ANGUSMCCALL

As anyone who has tried it knows, going to court to settle a dispute is an expensive, time-consuming and stressful business.

Finding alternatives has been high up the agenda for tenant farmers for a number of years and recently some good work has been done by the Land Commission which has been successfully piloting mediation over the last year.

To the uninitiated, mediation is a process designed to help broker an acceptable agreement between two sides with the help of an independent mediator without relying on litigation or arbitration.

It is usually successful because not only is it a relatively rapid and costeffective process but the final settlement has been reached through compromise and consensus, rather than being imposed by a court or arbitrator.

Tenancy law has always been highly regulated and, as it evolves over the years, it is becoming ever more complicated and disagreements frequently arise between landlords and tenants.

The Scottish Land Court was set up over a century ago to deal with crofting, tenancy and other agricultural disputes, but it too has evolved. Having originally been a court of experts dealing with arguments mainly over factual matters, the Land Court now regards itself as a court of law and handles disputes accordingly.

This approach suits most cases before it which are to do with questions of law, but, arguably, it is not the appropriate arena for what would appear to be simple factual disagreements over, for example, farm rents which are generally valuation issues which could be dealt with by a panel of experts rather than a court of law.

The price of justice can be disproportionately high and despite the Land Court having a busy workload there have only been three rents determined by the Land Court since 2003.

The cost to the tenant involved exceeded £150,000 each, lasted nearly six years and led to six-figure claims for back rent.

It is no wonder then that tenants are reluctant to challenge a rent demand which might lead them into a similar protracted and expensive legal court battle. Giving in to an increase in rent, however unfair, is seen as preferable.

Other battles, such as over succession, cannot be avoided and mediation can be an option.

Mediation is now seen as a more civilised and less confrontational way of breaking an impasse and clearing the way to reaching an acceptable agreement. It does involve compromise and may not work every time, but at the very least it will help both sides understand each other’s positions.

In an effort to promote this idea, the Scottish Land Commission and the Agricultural Law Association are jointly hosting a mock mediation event at the end of March. The mediation centres on an end of tenancy waygoing from an agricultural holding. The two protagonists are being played by David Johnstone, chairman of Scottish Lands and Estates as landlord, and Christopher Nicholson, chairman of the Scottish Tenant Farmers Association as tenant.

It promises to be an interesting day. We will see if fiction is stranger than fact and hope both sides will be on speaking terms at the end of the exercise.

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