If you are a lawyer or self-represented litigant, and you are about to mediate a (freehold) neighbour dispute—boundary/adverse possession, fence/tree issues, nuisance, trespass or negligence—prepare yourself. As a lawyer for more than 25 years, and as a mediator for more than 10, practising in this area, I can tell you they are notoriously difficult to resolve without the intervention of an experienced mediator. This is true even when both sides have experienced counsel. They are always highly emotional, high stakes, and they tend to involve multiple issues that are not easily resolved.
Worst case, if the parties don’t settle their differences, they face expensive and time-consuming litigation that take up limited judicial resources (made worse due to COVID-19 related closures and backlogs) that could end in a trial conducted by a judge who may view the parties’ issues as petty and unimportant, and ultimately, be dismissed.
Once the parties have agreed to mediation, or mediation is mandatory, here are some strategies to help set you up for success:
1. Choose your mediator wisely. When deciding which mediator to engage, always ask: “Do they have the skills and expertise to mediate the issues in this dispute?”
2. Decide which approach to go with—a mediation or mediation-arbitration (Med-Arb). Before agreeing to traditional mediation, the parties should consider Med-Arb, where if the parties cannot settle at mediation, the mediator becomes the arbitrator an makes a binding decision. Med-Arb can save time and money, promote privacy and finality, and maximize expert decision making. However, Med-Arb may be inappropriate if one or more parties are self-represented, or if they have agreed to mediation quite late in the litigation process.
3. Specifically address these key considerations in your Agreement to Mediate. A mediation agreement for a traditional mediation or med arb should contain, at a minimum, the following:
- Contract out of the exception to settlement privilege (See Union Carbide Bombardier (2014) SCC) so that mediation communications can’t be used in evidence if one party asks the court or an arbitrator to enforce a settlement
- No settlement until and unless there are signed minutes of settlement
- The mediator does not provide legal advice (even if they happen to be a lawyer)
- Mediator has immunity
- A protocol for a virtual mediation by videoconference (i.e. Zoom or Microsoft Teams) is set out or referred to
In addition to the above, an agreement for a Med-Arb should contain an “opt-out” provision where, following the mediation phase, one or both of the parties can substitute a different arbitrator (named in advance) for the person who conducted the mediation. This avoids allegations of, or concerns about, bias on the part of the mediator-arbitrator.
4. Timing is everything. Whether mandatory or not, mediations should take place as early as possible in the dispute (pre-litigation is ideal). Counsel and parties should also set aside at least one full day and be prepared for possible additional mini sessions by phone or video conference.
5. Make a house call. It’s important that lawyers make a site visit prior to the mediation (and earlier the better) to get the “lay of the land”. Client audio-video recordings, photos and Google Earth are helpful, but they are not a substitute for inspecting the area(s) in dispute yourself, especially noise and boundary disputes. Similarly, it is ideal (although not always practical) if the mediator can make their own site visit, or attend with counsel. Just be sure to play it safe during the pandemic—indoors and/or out—and comply with all applicable laws and health guidelines.
6. Location, location, location. Subject to the limitations caused by the pandemic, as well as inclement weather, consider holding an in-person mediation at the homes of the parties, with the mediator going back and forth. This arrangement has always worked well for me when it is safe, and it can also allow for the site visit mentioned above to take place on the same day as the mediation.
7. Collect, analyze and share background information. Mediation briefs should include, at a minimum:
a. Surveys, including recent and historical (if relevant)
b. Better still: Consider a jointly retained surveyor for the most up-to-date survey
c. Photos and/or videos and/or audio of area(s) in dispute
d. Expert reports (arborists, structural engineers, landscape architects, etc.)
e. Contractor reports/field notes/estimates (surveyors, fence contractors, etc.)
f. Detailed chronological narratives
g. Applicable case law, legislation, and by-laws
h. Witness statements
i. Title documents (parcel registers, transfers/deeds, R-plans, declarations of possession)
j. Open and expired settlement offers (where did the parties leave off?
8. Build trust and cooperation. You will want to prepare parties to deal with high conflict and difficult issues, so clarifying communications is critical. For example, probe if there has there been any violence or a risk of violence? If so, then no joint/plenary session except by way of videoconference (but even then, be on guard). If there is none, consider at least a brief joint session but with the mediator doing 90-100% of the speaking and without formal opening statements by counsel.
9. Think positive. Prepare to settle. If a settlement is reached in principle, it may not be practical to draft and sign Minutes of Settlement (“MOS”) on the same day if there are many issues. So, a non-binding Memorandum of Understanding may be the best outcome for complex cases. Then counsel can draft the MOS in the days and weeks post-mediation, with the mediator on stand-by if needed to resolve any issues that arise. The parties may also need vesting orders, municipal approval, registrations on title, etc. to bring the MOS into effect, so counsel need to put their minds to these issues.
10. Assume the best but prepare for the worst. In my experience, it rarely happens, but sometimes people don’t comply with the settlement terms, or there are future disputes between the same parties if they are going to continue to live next door to one another. What happens then? Deal with these possibilities in the MOS so that everyone knows what would happen in event of non-compliance and future disputes. While you are at it, consider inserting a mediation clause so that the parties come back to mediation before taking compliance and dispute issues to court, or before an arbitrator.
This blog is for educational purposes only and is not intended as legal or other professional advice.
As a neutral third party, I can help you and your neighbours find solutions to settle neighbour and boundary disputes. I’ve also prepared an excellent resource of Frequently Asked Questions you may find helpful. For more information about my mediation and arbitration services*, click here.
*Dispute resolution services provided by Mitchell Rose Professional Corporation.