26 Sept 2022

Mediation can help farm families resolve disputes and plan for the future

Kilkenny Kilkenny

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Hardly a week goes by without the mention of mediation in the news. It is being used successfully in family, workplace, commercial and community disputes.

But is it a chosen option for farming families facing disputes involving issues around boundaries, succession, inheritance, family and intergenerational issues?

After 30 years in practice as a professional mediator, I have found farming families more reluctant to engage in the process. For reasons that are as complex as they are deep-rooted, mediation is not seen as the ‘first option’ dispute resolution mechanism as it is for instance, in workplace disputes.

Farm family disputes or farm-related disputes seem to begin on some level and proceed from that in a fashion and at a speed that makes adopting fundamentally adversarial positions almost inevitable.
No useful purpose is served by delving into the history or communal psychology behind this phenomenon, but I think we should recognise it and – as recent shocking events in Cork show us – be very careful and wary where we see the adversarial approach tipping into an appalling outcome.

What makes the approach to farming disputes different to the approach taken to similar difficulties in other areas where disputes arise?
Too often things are left undiscussed and unplanned until a crisis arises and decision making has to become reactive and perhaps hurried.
The mediation process honours and respects the wishes of the participants, encouraging them to future-focus, enabling them to achieve outcomes that work best for them.

Farming, usually a family business, is a full-time profession dictated by the demands of seasonal change, weather, prices, animal needs and health, world markets and harvesting pressures. There are literally numberless factors affecting the welfare and outlook of a family farm business. In that context, participants and all involved want those factors that are amenable to certainty, to be certain and absolute. Hence the fixation on who ‘owns’ the land.

There may very well be some primal urge at work as described in ‘The Field’, but by definition, that’s going to be hard to measure. What can be measured and understood, is that in a world of modern farming, where practically everything is a variable and affected by external factors, people need the fixed element that is the certainty that they own the land, the tool by which the income is to be generated. So we have this practical and pecuniary consideration in tandem with a generational legacy attachment to the land.

This is a heady and powerful combination and, added to that already potent mixture is the fact that farming in Ireland has always been, and still is, a lifetime commitment. We all know or are aware of the potential for disputes when family members have different priorities and seek lifestyle choices different from their parents. Where those different priorities or ambitions run up against the lifetime commitment on which Irish farming has traditionally been premised, it is almost inevitable that serious disputes may arise.

So how can mediation help farming families to resolve disputes?
Mediation is a process that enables parties in conflict to consider and discuss all the various options available to them. It is confidential, impartial, empowering and above all the emphasis is on enabling the parties involved in the dispute to consider the options and decisions that they need to make. The mediator does not advise, though he or she needs to be informed around the issues under discussion.
The mediator’s role is to facilitate the views of all participants being heard, helping them to discuss and consider all their options before making future decisions on a specific issue. It is less expensive than the legal route and gives the parties in dispute ‘ownership’ of the resolution in a manner that perhaps legal settlement does not.

Where appropriate, participants are encouraged to seek legal and financial advice and to avail of relevant farm advisory information.
Following separate and joint meetings with all the parties involved in the dispute a settlement document can be drawn up by the mediator. This document can be made legally binding if the parties choose.
The Mediation Act 2017 provides protection for parties as the mediator is obliged to inform parties of their qualifications, experience and fees. Mediation can be used when an actual dispute arises or – very effectively - in future planning when discussions are needed but nobody wants to start the discussion.

Issues most often considered include: what happens when a new spouse/ partner joins the farm?
What happens if a marriage/ partnership breaks down – how can a spouse/ partner leaving the farm get their legal entitlement without breaking up the farm?
What happens if one parent develops a serious physical or mental illness and is unable to manage – how can a care plan be put in place?
What happens when a parent dies – what are the future living arrangements for the survivor?
What is the succession plan for the farm – what promises have been made?
Who inherits the land, the family home, the responsibility and how do the siblings who have left home get their expected inheritance?

These examples are just a small selection of the type of decisions that farming families may have to make. Ignoring difficult conversations doesn’t mean they go away – they just become more difficult.
Mediation encourages difficult conversations in a safe environment.

The unspeakable tragedies that unfolded in County Cork in recent times are a very stark reminder that we need to actively look at better, safer and more inclusive ways of resolving farm disputes.
Thirty years ago, Mediation was seen as an “alternative form of dispute resolution”. I am firmly convinced that, in the majority of cases, it is now the “appropriate form of dispute resolution”. Mediators are professionally trained and accredited and registered local practitioners can be found on the Mediator’s Institute of Ireland website. Please feel free to ring the Mediators’ Institute of Ireland at 01-6099190 and contact details for appropriate mediators will be provided.

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