Courts expected to encourage (and require) mediation in farming succession disputes

Our Farms, Estates and Rural Land team frequently advise on complicated and emotionally charged disputes between family members whose relationships have sadly broken down. In situations such as this, it is common and understandable for clients to want to stand their ground and robustly bring or defend claims through to a trial at court. However, given the time, stress, costs and risks involved in any court proceedings, we encourage clients to give serious thought to mediation.

Given an upcoming change to the courts' rules, we expect it is going to become increasingly common that the courts also encourage - and even require - parties to attend mediation in farming disputes.

What is mediation?

Mediation is a form of alternative dispute resolution (ADR) which involves the parties seeking to negotiate a settlement outside of court. At a mediation, the parties will usually be in different rooms (either physically in the same building or remotely via video conference) and an independent third party mediator will move between rooms to act as a broker and try to facilitate a settlement.

Mediations usually last for one day and are held on what is known as a 'without prejudice' basis, which means that what is discussed at the mediation cannot be used in evidence in any court proceedings.  The purpose of this is to encourage the parties to be more open on the issues in trying to find a resolution.

Mediations can be held at any point in a dispute, whether that is before or after court proceedings are started (and we have seen examples of mediations taking place just weeks before the trial is due to commence).

Shift in the courts' approach to mediation

The courts have long been keen to encourage parties to attempt mediation and other forms of ADR - and can impose costs sanctions on parties who unreasonably refuse to consider this.

However, in the recent 2023 case of James Churchill v Methyr Tydfil Borough Council, it was held that, not only do the courts have the power to encourage parties to mediate and impose sanctions on those who unreasonably refuse to do so, but they also have the power to order parties to mediate. This goes one step further than simply encouraging parties to mediate, as if the courts order the parties to do so and they refuse then in theory that party could be held in contempt of court for breaching a court order.

This shift in the courts' approach will very shortly be enshrined in the Civil Procedure Rules (CPR), which are the rules that govern how civil court proceedings take place. From 1 October 2024, the CPR will state that in every case, the courts "must consider whether to order or encourage" the parties to attend mediation or another form of ADR. It is therefore very likely that we will increasingly see the courts ordering the parties to attend mediation and actively building this into the timetable of steps the parties must take in the lead up to a trial.

What does this mean for farming disputes?

In our experience, mediations can very often unlock farming succession disputes and lead to a settlement that provides clients with a clean break and allows them to move on with their lives without the need to go to trial. This is often true even in what appear to be the most intractable and contentious disputes.

We appreciate that in the context of farming disputes, which very often involve disagreements between family members, the idea of attending a mediation and seeking to settle differences is not always something that clients are open to considering. However, given the courts' shift in approach and increasing willingness to require parties to mediate, we expect to see more pressure applied to clients - both by the other parties and the courts - to engage in mediation.

This shift in the courts' approach is a positive development, as it is almost always better for our clients to resolve disputes outside of court. Whilst agreeing a settlement of a dispute of course involves an element of compromise, it also means that clients can avoid the very significant costs and risks which are inherent in all forms of litigation. However, on the other hand, we are conscious that parties who are forced to mediate by the courts might attend simply to 'tick a box' without making any real attempts to settle. Whilst that is a risk, there is merit in at least getting the parties to a mediation - as once there, even the most reluctant and sceptical parties have been known to engage constructively in the process.

The timing of when to mediate is something that parties need to consider very carefully. A mediation should be considered at the earliest possible opportunity, but the parties do need to have enough information available to weigh up the merits of the dispute and make an informed decision on settlement. If they don't feel they have enough then they are unlikely to settle.  Gathering the evidence takes time and cost but in the long run can lead to a successful mediation that avoids the need to progress court proceedings. The focus should be on what evidence you really need to get to a position where you can make a judgment call on a settlement. 

Our Farms, Estates and Rural Land team frequently advise clients looking to bring or defend a broad range of farming-related disputes, and we have significant experience in guiding these disputes to a successful conclusion both at trial and through settlement at mediation. If you need any further advice from our specialist lawyers, please do not hesitate to get in touch.