The matter appears to be ongoing. Not enough is known over this particular dispute to give an informed comment but what I can say, with over 30 years' experience in dispute resolution, is that disputes between neighbours can be some of the most bitter and destructive disputes encountered. It has to be recognised that some of these disputes can be intractable and sometimes resolution is brought about by one or other of the parties moving.
Whatever the facts, this case serves to illustrate that litigation is not the best way of resolving such matters. Yes it may be necessary in some cases to consider litigation but it is suggested that this should be the last resort. My experience is that mediation provides a solution which allows for a better opportunity of resolution of such disputes. Whilst on the face of it the dispute may be said to be about a boundary this will not be the only matter in dispute and what will certainly be a critical issue is the relationships between neighbours going forward. The Courts are not able to deal with anything but the legal issues leaving a dispute still brewing even where a determination has been made on the boundary issue which may simply be the tip of the iceberg. Mediation allows all issues to be considered.
What is mediation? Quite simply put it is a process where a third party is brought in to assist parties in a negotiation process in a confidential and safe setting. The process can be tailored to meet the requirements of the parties. Where parties cannot discuss matters directly, good lawyers may be able to broker a resolution but sometimes that is not possible and, indeed, it may be helpful to have the parties directly involved. What the process is doing is to allow communication to recommence in as constructive a manner as possible. If no resolution is arrived at little is lost and if resolution is arrived at it may result in a resolution of the headline matter and an understanding of how the neighbours might interact without friction going forward. What mediation is not is an easy process. Discussions between the parties may be heated but in such a setting they may be the key to arriving at a resolution.
I trained as a mediator around fifteen years ago and after completing training worked for a few years as a volunteer conducting mediations in disputes between neighbours. These disputes were often central to the existence of the parties. In a great many cases the opportunity for the parties to be given a voice and an opportunity to listen really did bring about an improvement. A solicitor providing advice on dispute resolution in Scotland is expected, under their professional guidance, to advise on all methods of dispute resolution and to explain the advantages and disadvantages to clients so in theory mediation ought to be considered as an option in every neighbourhood dispute although I think this does not always happen.
What of the case reported in the Times? I do not know whether or not mediation had been considered or used in that case and can only comment more generally to the effect that consideration of mediation early in the life of a neighbour dispute is more likely to be productive of resolution and at a much less cost than prolonged litigation.
If you interested in finding out more about mediation please contact David Hossack, whose details can be found here.
