Farming against my brother - when's it time to call in a mediator?

The wind farm developer has entered into leases in recent years with neighbouring landowners, and I am very interested in this too.

Dear Stephen,

I am a farmer along with my brother each part-owning 50% of the farm. In recent years, tensions have arisen between us as we have disagreed on what to do with the farm in the future.

A renewable energy developer has approached us regarding potentially them leasing our lands on a long-term basis. I am interested in pursuing this route, as I believe that it will be a steady source of income as we are both coming close to retiring age. 

The wind farm developer has entered into leases in recent years with neighbouring landowners, and I am very interested in this too.

However, my brother feels strongly that the company would not respect our land and use it in a manner that our late father would not have approved of.

I do not want to engage in a lengthy legal battle with my brother over this or have to try and subdivide the lands, and a friend has mentioned the option of mediation for us.

What exactly is involved in the process of mediation and what are the advantages?

Dear Reader,

I am sorry to hear of the situation you have found yourself in.

Your friend is correct in saying that mediation is certainly an option to help solve this issue. Mediation involves an independent third-party acting as a mediator and trying to assist the parties in reaching a compromise.

The current law governing the dispute resolution process of mediation in Ireland is the 2017 Mediation Act. One of the primary purposes of the introduction of this Act was to compel legal professionals to advise all of their clients on the option of mediation before ever initiating civil proceedings. This is provided for in Section 14 of the Act. The Act outlines that all civil proceedings must be accompanied with a Statutory Declaration, signed by the client, outlining that their Solicitor did suggest the option of Mediation to them.

It is important to note that under Section 7 of the Act, both parties can enter into an agreement to mediate which sets out the more intricate details of the process including; the way in which the costs will be divided, the place and time of the discussions, the confidential nature of the mediation and the right to seek legal advice.

Mediation is often carried out in the conference rooms of a hotel, or in the offices of the legal team. There is normally no time constraints for a conclusion to be reached, but there is the option for the parties to set a time limit on the discussions before mediation takes place. A successful mediation outcome can take anywhere from a couple of hours to a couple of days depending on the complexity of the issues.

Typically both parties will be in attendance with their legal representatives in separate rooms and typically, the mediator will divide their time between each party and will make suggestions with a view to an agreement or compromise being potentially reached. The parties will usually agree to be bound by the terms of the mediation before entering into it.

It is advisable to engage an accredited mediator who has experience acting as a mediator. Typically, mediators are solicitors or barristers or experts in certain areas, and it will depend on the nature of the dispute your legal advisors should recommend potential mediators for the dispute at hand. 

The advantages of mediation are:

• It is cost-effective and can save on lengthy legal proceedings 
• The parties have a lot more flexibility in respect of terms entered into to satisfy both parties as against a court case where typically there is a successful and unsuccessful party and can improve relations between parties going forward.

Stephen Coppinger, is a solicitor practising at Walsh & Partners Solicitors, 17 South Mall, Cork, and 88 Main Street, Midleton, Co Cork. Walsh & Partners also specialises in personal injury claims, conveyancing, probate, and family law.

Email:  [e-mail] 

Web: www.walshandpartners.ie

• While every effort is taken to ensure the accuracy of the information contained in this article, Walsh & Partners does not accept responsibility for errors or omissions howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.