Neighbourhood disputes? Try mediation

Neighbour disputes can be hostile, fractious and expensive, so mediation can often appear inappropriate because destructive attitudes and intense emotions are already entrenched. But perhaps it is this perceived weakness that gives mediation a strong role: neighbour disputes are often more about the underlying issues and relationships between people than technical issues such as where a boundary is located, access rights or high hedges.

The UK introduced ADR concepts into the Civil Procedure Rules 1998 the EU Council of Ministers adopted the mediation directive 2008/52/EC in 2008, and more recently RICS worked with the UN Food & Agriculture Organization on the addition of ADR wording to the global soft law instrument Voluntary Guidelines on the Responsible Governance of Tenure.

These guidelines have been adopted by all members of the UN General Assembly, and in many cases are the first opportunity for land professionals, including surveyors, to engage with ADR and mediation principles. One of the major strengths of many ADR processes, and especially mediation, is that they can be used across borders and legislations within any legal system.

This is especially important in the land sector, where different ownership rights, tenure and identification can co-exist even in particular countries: for instance, many developing nations operate official land registration systems that run alongside customary or shared ownership systems. Indeed, some customary systems have an in-built cultural process for mediation such as the “stool” system in Ghana where tribal elders will officiate over land and neighbour disputes.

There are several different models of mediation, with the facilitative style being the most popular, as well as the most suitable for neighbour disputes. It enables a sustainable settlement to be reached by the parties, which can be structured into a legally binding signed agreement. The evaluative model of mediation is also helpful, as it allows a sometimes court-appointed expert from the relevant sector, in the role of mediator, to make suggestions for possible settlement.

One dispute in Hertfordshire, Cameron v Boggiano [2012] EWCA Civ 157, began when planners used a thick pen to mark out boundaries. The area represented was just 60cm wide, yet the legal costs ran to £400,000. In Cheltenham, Gloucestershire, meanwhile, neighbours spent 2 years fighting over a 6 square metre patch of land Charalambous v Welding [2009] EWCA Civ 1578. A recent report by the Ministry of Justice (MoJ) said that warring neighbours often use boundary disputes “as a weapon” to “bully” each other, and they are often motivated more by “jealousy and greed” than genuine disputes over boundaries.

On a much larger scale, Ethiopia and Eritrea went to war in the 1990s over their international border, which was based on an ad hoc Italian survey from the 1930s, with the result that several thousand people lost their lives. The ongoing border dispute between Pakistan, India and China on the Siachen Glacier has also caused regional tension and sporadic outbreaks of conflict for decades. The International Court of Justice has introduced ADR processes to help resolve many of these disputes.

For example, the total costs in Faidi v Elliot Corporation [2012] EWCA Civ 287 were more than £140,000: this was a dispute between neighbours about the timber flooring to one flat, which was said to cause noise that would not have been heard if underlay and a carpet had been in place. All 3 Lord Justices commended mediation in their judgments. However, neither side had even written to the other proposing mediation until shortly before the Court of Appeal hearing.

The government and the Land Registry also produce a wealth of technical guides and information. However, experts can often feel under pressure to take one side or the other in the hothouse atmosphere of a neighbour dispute, forgetting that they should be giving professional advice on the facts rather than trying to support a client.

Cases of chartered surveyors acting on spurious evidence and in an adversarial capacity are numerous. Surveyors from more structured cadastral systems in Europe have expressed their bewilderment at their UK counterparts, reporting such unprofessional, confused but perhaps understandable behaviour to RICS. The nature of the UK general boundaries system does allow a certain amount of ambiguity in boundary identification and demarcation; but where the role of the expert is misconstrued, it can and does lead to disastrous consequences, with an often chastening appearance in court and before the RICS regulatory team for the expert chartered surveyor.

But mediation can offer a valuable way for an expert chartered surveyor to reach a settlement, either through the facilitative or evaluative model, by eliminating the win-at-all-costs approach. So rather than facing the attitude that “You are my expert, I pay your wages, help me win this dispute,” the expert becomes “Our mediator and expert – we pay your wages, help us find a settlement to this dispute.”

Under the Property Boundaries (Resolution of Disputes) Bill 2016–17 some court enforcement would be brought to ADR, either as an agreed settlement or as some kind of evaluative mediation, with an expert chartered surveyor and trained mediator making technical suggestions to help reach an agreement. This is already the approach taken in several countries such as Sweden and Denmark, where licensed expert land surveyors have the legal authority to impose a solution on parties in a dispute over boundaries or other land issues, and that solution is legally registered, being recognised by the cadastral authorities.

The report should form the basis of a future agreement on a much more robust court enforcement process or even system of compulsory mediation for neighbour disputes. At the time of writing, RICS, the Law Society and the Civil Litigation Council are discussing these issues.

Mediation has a lot of potential for helping people move away from entrenched, emotional positions and towards sustainable settlements. It also offers the expert chartered  surveyor a way not only to hone their people and mediation skills, but also to draw directly on their strengths in the technical areas of practice. The future is mediated.

Related competencies include: Analysis of client requirements, Cadastre and land management, Legal/regulatory compliance