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Jill Headford

Posted 20 January 2017
by Jill Headford

Equine disputes and mediation



Mediation is a semi-formal way of resolving disputes outside court.  Often known as Alternative Dispute Resolution (ADR) it can be very useful in horse disputes because:

  • The cost of a full blown court case may be disproportionate to the value of the horse.
  • An early resolution is often needed so that the horse can be returned to the seller, sold on, PTS, etc.
  • Solutions often require more imaginative terms than the court has power to order, eg. sale to a third party with all rights reserved as to the balance of the sum in dispute, supply of a replacement horse etc.
  • The parties may have an ongoing business relationship or wish to be able to deal with each other amicably in the future.
  • Mediations are private and confidential, unlike open court hearings.
  • In a cross-border dispute and there may be jurisdictional arguments.

What if mediation seems hopeless?

The modern view is that mediation is always worth a try.  Cases where it would be considered hopeless are very rare indeed.  The courts now have the power (and inclination) to impose sanctions on any party who refuses to attempt mediation.  They might be ordered to pay penalty costs or their claim might be stayed so that mediation can take place.

How does the process work?

It is usual for the parties lawyers to arrange everything and accompany them at the mediation but there is nothing to stop the parties going it alone.  But if one side is represented the other will generally wish to be.

The parties appoint a mediator by agreement.  Usually one party will suggest a few options from which the other party will choose.  The mediator is contacted and asked to state his fee which the parties can accept (or not).  The parties also have to choose a venue according to location cost, suitability, etc.

Once the parties have chosen a mediator and venue and have agreed all the costs, they must pay those costs up front, half each.

There is a certain amount of preparation for the mediation itself, including exchange of relevant documents and preparation of a mediation bundle and the drafting of Position Statements. Quite often the mediator will want a chat with the parties separately by telephone, just to get a feel for each side’s position.

At the Mediation meeting:

  • The parties will have arranged a large meeting room and an additional smaller conference room for each side and on arrival each party and its team (consisting usually of their lawyer and/or a supporter or two) will settle down in their own conference room.
  • The mediator will visit each side briefly and then open the mediation with a joint session in the large meeting room.
  • At the opening session, each side is often invited to make an opening statement and it is sometimes helpful if this is done by the parties themselves rather than their representatives. This will highlight particular points of concern and sometimes questions are raised and answered.
  • The parties will then each adjourn to their private conference rooms and the mediator will work back and to between them, trying to broker a deal.
  • If by the end of the mediation no agreement has been reached, the mediation has at that point failed. But very often the parties will continue discussions after the end of the mediation and reach agreement fairly quickly thereafter so not a failure after all.
  • If agreement is reached at the mediation, the legal representatives (or, if none, the mediator) will put it all into a formal written agreement and the parties will sign upon which the settlement agreement becomes binding and the dispute is over. 

A mediation is “without prejudice”

  • Another advantage of the mediation process is that the parties can speak frankly without worrying about damaging their case. The fact that a mediation has taken place will be known to the court but none of the statements or submissions or any of the comments made by the parties or their witnesses at the mediation will be admissible in court.
  • However if a binding agreement is reached at the end of the mediation, the blanket of privilege is lifted and the proceedings cease to be “without prejudice” because of course at that point the dispute is at an end.

Confidentiality

It is common for an agreement reached at a mediation to be strictly confidential to the parties and their legal advisers.  Indeed this is one of the great advantages of resolving disputes by mediation rather than in open court.

Mediation success rates

It is difficult to be sure but an audit carried out by the Centre for Effective Dispute Resolution (CEDR) in May 2016 reported that 86% of their mediations succeeded, the vast majority of those on the day and the rest shortly afterwards.

Even if a mediation fails, it will often have served a useful purpose in clarifying the issues and highlighting what solution each party is really looking for.

At what point should I mediate?

The earlier the better.  Perhaps the biggest advantage of mediation is the saving of legal costs.  It is a simple fact that the earlier a dispute is resolved, the lower the costs for both sides.  The lower the costs, the easier it is to reach a settlement.  Sadly, it is far from uncommon for the parties to make a late dash for mediation when they are almost at trial.  There are still advantages even at that late stage and at least the cost of trial can be saved but a equine dispute which can be settled at all can be settled early if the parties put their minds to it.

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About the author

Jill Headford

Jill Headford

Partner

A partner in the firm since 1994 and an experienced Court and Tribunal advocate, Jill specialises in resolving disputes and is a member of the Property Litigation Association