Mark Whittell offers a novel solution to the stresses and strains of the boundary disputes.
Yes the file we all dread – the boundary dispute
- The client is acting on a point of principle
- The client will be irrational and not act commercially
- The costs will be totally disproportionate
- The reality is one party will have to move for them to be happy
- No matter how well you conduct yourself the Court is going to be highly critical of the fact you have not settled and the costs you have incurred
- And it will hang around in your filing cabinet for ages as it will not have any priority
It all leads to a worried and dissatisfied client and a frustrated solicitor
You will be litigating usually over a small strip/piece of land which will have a negligible value but because of the complexity of the arguments over title and adverse possession it will creep into multi-track and after the neighbours and the previous owners have all had their say you will be looking at a 3 day trial.
Court proceedings will be expensive and protracted. It will probably give the client 2 years of sleepless nights and it would not be unusual for the parties to spend £50,000, plus another £10,000 on VAT which they cannot recover.
Then there is the nightmare of an issue based costs order because quite often in the “tit for tat” exchange that follows into the pleadings the parties win some and lose some, and the reality is even if they have achieved a pyrrhic victory they end up paying most of their own costs.
After all the cost and anguish your client has to suffer the stresses and strains of a 3 day trial, the ordeal of being cross examined by a barrister for an afternoon, all to find the Judge takes a strict legal interpretation and makes a ruling no-one wants!
It is not rocket science but a mediation can provide a quick and cheap practical solution in a relatively short period.
The mediator can ask relevant questions to bring home the reality of the situation which do not enter a judge’s mind such as:
- Do you use this strip of land?
- Will it add to the value of your house?
- Will it detract from the value of your house?
- Will a prospective purchaser be bothered?
- Is it really important to you?
- Is there something they could offer you in exchange?
He can go into the real reason behind the dispute and find a solution
- One party can look into their living room
- The unsightly mess they have to look out over
- The neighbour blocked his planning application
- A perceived land grab
- The overhanging gutter leaking
- The need to fit in an access road
- The nuisance of lighting a fire as soon as you put out the washing
A judge can only determine the legal answer as to where the boundary lies and it might not suit either party. The mediator, on the other hand, can think laterally and, for example, suggest:
- Relocating the boundary to suit the parties real needs
- A land swap
- A right of way over a different and less contentious area of land
- Moving the boundary by a matter of yards to accommodate the real reason for the litigation
- Making one party erect a fence to give the other side the privacy they require
If the parties are reluctant to settle rest assured:
- the mediator will stress the costs they are going to have to pay you,
- there will be a full and frank discussion about the risks of litigation
- the mediator will bluntly ask them how they will pay the £100,000 bill if they lose at trial.
- both parties will be asked if this small piece of land is really worth it
And although you will have done the same, when a neutral third party asks the same question in a mediation it will have more effect.
First, make the offer of mediation at an early stage and preferably before proceedings have been issued.
I find the costs can often become a block to any settlement in a situation where they are already in a stubborn mood. Both parties become entrenched because of needing to win to recover their costs. Most parties have not got the savings to fund an action at a cost of say £50,000 and run the risk of paying another £40,000 if they lose. Then they don’t know how to get out of the mess they have created.
Secondly, conduct at least part of the mediation on site.
The mediator can understand the physical proximity of the issues, and so can the solicitors, rather than looking at a scale plan. It enables the mediator to point out exactly what a small area is in dispute and how any changes to the boundary or area would affect the parties as he moots potential solutions.
Also, consider our mediation package tailored to reflect the length of time these very personal issues will take to resolve but also the value of the land in dispute.
North West Mediation Solutions
This article first appeared in the 30 November 2018 edition of New Law Journal and is reproduced with their permission.