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Why there's no longer any excuse for farm disputes to end up in court

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Shake on it: Alternatives to legal action for resolving disputes include mediation, arbitration, expert determination and collaborative law practice.

Shake on it: Alternatives to legal action for resolving disputes include mediation, arbitration, expert determination and collaborative law practice.

Shake on it: Alternatives to legal action for resolving disputes include mediation, arbitration, expert determination and collaborative law practice.

One reality of life is that people will not always agree. The level of disagreement can range from all vision and no sound to court battles that can cost the price of a small farm.

Over my 40 years of professional life in the accountancy and agricultural advisory fields I have encountered as many disputes as I have had hot dinners.

The one common thread is that the disputing parties are typically related persons or neighbours, Disputes can arise from partnership bust ups, rights of way, marriage difficulties, boundary fences - not to mention 'the field'.

In my time I have seen a broad range of remedies being employed to achieve a resolution. Not every disputing party subscribes to the maxim that 'the pen is mightier than the sword'. Some have resorted to the metaphoric sword in the form of a pitch-fork, shotgun, bout of fisticuffs or even a mechanical digger.

Such remedies cannot be recommended and generally just substitute one problem with an ever bigger one.

Resolution methods

Many disputes end up in the hands of solicitors as the disputing parties see no other avenue open to them.

Most reasonable and responsible solicitors will encourage their clients to avoid the court route by employing alternative resolution approaches which are collectively described as Alternative Dispute Resolution (ADR).

In fact, since the introduction of the 2017 Mediation Act, solicitors are legally obliged to advise parties in dispute to consider mediation as a means of resolving their dispute.

Unfortunately, my experience has been that not every solicitor wholeheartedly embraces that obligation.

That said, the Law Society have been very proactive in encouraging their members to offer their clients alternative methods of dispute resolution outside of the courts system. Such methods can include;

* Mediation

* Arbitration

* Expert Determination

* Collaborative Law Practice

Mediation

Mediation is a private and confidential dispute resolution process in which an independent third party, the mediator, seeks to assist the parties in reaching a mutually acceptable settlement.

It is a voluntary and non-binding process that only becomes binding on the parties if, and when a settlement is reached.

The mediator does not decide who is right and wrong but rather, encourages and guides the parties to arrive at a settlement.

This is done in private meetings between the mediator and each party and, if appropriate, in joint meetings where the parties (or some of their representatives) attend with the mediator. The parties may select an agreed mediator who ideally is a specialist in the particular topic in dispute.

Arbitration

Arbitration is a means of dispute resolution whereby two disputing parties submit their dispute to a neutral third party, an arbitrator, for determination.

Arbitration is entirely dependent on the agreement of the parties to adopt it as a means of determining the dispute.

Frequently, disputing parties submit to arbitration as a result of an arbitration clause incorporated into some contract between the parties such as a construction contract, partnership agreement or lease agreement.

Occasionally, where a dispute arises and there is no arbitration clause incorporated into the contract or indeed no contract, the parties can nonetheless agree to submit the dispute to arbitration.

Arbitration is similar to a private court hearing in that the arbitrator's role is akin to that of a judge in that he reviews the evidence and gives a decision which is final and binding with very limited grounds for appeal to the courts.

The advantages of arbitration are that it is private, speedier than the court process, typically, but not always less costly and the chosen arbitrator will generally have expert knowledge in the matter in dispute.

Expert Determination

Expert determination is used to resolve disputes that require specialist expertise that is unlikely to be available in a court.

The parties to expert determination agree that there is a need for an evaluation by an expert in the field.

Situations where I have seen a need for expert determination have been in the case of a land lease rent review where the parties could not agree on the adjustment due under the rent review clause.

I have also seen it used in the case of a Share Farming Agreement where an issue arose in regard to the operation of the agreement. Like all ADR processes, it is entirely confidential. It is typically inexpensive and speedy but may not always be binding on the parties.

Collaborative Law Practice

Collaborative law is an alternative way of resolving family law matters, including separation and divorce. It encourages people to try to resolve their difficulties in a non-confrontational manner, with the help of collaborative lawyers, and avoid the use of court.

It is different in that it is multi-disciplinary including family consultants, lawyers, child specialists, and financial experts. It tries to resolve disputes through problem solving and is designed to keep couples out of court thereby reducing the trauma and cost of court. It is about cooperation, not confrontation.

The process is dependent on both parties making full and frank disclosure of all of their assets so that negotiations can be open and honest. If the process is successful, the parties have an agreement for which they both have a responsibility. The agreement can be drawn into a deed of separation or used as a basis for a decree of divorce.

The success rate for the collaborative process is stated to be very high. However, if either of the participants decides to discontinue the process, then the process ends and both collaborative solicitors must withdraw.

If either husband or wife decides that they wish to go to court, then neither of the collaborative solicitors involved in the collaborative process can become involved. More information can be had on the Association of Collaborative Practitioners website www.acp.ie

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