Mediation of Construction Disputes by David Richbell
Neighbour Disputes by Kevin Kennedy
PUBLISHED BY THE LAW SOCIETY
Anyone involved in disputes between adjoining owners appreciates that these can be the most difficult, protracted and often disproportionately costly disputes that land on our desk. Until one reads Kevin Kennedy’s excellent book most practitioners wouldn’t appreciate quite how many situations involve neighbourly relations and some it is probably high time we had clear and practical guidance on managing these disputes.
He sees the lawyers role as a delicate balance between protecting the client’s rights and at the same time trying to make sure that it doesn’t get out of hand bringing to the fore the age old adage that perhaps lawyers should less assume the role of hired guns and more the role of healers achieving a balancing act between perhaps an unreasonable client, perhaps a belligerent neighbour and in any event a highly emotionally charged situation. But that doesn’t detract in any way from Mr Kennedy’s treatment of the rights and obligations of one neighbouring owner to the other and how to go about the niceties of the process of pursuing or protecting those rights and obligations. The book stars off with a pithy chapter summarising what boundary disputes are all about. ‘The starting position for virtually all boundary disputes is a client with a problem’ and he carries on throughout the book in the same user friendly style. It sets out the sources of information about boundaries and then indulges us in a merry romp of differing types of dispute.
Anyone building extensions or garden walls will probably have had to look at party walls and the 1996 Act. As with all subsequent chapters it sets out the problem, the rights of access and support and possible offences, and how to deal with appointing surveyors, enforcing access, and compensation. You then have an entire chapter devoted to securing access to neighbouring land, not that this often gets legal. Niggling issues arise over scaffolding, painting and repairing buildings can be part and parcel of a wider series of problems.
There’s a good section on the dreaded adverse possession with plenty of references to the case law. Easements and Covenants and the cause celebres of property disputes and the chapters were immediately pressed into use over prescriptive rights in an ongoing farming dispute, and so this review has indeed had some very practical benefit! Nec vi, Nec clam, Nec precario I shall quote with authority. But if we used Latin which we don’t any more summing up that prescriptive rights are establish so long as there is no arm twisting, stealth or permission neatly summarises the test. Then it goes on to cover things like maintaining, repairing and improving pipes, watercourses, rights of way etc. In the Covenants chapter Mr Kennedy deals neatly with the sorts of negative and positive covenants that we so often come across between not just neighbours but owners generally – not to build or keep dangerous animals on the one hand or to maintain or paint on the other. Anyone listening to the Archers will appreciate how easily escaping pigs damage adjoining gardens! There are also some useful hints on getting rid of covenants as of necessity, by consent and on grounds of redundancy. Many such applications result in pretty vituperative disputes some of which can be referred to the Lands Tribunal.
Some modern problems are particularly dealt with such as mobile phone masts and the dreaded Leylandii hedges are useful. Trespass and Nuisancenormally go hand in hand when relationships between adjoining owners break down. These are very practically dealt with root and branch if you will excuse the pun. Immediately following that is a good summation of Injunctions both prohibitory ‘do not’ ones and mandatory ‘do’ ones. One hates to think of applications for injunctive relief applying to neighbour disputes. But it is a fact that gates are locked, animals escape, boundaries encroach – all these essentially non monetary sorts of things might end up having to be enforced through injunctive relief. Kennedy even finds time to deal with ASBOS and harassment claims which can weave themselves into the rich tapestry of neighbour relations.
