Boundary disputes, coronavirus and remote mediation
Boundary disputes on the increase
One of the consequences of the coronavirus pandemic is that people are spending a lot more time in their gardens. But while this means that our herbaceous borders have never looked better, the downside is that neighbourly relations can become strained. In some cases tensions spill over into a full blown dispute, with both sides calling upon solicitors.
Neighbour disputes and boundary disputes are, in our experience, always best avoided if at all possible. It isn’t pleasant living in close proximity to someone you are on bad terms with, especially if there is only a thin wooden fence separating you. Boundary disputes can also be expensive. Legal costs quickly escalate and if court proceedings are commenced then the parties will be on collision course for a contested trial, unless an out of court solution can be found.
The risks of a costs order
Trials are the single most expensive aspect of the litigation process. They usually end with the judge making a ‘costs order’ specifying which party should pay all the legal costs incurred during the case. The most common costs order is that the loser pays the winner’s costs. And although this rarely means the winner will recover all their costs, such an order can be a body blow for the loser.
While it might be advisable to give boundary disputes a wide berth, they are sometimes unavoidable. So what are your options if you find yourself unwillingly drawn into a dispute with your neighbour?
Every dispute is different and a good solicitor will be able to identify the most suitable steps that are open to you. Settlement offers are often a good tactic, as are informal on-site meetings. When a dispute becomes more protracted then a mediation can be a good way of drawing matters to a swift conclusion at a fraction of the price of a contested trial. Judges encourage parties involved in a dispute to use mediation, along with other forms of Alternative Dispute Resolution, and can penalise those who are unwilling to embrace it by refusing to award costs – even if they win.*
Mediation remains an option during the coronavirus lockdown. Lawyers have embraced remote mediation using video conferencing. Online platforms are available which allow the parties, their solicitors, barristers and the mediator to each be in a separate physical location, but with each having their own online “room”. This allows everyone to engage in the mediation process in the usual way with the mediator going from one online room to the other in order to facilitate settlement.
We have had some very positive results from remote mediations and have found the process to be as effective as “face to face” mediation. A further benefit of remote mediation is a potential saving on the fees as the solicitors, barristers and mediator do not need to travel to the mediation.
While the courts have not imposed a requirement for parties to mediate in all cases across the board, mediation can sometimes be expressly ordered by a judge The parties can be ordered to consider settling the case by ADR as part of the initial directions once a claim is issued at Court. The day is probably coming when mediation will be mandatory in all cases.
How we can help
If you are involved in a boundary dispute and are looking for experienced solicitors to help you then call our legal helpline for a free case assessment. Alternatively, you can email brief details to us at [email protected]
*One of the latest cases on this issue DSN v Blackpool Football Club Ltd  can be found on Bailli https://www.bailii.org/ It relates to a successful claim in relation to historic sexual abuse. The Judge at the costs hearing stated, “No defence, however strong, by itself justifies a failure to engage in alternative dispute resolution”. The Courts very rarely accept that any party has a reasonable excuse not to mediate and, as highlighted above, the strength of any party’s case is not a good reason to refuse to mediate.