Middle Ground: The Importance of Mediation in Resolving Property Disputes

It is perhaps one reason why there is an audible dash into gardens across the country as soon as the skies clear and the temperatures start to climb.

Whilst the year's middle months offer a chance to switch off from work and relax for many of us, for some they provide another reason for our internal thermometers to rise in frustration.

That's because not all neighbours get on with each other.

Instead of the garden fence being the scene of harmonious, happy exchanges, it can quite literally be a source of friction and protracted, costly dispute.

I was reminded of that very point while reading of the conclusion of a case in Oxfordshire brought by a couple against neighbours living in an adjoining cottage.

Helen Faber and her partner, Dominic Miles, alleged that they had returned from a period living in France to find that Richard and Katherine Reid had shifted a garden fence, restricting their access to the rear of their property.

They claimed that their right of way to a path, owned by their neighbours but running behind both homes, had been impeded.

As part of their evidence, they claimed that the moving of the fence left them unable to bring "a large picnic tray laden with food and drinks" to a patio.

A High Court rejection of their arguments has now been confirmed by the High Court, which noted that the right of way related to passage on foot and "does not give rise to a right to use bicycles, push-wheeled vehicles, carts or barrows along it".

It was, as the Daily Mail concluded, "A fence complaint too far".

The outcome is a reminder, I would suggest, of how expensive and risky being embroiled in a property dispute can be.

That is particularly the case given a shift in the protocols - the Civil Procedure Rules - which govern how such matters are dealt with by the courts.

Last October, a new rule took effect, requiring greater emphasis be placed on trying to settle disputes via what is known as Alternative Dispute Resolution (ADR) methods, including mediation.

The update, in turn, followed a notable 2023 decision by the Court of Appeal which outlined how judges have discretion to require ADR participation in appropriate cases.

If we take a look at figures published just days before the High Court's ruling in the case featuring Mr and Mrs Reid, we can see why that is useful.

They showed that County Courts across England and Wales handled 490,000 cases of all types, including property disputes, during the first three months of this year - up 18 per cent on the same period in 2024.

It is hardly surprising, therefore, that attempts are being made to alleviate some of that strain, including the imposition of costs penalties on those who do not take ADR seriously.

I always advise clients to actively pursue a resolution via mediation rather than simply dashing to air a dispute in court.

The latest data published by one of the UK's ADR providers, the Centre for Effective Dispute Resolution (CEDR) shows that mediation of various sorts is successful in 92 per cent of cases - most of which are resolved on the day of the session itself.

It is far better to try and find compromise - or, if you pardon the property pun, a middle ground - than to spend lots of money only to find out, like Ms Faber and Mr Miles, that your argument was flawed.

For further information, please contact Matthew: matthewwayman@bexleybeaumont.com  |  07779 593411