Mediation not likely to have worked for the Patersons

The eviction of farm tenants on Arran raised the need for mediation in farm disputes. Murray Soutar, a partner in Gillespie Macandrew LLP looks at the issues

The Paterson family on Arran claimed that mediation could have been used to arrive at a less contentious conclusion and at one stage it seemed that Scottish ministers agreed.

In the situation, mediation might appear to be a sensible course, but any thought of it was ultimately dropped in this case. Would it have made a difference? Mediation as a process is undoubtedly an effective way of resolving disputes without resorting to litigation in court.

It involves an independent, third party qualified mediator who builds the communication channels between both parties, working with them to reach a common sense decision both are prepared to accept.

The costs are usually less and shared equally between the two parties. If no settlement can be achieved, the parties still have the option to revert to court.

There are many instances across the farming sector when an approach to a mediator would be a constructive means of resolving a dispute. For example, in a dispute with a machinery supplier, a processor, a neighbour and in some instances between landlord and tenant.

However, although these examples of its use show that mediation has a clear role to play in resolving disputes in the farming sector, it is usually adopted where it makes commercial sense for parties to find common ground.

If mediation is to be successful in a landlord and tenant situation each side needs to be prepared to meet somewhere in the middle and that is not straightforward when the termination of a tenancy is at stake.

In this situation, where landlord and tenant want diametrically different things, it is unlikely that mediation will successfully find a resolution acceptable to both parties’ interests. The Patersons represented a generation of farmers the sector in Scotland wants to promote and hold on to with both hands, but poorly drafted legislation in the form of the Agriculture Holdings (Scotland) Act 2003 and subsequent amendments is having the opposite effect. In most cases, when a dispute arises under this legislation, the interests of landlords and tenants are so polarised that mediation cannot bring them back together.

As a consequence, a number of changes to agricultural holdings legislation are to be introduced under the Land Reform (Scotland) Act 2016, but these have yet to be implemented and it will remain to be seen whether or not mediation can become an effective way of resolving landlord and tenant disputes in the farming sector.

Prize-winners at Forfar Mart’s Christmas show. Left: champion bullock by a Limousin sire from D Lumgair, Gask. Charlie Mackenzie of Davidsons Veterinary Supplies presented the trophy to John Lumgair. George and Scott Jarron of Scott Brothers, Dundee,...

Picture: Wullie Marr. Ian Paterson of Glenree Farm.