Aspects of Land | Spring/Summer 2018

9 / 36

9 Spring / Summer 2018 Aspects of Land
in some circumstances it is possible to
challenge it). Therefore great care should
be taken in choosing the expert and
defining the remit.
In ENE, an independent third party
(often a retired High Court judge) is
appointed to look at the relevant facts,
technical matters and law of
a particular issue and then to
give their opinion. This opinion
is usually not legally binding,
but it often helps the parties
to arrive at a resolution. ENE
is worthwhile where there are
opposing views about the law, or
the factual or expert evidence. It
can help to clarify the important
issues and it can be quick. On
the other hand, it can be expensive, a
resolution might not be reached and
the evaluator’s opinion may encourage
intransigence.
And so we come to mediation.
Potentially suitable for any case (unless
a binding decision is required in order to
set a precedent), this is a process whereby
the parties meet privately and attempt to
settle their dispute with the assistance of
a neutral mediator, who helps to identify
issues and explore options for resolution.
The mediator does not determine the
outcome; it is up to the parties how – or
whether – they resolve the issue. The
process is therefore particularly helpful
when positions have become entrenched
and emotions are running high. In my
Ihave been involved in enough
litigation to know that it can be
a ludicrous process, protracted,
prescriptive and very expensive.
Happily, there are alternatives.
There are four main methods
for settling disputes, collectively
known as Alternative Dispute Resolution
(ADR). These are: arbitration, expert
determination, early neutral evaluation
(ENE) and mediation. But what are the
merits of each?
Arbitration requires an independent
arbitrator to hear evidence and arguments
from all sides before reaching a decision
that is binding for all parties. It is close to
litigation, with two principal differences:
the ability to appeal is extremely limited;
and the hearing is held in private. The
arbitrator’s decision is as binding as a
legal judgment or order.
The argument in favour of arbitration
has always been that it is quicker and
cheaper than litigation, but in my
experience this is not so (although with
court fees set to increase significantly, the
cost difference may swing in arbitration’s
favour). It is also narrow and rigid, as the
arbitrator can only determine the issue in
question, with no flexibility to consider
other factors.
Expert determination is when you put
the issue before an expert in that area. It
works well when the parties can appoint
an expert they both trust, or agree on
the qualifications and experience he or
she must have. It is particularly suited
to disputes that rest on professional
opinion, such as how a document should
be interpreted. It is not possible to appeal
against an expert determination (although
NEW PRESIDENT AT NFU
In February, Minette Batters was
elected as the new President of
the National Farmers’ Union (NFU).
Batters, who was previously Deputy
President, is the first woman to hold
the office in the organisation’s 110-
year history. She runs a beef, sheep
and arable farm in Wiltshire and has
diversified into weddings, events and
horse livery. She has been an NFU
member from the grassroots up.
experience, mediation provides the
best chance of preserving long-term
relationships between parties. If a dispute
involves several parties, mediation is
a quicker and more cost-effective way
of settling or narrowing issues than
litigation.
Mediation allows far greater creativity
and flexibility than any other form of
ADR: parties can explore any issues they
wish and reach an agreement that covers
matters that a court could not order.
Following a session where each side
hears the other’s position, the mediator
explores the issues and potential solutions
in private sessions with each party. The
mediator then facilitates negotiations
between the parties, often via shuttle
diplomacy.
Even if a settlement is not reached, in
most cases the parties will have gained
something from the process. And unlike
litigation, where
there can only ever
be a winner and a
loser, mediation
allows parties to
remain in control
of the case, as a
settlement is not
imposed.
Mediators do
not need to be an
expert in a specific field – much more
important is their talent for interceding
between parties. There is a surprisingly
small number of truly successful ones: it
is estimated that 90% of cases are settled
by just 10% of mediators. A successful
mediator will vary their modus operandi
according to the parties involved. This
bespoke approach is crucial to the success
of the process.
Each form of ADR has its benefits
and its suitability should be assessed
according to circumstances. But in my
opinion, mediation is the one to aim for.
n If you are looking for clarification on a
legal issue, contact Clive Beer, London,
020 7877 4724,
$25,404
was the average value of UK farmland in US$ per hectare in 2016. This
was up from US$20,005 in 2008 and US$7,283 in 2002. Although UK
farmland is the highest priced farmland globally, its growth in value is
tenth in Savills index of 15 countries. Romania has seen the greatest
leap in value over the last 14 years, starting at US$262 in 2002 it is
now averaging US$6,372. SOURCE: SAVILLS SPOTLIGHT GLOBAL FARMLAND INDEX
ALTERNATIVES TO
COURT BATTLES
“In my experience,
mediation provides
the best chance of
preserving long-
term relationships
between parties”
CLIVE BEER
HEAD OF PROFESSIONAL SERVICES
Viewpoint
GREG BLATCHFORD / ALAMY, SHUTTERSTOCK, iSTOCK