Mediation, as a non-adversarial approach to dispute resolution, has been gaining in popularity over the last decade or so. In some areas of law, such as family, a requirement to consider mediation before heading for court has become compulsory.
There are very good reasons for using mediation, particularly as a more conciliatory and less confrontational method is more likely to rescue family relationships from becoming irreversibly damaged by a more litigious approach. Nonetheless, in my experience, the use of mediation to resolve disputes over who should succeed to the farming business is not always successful for a myriad of reasons.
Fear of losing farm drives succession talks
Most farming families have heard scare stories about those who have lost their farm because of a lack of succession planning. This often prompts a review of their own business. Recognising that they have to make changes means they are often more receptive to anything that might help them achieve their aims, which may include mediation. However, the idea of using mediation, and who to use as mediator, often comes from one of the individuals concerned or from another family member, often a spouse, who is not actively involved in the farm. This runs the risk of the mediator being seen as biased in favour of the party who introduced them which automatically tilts the odds against a successful outcome. Accusations of partisanship can be avoided by appointing a mediator from a professional body, such as RICS, with the agreement of all the parties involved.
Facilitative mediation: good for communication…
Even if the mediator is perceived to be even-handed, the process itself is not designed to resolve family tensions. Facilitative mediation is the version commonly used in family farm succession discussions, so named as its principal purpose is to facilitate productive communication between family members. It usually takes place with everyone present and the consequential lack of privacy can make it difficult for each party to form an objective, evaluative approach to the dispute. Additionally, as a mediation usually takes place over a period of time, those involved are invited to discuss matters with the mediator in between the group sessions. If one party is seen to take more advantage of this opportunity than others, this can also lead to accusations of bias.
…but not so good for solutions
However, the main reason facilitative mediation fails is because it is communications rather than solutions-driven. Many farming families embark on mediation with no clear idea on what they want to achieve, an inadequate understanding of the farm’s structure and finances, and their own idea of ‘what is right’. In common with most people, farming families just want a neutral third party to give them a clear direction which is why an evaluative approach is often more effective.
An evaluative mediator, acting as an independent expert, can unlock the succession planning impasse by bringing to bear a range of experience to determine, and then resolve, the issues in hand which may include re-structuring the farming business. Such an individual would need a wide range of skills, not least an understanding of the legal ramifications of any agreement proposed for all those involved. By understanding the benefits and pitfalls of any given outcome, the expert can guide the family towards an appropriate resolution.
An evaluative approach to family farm succession planning can deliver what most families need – advice on what to do next. Re-establishing communication between all the parties is important but it is not enough. What is actually needed is a process that combines the skills of the mediator to bring the parties together, the force of presence of an expert determiner, and the inventiveness, knowledge, and understanding of a trusted adviser.
