Mediating property and land disputes

Whether the dispute involves commercial or business partners, neighbours or separating couples, the need to reach a swift resolution is exactly the same.

Lawyers are all too aware that such disputes carry high litigation risks at trial and are often complicated by an array of concepts and doctrines to consider which do not always result in decisions in case law that seem logical or fair.

Why mediate?

There are therefore many reasons to mediate such disputes:

• reduction in risk
• lower legal costs
• less delay
• freedom to make bespoke decision outside of the narrow scope of what a court can order
• flexibility to deal with other issues simultaneously.

Mediation also fulfils the court’s requirement to attempt alternative dispute resolution. Failure to at least try it could lead to adverse legal cost consequences at trial.

How would the mediation work?

The journey starts by uncovering the issues that need to be resolved and identifying the disclosure required from each party to explore those issues, which is likely to include correspondence between them, conveyancing documents, a mechanism for valuing the property or land, and proof of payment for any work undertaken on the property. Once all the information is exchanged, sessions can focus on options for settlement and proposals from each party.

Based on the complexity of the law, however, and the cost risk, (these cases at trial are generally win or lose with the losing party having to pay all or a proportion of the winning party’s costs), integrated (lawyer inclusive) mediation is particularly effective and likely to be preferred by parties over the standard model above. Under this model, the parties can each benefit from the advice and support of their own legal team as well as the assistance of the mediator. This can be especially important when the legal position is not always obvious and the emotional toll on the individual is high. The sessions could follow the same format as above, but equally the lawyers may be able to assist in dealing with the disclosure process ahead of a half day or a full day’s mediation at which there is impetus, time and expertise to reach an agreement there and then rather than face ongoing time delays, further cost and potentially a stark outcome.

Such mediation sessions can be organised so that expert assistance is on tap, with either an agreed advisor, for example a tax advisor, available to assist the parties, or for each to have their own accountancy input. Advice from an IFA or mortgage advisor, so that all options can be explored and untenable options discounted, could be invaluable.

For more information or to begin a referral please contact any of Weightmans’ mediators who will be happy to help.