10 Types of Dispute That Are Particularly Suited to Mediation

Some disputes need to be decided by a judge. But there are others where deciding the legal issue may not actually solve the underlying problem. Here are ten types of dispute which are particularly suited to mediation.

People sometimes ask what sorts of cases are suitable for mediation. The tempting answer, particularly if you happen to be a mediator, is “almost anything”.

There is some truth in that, but it is probably too easy an answer. There are disputes which need to be decided. If somebody requires an urgent injunction, there is not much point spending three weeks trying to persuade the other side to attend a mediation. There are cases involving points of law where what the parties actually need is an authoritative answer. And occasionally there is simply no middle ground.

But there are also cases where, as a litigator, you read the papers and immediately think: surely somebody ought to try to settle this.

What interests me is that they are not necessarily the easiest cases. In fact some of them are among the most bitterly contested. What they tend to have in common is that deciding the legal issue will not necessarily solve the underlying problem.

Here are ten which strike me as particularly suitable.

1. Neighbours, boundaries, gates and rights of way

These probably deserve a category of their own.

There is something about property boundaries which can make otherwise perfectly rational people behave in ways they would never contemplate in an ordinary commercial transaction.

If somebody offered to sell you a strip of fairly useless garden for £5,000, you might sensibly decide that you didn't need it.

If your neighbour moves the fence six inches and you believe that same strip of garden already belongs to you, you may apparently be prepared to spend £50,000 proving it.

I don't say that critically. Our homes are personal. A disputed gate or parking space is not something you encounter once a month in a management meeting. It can annoy you every morning when you open the curtains.

The difficulty is that litigation can settle the boundary without settling the neighbours.

A judge can decide precisely where the legal boundary lies or whether a right of way exists. But the parties may then have to live next door to each other for another twenty years.

At mediation you can talk about things which might never appear in a judgment: moving the gate, slightly altering the route, planting screening, agreeing who maintains what, or even one party paying the other for a small piece of land.

There is a reason why so many judges have expressed despair about boundary litigation.

2. Probate and inheritance disputes

I have always thought these are particularly suitable for mediation because the pleaded case and the real dispute can be miles apart.

On paper it may be a dispute about the validity of a will or reasonable financial provision from an estate.

After half an hour talking to the family, it becomes apparent that it is also about who looked after Dad, why Mum gave one child money for a house, what was supposedly promised at Christmas in 1998 and why one sibling has always thought another was the favourite.

A trial can resolve the legal questions. It may do absolutely nothing about the rest.

There is also a rather brutal economic reality. Every pound spent litigating over an estate is potentially a pound which is no longer available for anybody to inherit.

It is quite possible to win a probate case and discover that a sizeable part of the asset everyone was fighting over has disappeared in costs.

Mediation cannot make a dysfunctional family functional. But it can allow the family history to be discussed rather than pretending the dispute began on the date of the will.

3. Shareholder and partnership disputes

These have a different problem.

The parties may be destroying the thing they are fighting about.

Two people start a company together. It succeeds. Their relationship deteriorates. One thinks the other is taking too much money out; the other thinks they are doing all the work. Communications become hostile. Lawyers are instructed.

Meanwhile employees are wondering what is happening, customers notice the disruption and the value of the business starts falling.

There is something rather tragic about spending hundreds of thousands of pounds establishing who was responsible for destroying a company which was worth substantially more before the litigation began.

These cases can also have an enormous number of possible settlements. One buys the other out. They sell the whole company. Different assets or customers are divided. Payments are made over time. Management changes. One leaves but remains a consultant.

That flexibility is difficult to reproduce at trial.

4. Commercial disputes where everybody secretly wants to carry on doing business

This happens more often than one might expect.

A supplier has delivered late. The customer withholds payment. Each side blames the other and eventually somebody issues proceedings.

Once proceedings have started there is a tendency to behave as though the commercial relationship must be dead.

But sometimes it isn't.

Perhaps the supplier is actually very good and there was one disastrous order. Perhaps the customer represents 20% of the supplier's turnover. Perhaps both businesses would quite like to continue dealing with each other if only they could get past this particular argument.

A judgment can determine the outstanding invoice.

A settlement can deal with the invoice and next year's business.

That can be far more valuable.

5. Construction disputes

Anyone who has encountered construction litigation knows how quickly it can expand.

A relatively straightforward disagreement about defective work suddenly involves an architect, a structural engineer, a quantity surveyor and several lever-arch files of photographs and invoices.

