Battle lines

Land in the UK is a finite commodity, and some land is worth fighting over: the narrow strip allowing access to a building site worth millions, for example. But what can cause just as much concern is the dispute between neighbours over where exactly a border runs between their properties. Such disputes can last for years, and emotionally they can be a nightmare.

Take the case of neighbours in rural Lancashire, whose dispute over the exact placing of a fence had gone to the High Court, which ruled in favour of Mr Grundy, a businessman. His neighbour Miss Iddon, a 72-year-old spinster, didn't accept the decision. When Mr Grundy and his contractor began moving the fence, Miss Iddon, in a rage, seized a spade and swung it at Mr Grundy, breaking his arm. She was sent to prison for 12 weeks. So, not only would it have cost her a fortune in legal fees when she lost at the High Court, and not only does she now have a criminal record, but when she is released (for good behaviour?!) she will have to go on living next door to the person she hates.

There has to be a better way of solving such cases, and indeed there is. DJ Stephen Oliver-Jones QC is so aware of such problems that he insists, on learning of a boundary dispute, that all parties and their lawyers attend his chambers, where he warns them of the expense, delay and emotion of continuing with the litigation, and forcefully urges them to have a skilled mediator help them to settle.

Of course mediation is not the universal answer '“ Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 gives a checklist '“ but it is remarkably effective, and the average settlement rate is over 70 per cent, even allowing for unwilling participants.

Mediation in action

Let's look at a couple of examples. Business neighbours had not spoken for ten years. The dispute was over a yard between two Victorian warehouses. On the low side was a motor panel beater who had traded there for many years; on the upper an architects' practice that had smartened up the property and Tarmaced in the yard. The trouble was the yard had been muddy with natural drainage. Now every time it rained the water ran down into the panel beater's workshop. He couldn't spray cars over a wet floor, and had to waste time mopping out.

Worse still, the architects had marked out parking spaces, blocking a public right of way, a fire escape and access to the workshop.

I took the parties out to the yard on a damp November afternoon, and eventually the architect agreed to repaint the parking spaces freeing up the right of way and access, and have a new drain constructed to take the water away. With a modest payment to the panel beater, the dispute of ten years was settled in a day.

The other example concerned a row of detached houses, 'little boxes on the hillside made of ticky tacky'. There was Mr Left's house and a drive, then Mr Right's service strip and house with a drive to its right, and so on up the hill.

Mr Left wanted to construct a garage over his drive with a bedroom over, but there was doubt about where exactly the border lay between his drive and the service strip. Mr Left asked Mr Right if he could construct his extension up to the edge of the service strip rather than the mid-point of the low dividing wall. Mr Right adamantly refused, but, when he was on holiday, Mr Left built the extension nevertheless.

During the mediation, I knew we were in trouble when Mr Right produced a photograph showing where he believed the boundary lay. Interestingly, there was a bedsheet draped out of the bedroom window, painted with a Union Jack and 'Welcome Home, Gary'. To be friendly, I asked 'Who's Gary?' to be told that he was a soldier killed in the first Gulf War, and Mr Left had encroached on the 'sacred' land where he had played with Gary as a child.

After fierce negotiations, Mr Left agreed to pull down the extension and rebuild it two inches narrower. That would have been a good result, except that Mr Right said that he must have been right (!) all along, so he wanted his costs. Mr Left had no money. The mediation failed, and no doubt the dispute rumbled on, with huge legal costs and destroyed relationships, but we got so close.

Litigation destroys relationships; mediation can rebuild them. Litigation is hugely expensive; the cost of mediation can be modest. Litigation can last for many years; mediation is usually over in a day. And mediation is such a powerful process that even a mediator such as myself, a mere chartered accountant, can bring warring parties together.

As Lord Justice May said in Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002: 'Try it more often.'