of the dispassionate observer this is self-indulgence of the worst kind.
Attempts to curb the worst excesses include costs budgeting in the introduction of which the author played a part. The parties’ solicitors are required to show their clients a statement of the estimated costs of the proceedings and exchange such estimates with the other side. This has had little effect on stemming the tide of such tragi-comic cases.
In such cases mediation would assist to bring the parties together but would it work? In an article published in June 2019 Andrew McWhirter of the law firm Brodies argues persuasively that “choice of when, where and how to mediate is critical in achieving the right mentality to achieve a compromise.” Sadly in hedge and other boundary related disputes such common sense left the parties long before they consulted lawyers.
If being confronted with statements of ruinous costs does not pour cold water on disputes over what is very often a few centimetres of land then bringing the parties together at an early stage may do the trick.
In this respect the 2015 proposal by Sir Michael Briggs (as he then was) for ADR to be fully integrated into the court rules may serve to overcome what is seen as the equally divisive issue of mandatory mediation. Once fully integrated objections about whether to make mediation, for example, compulsory become irrelevant.
The consultation paper published in May 2019 by Margaret Mitchell MSP for a Mediation (Scotland) Bill argues that there should be a court initiated Mediation preceded by a preliminary mandatory process involving a statutory duty mediator. She rightly observes that infrastructure is key to this in terms of having enough mediators but also, she says, in having the process supported by a Cloud based platform to enable parties to engage with the process despite the great distances which can often be an issue in Scotland and of course to enable the volume of such mediation activity to take place. The consultation closes on 20 August 2019.
This consultation is an important initiative for all citizens coming to the courts in any part of the United Kingdom. In my 30 years of experience as a commercial litigator I found that the parties fully engage in the fight. Almost the only thing that brought home to parties the great risks of litigating was meeting. Usually on the first day of the trial when face to face they once again eyeballed each other. In that meeting there would be a confrontation not so much of each other but of themselves.
This is why Margaret Mitchell’s idea of an an early appraisal about whether mediation would work is so important. An early meeting concentrates parties’ minds, lawyers’ preparations and focuses all sides on what the dispute is really about.
Fear of failure should not deter parties or their lawyers from engaging in this process. Indeed once mandatory there will be no avoiding the issues or themselves. As Michael Briggs perceptively points out, even a failed mediation may sow the seeds of a later resolution and advance each other’s awareness of their own weaknesses.
Such an innovation needs mediators, administrative support and the right technology to enable the system to work. It has to be worth trying in cases such as hedge disputes. In other claim types too, with clinical negligence claims the NHS is successfully settling more and more cases by requiring mediation in an ever increasing number of the 15,000 notifications of clinical negligence claims it receives every year. NHS Resolution say they wish to increase further the number of mediations and change the culture of lawyers. To do so they will need to integrate mediation as a process and nothing can achieve this better or more easily than a Cloud based process that requires lawyers to regard mediation as part of the process from the pre-action stage.
For lawyers such initiatives are opportunity to end their cases sooner perhaps but also run more cases. Technology is key to this process which is as much about offering fresh solutions to clients as it is about minimising overheads and maximising profit margins.