There may be genuine technical questions which need answering. But there may also be an obvious practical solution.

Redo this part. Pay something towards that part. Let another contractor finish the job. Reduce the final account. Agree a programme for remedial works.

One useful feature of mediation is that the technical people can be involved. There is no rule saying that everything has to be filtered through lawyers.

Indeed, there are construction mediations where the most productive conversation of the day may be between two experts standing over a plan.

6. Professional negligence

These are interesting because they can become surprisingly personal.

A client who trusted an accountant, solicitor, surveyor or other professional may feel badly let down.

The professional, meanwhile, may regard the allegation as an attack on years of experience and competence.

Neither reaction is particularly conducive to an unemotional exchange of Part 36 offers.

There are often difficult questions of causation as well. Even if something went wrong, what loss did it actually cause? What would have happened otherwise?

Those uncertainties can make mediation useful.

The parties can negotiate commercially without requiring the professional to stand up and announce that they were negligent or the claimant to concede that nothing went wrong.

7. Employment and workplace disputes

Money matters in employment disputes, but it is often not the only thing that matters.

What will the reference say?

What will colleagues be told?

Will there be an apology?

Can the departure be described in an agreed way?

What happens to confidentiality?

Those can be enormously important questions to somebody whose career is involved.

A tribunal is necessarily concerned with legal causes of action and remedies. The parties themselves can construct something much broader.

And, of course, sometimes the employment relationship has not actually ended. If people are expected to return to the same workplace after the dispute, finding a way for them to work together may be more useful than establishing who won an argument six months earlier.

8. Landlord and tenant disputes

I wouldn't put every possession case into mediation simply because it involves a landlord and tenant. Sometimes possession is the only realistic outcome.

But there are plenty of property disputes where there is room for a practical deal.

Commercial leases are an obvious example. Rent, repairs, dilapidations, service charges and renewal terms can all produce expensive litigation while both parties still have a common interest in the premises remaining occupied and rent continuing to be paid.

Even in residential cases, the sensible solution may involve works being carried out, arrears being repaid over time or possession taking place on an agreed date.

The law may provide the framework. The parties can often fill in the details rather better themselves.

9. Cohabitation and family property disputes

These are another category where the legal dispute often comes wrapped in years of personal history.

Who paid the deposit? Was the money from the parents a gift or a loan? What did they agree when the house was bought? Who paid the mortgage after the relationship broke down?

Those questions may ultimately require determination.

But there are usually practical problems which need answering as well. Who remains in the house until sale? When is it marketed? Who chooses the agent? What happens if one person wants to buy the other out? Who pays the mortgage meanwhile? What happens to the contents?

A judgment can determine beneficial ownership.

A good settlement can provide an entire route out of the relationship.

10. The case where somebody really wants an apology

This isn't technically a type of litigation, but I think it deserves inclusion.

Lawyers can be rather suspicious of apologies.

We deal in things which can be quantified: damages, interest and costs. An apology has no obvious monetary value and can create nervousness about admissions of liability.

But I have seen disputes where it becomes obvious that somebody simply wants the other side to acknowledge that something went wrong.

That doesn't necessarily mean saying, “Everything was our fault and we accept legal liability.”

Sometimes it is simply:

“We are sorry this happened.”

Or:

“We accept that we could have handled this better.”

It is remarkable how difficult those words can become once solicitors are corresponding.

And occasionally it is remarkable how much easier the negotiation becomes once somebody says them.

So what makes a case suitable for mediation?

Looking back over this list, I don't think it is really the subject matter.

It is the mismatch between the legal dispute and the actual problem.

If all that is required is an answer to a legal question, litigation may be perfectly efficient.

But if the parties need to decide how they will live next door to one another, divide a business, preserve a commercial relationship, unravel a family property arrangement or bring an unhappy chapter of their lives to an end, a judgment may answer only part of the problem.

That is when mediation becomes particularly interesting.

It gives the parties permission to stop asking, for a few hours, “Who is going to win?”

and ask instead:

“What would actually sort this out?”

Sometimes the answer is still: nothing short of a trial.

But rather more often than people might expect, it isn't.

If you are facing a dispute of any of these kinds, you can start a mediation here — and for the companion pieces in this series, read 10 Cases That Show Why Litigation Should Sometimes Be the Last Resort and 10 Warning Signs That It May Be Time to Mediate.

Peter Causton is a barrister, civil and commercial mediator and Director of ProMediate (UK) Limited.