If you think we have got to the end of the book we are only half way through. Planning issues cause a lot of angst. As a building lawyer I have come across many cases where neighbours have stopped progress on site because of breaches or potential breaches of planning or building regulations or other sorts of encroachments onto their property referred to earlier. Resorting to stop notices right the way to injunctive relief are well covered. There is a big section on Litigation and if I have a criticism here I would have expanded the part that refers to costs as these can be so disproportionate in neighbour disputes. To a certain extent that is redressed within the next session on the court’s approach to neighbour disputes as he has taken a great deal of care to look at complying with the pre-action protocol, which perhaps in these sorts of disputes is more important than ever. It goes back to that balancing act solicitors have to do setting out the facts, the rights and obligations and what the parties should do about it. In that chapter mediation is covered in some detail as, of all disputes, these probably merit early mediation – you have issues that can probably easily be encapsulated in correspondence; you have parties who are quite capable of expanding and increasing the costs of the dispute, and you have the continuing relationship one neighbour to the other. As the author so rightly says ‘There is an opportunity for the lawyers to try to sow the seeds of a better relationship in the future, even if this is only achieved begrudgingly by a highly symbolic handshake and mutual mutterings between neighbours who may not have spoken in years’. That must be better than an imposed solution that might be a thorn in the side for years to come.
The whole book comes with a nice little CD with all the forms and precedents you will need if you have to take the dispute to a more formal level. This is certainly a very useful edition to the contentious property lawyer’s library. I am certainly not letting my copy go until I have dealt with that thorny prescriptive problem down on the farm!
Anthony Glaister – Published in ‘Solution’ August 2009 edition.
It is high time that a book came out that is specifically aimed at mediating in the construction sector which is probably the most prone of any area of business to fractious disputes. But this book is a veritable punnet of strawberries for anyone looking at managing conflict whether it’s in construction or not. It begins as it ends written in a practical easy to read format laced throughout with examples from Richbell’s enormous experience as a surveyor, mediator and as a trainer of mediators.
It begins with a punchy chapter on how the construction industry gets into so many disputes taking us through such problem areas as poor communication, personality clashes and unusually complex arrangements. The challenge for us lawyers is to advise appropriately, so he then looks at the various options ranging from negotiation to arbitration and litigation. Given the ease of using adjudication that’s a tempting route; but the very real benefits of using mediation are set out in easy to read sections. You would expect a seasoned mediator to conclude that ‘mediation restores the focus on business needs and sensible solutions’. He writes about achieving better deals, with speed, economy, flexibility, preserving ongoing relationships and finality.
The best sections are in the middle in guiding us through how best to prepare for and present your client’s case in mediation. Hence my comment that this is a good read for anyone involved in commercial mediation. If the mediator’s role is to move the parties into becoming more co-operative then that can involve a very different mindset from the lawyer’s role in litigation. We are given a really good insight into how best to prepare for mediation, key to getting the mediation off to a good start. Position statements, documents and pre-mediation discussions are all dealt with. Then we move into the mediation itself, looking at best practice both for mediator and representative – it is easy to foul up a mediation simply by choosing the wrong words said in the wrong way. The example of the barrister who tried to steal the show is particularly revealing. Whilst mediators can prime parties and their lawyers, there is a big responsibility on the representatives to advise, to prepare and to present their clients case, and then in helping the clients do their own risk assessment – the useful examples of two types of risk assessment are particularly useful. Richbell sees the role of ‘de-demonising parties’ as vital in achieving a realistic foundation for negotiation and settlement.
There are helpful hints at how best to manage the mediation – flexibility and tailor made for the dispute in question. Take for example this pearl of wisdom. ‘Don’t let the joint session end until its usefulness is exhausted’. We tend to forget that mediation as a branch of assisted negotiation and not an isolated process, and oiling the wheels of parties’ ability to negotiate directly is as important as the shuttle cocking during the private sessions. There is much also on looking at particular qualities in the mediator developing rapport based on patience, optimism, clarity of communication and ability to build a good relationship with the parties. Sense of humour and the ability to source the wine bottles to toast a successful settlement are other skills – the latter being mentioned at least 4 times.
It doesn’t end there as there is a useful chapter on dispute avoidance that perhaps could have come at the beginning rather than towards the end of the book. Any solicitor reading this could do no worse than memorise the 12 rules on how to avoid disputes arising in the first place. It hones in on the life changing skills needed to reduce levels of conflict, lessons for the good manager as well as a good mediator. At the back you will find precedents for agreements, checklists, risk assessment methods, Tomlin orders and the sorts of things you would expect from a very ‘hands on’ user friendly guide to mediation. This is a great little guide that’s easy to read for anyone involved in sorting out commercial disputes.