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Mediation update: reminders from the courts and the new protocol

The courts have recently taken the opportunity to remind parties about some of the things mediation may be able to do for their case. Mediation also now gets a specific mention in the new Construction and Engineering Protocol.

Here’s what has been happening.

Judges can only apply the law

In Bramwell and others v Robinson, a right of way dispute between neighbours, HHJ Behrens gave the parties a stark reminder that judges can only apply the law.

There, despite a number of attempts at mediation, regrettably, HHJ Behrens said, none had succeeded. Still, he said:

“…as with many such disputes it would have been far better if it could have been resolved amicably or with the assistance of an experienced mediator.”

Therefore, it fell to the court to resolve the dispute and to apply the strict rules of the law of easements. As the judge emphasised, this “may give results which do not satisfy either side”.

However, parties at a mediation can agree solutions that courts cannot order.

The most famous reminder of this feature of mediation comes from Jackson LJ in Faidi v Elliot Corporation, a dispute between neighbours about the timber flooring to one flat which was said to cause noise that would not be heard if there was underlay and a carpet installed instead. There, Jackson LJ said a moderate degree of carpeting might have reduced noise penetrating into the neighbouring flat but still enabled enjoyment of the timber floor and this was:

“…precisely the sort of outcome which a skilled mediator could achieve, but which the court will not impose.”

The wider impact of litigating

In Bramwell and others v Robinson, HHJ Behrens also reminded parties about the wider impact of litigating. He referred back to the Court of Appeal’s decision in Oliver v Symons, and quoted Elias LJ’s words that it was a case “crying out for mediation”. He also referred to what Ward LJ said about the emotional and financial impact of litigating a neighbour dispute:

“All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose.”

Oliver v Symons is one of many examples I have discussed before of the courts encouraging neighbours to mediate by plainly setting out what may happen if they do not.

It is worth revisiting Faidi v Elliott Corporation for this reminder of another example from Ward LJ:

“Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skilfully applied by a trained mediator. Give and take is often better than all or nothing.”

More on the wider impact of litigating

In Simpson v Simpson, a case in which family members made various claims against each other after a family business ended, the Court of Appeal concluded by underlining the wider impact of litigating.

There the defendant, the sole proprietor of the business who acted in person at trial, appealed the decision of HHJ Butler. In late 2014, in relation to her claim that her parents had retained stock and thereby wrongfully interfered with goods, he found that she had proved a tort and suffered a probable loss, but that she was only entitled to nominal damages of £500 because she had failed to discharge the burden of proving the amount of damage.

In doing so, HHJ Butler expressed regret because he had:

“…little doubt that if [the defendant] had been legally represented there would have been a professional stock inventory and/or independent valuation report which might have provided the evidential basis for a substantial award.”

On appeal, in late 2016, the defendant successfully argued that HHJ Butler ought to have adjourned the issue of damages for a further hearing. This was because, at an early 2014 case management hearing (where the defendant had also acted in person), it was apparent that the defendant was claiming for interference with the stock and loss of stock value. However, District Judge Rouine had ordered that no party had permission to call or rely upon expert evidence, “none being necessary”.

The Court of Appeal set aside the damages award and remitted the case to HHJ Butler for determination. It said that if HHJ Butler had considered the implications of District Judge Rouine’s order, which shaped the evidence before him on the question of the stock value, he may well have decided it would be wrong to conclude the hearing on the evidence as it was.

The case is procedurally interesting, but it also serves as a reminder that there may be another way to resolve matters as Black LJ (with whom the other judges agreed), concluded her decision with this:

“I would end by reiterating what I know will have been said already to the parties. The proceedings must have taken a terrible toll on the whole family. It is all too easy to lose sight of the fact that it is possible to bring them to an end by reaching an agreement. A professional mediator may be able to help with this if the process seems too difficult to embark upon alone. It would surely be worth the attempt, in order to save another round of divisive and hurtful litigation.”

Simpson v Simpson can now be added to the ever growing line of Court of Appeal cases encouraging and promoting mediation.

Mediation in construction disputes

When it comes to recent reminders about mediation, construction cases have not been left out.

For example, in Scott v E.A.R. Sheppard Consulting Civil and Structural Engineers Ltd, a claim for professional negligence against a structural engineer, Fraser J stated early in his decision that:

“…a case of this nature, in my judgment, cries out for resolution by mediation.”

It is also notable that paragraph 9.3 of the new Construction and Engineering Pre-Action Protocol says that the parties’ without prejudice meeting may:

“…itself take the form of an ADR process, such as mediation.”

Although parties often agree to mediate pre-action anyway, paragraph 9.3 serves as a useful reminder that this can be done and the parties are still complying with the protocol.

Keating Chambers Elizabeth Repper

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