010 Mediation with Claire-Elaine Arthurs

Marion Ellis talked to Claire-Elaine Arthurs, a Solicitor and CEDR Accredited Mediator, who specialises in property related dispute resolution and risk management. As a Partner at Gunnercooke LLP, she is particularly well known for her proactive approach to portfolio and site management.

Claire and Marion discussed how surveyors can ensure mediation is successful and reduce the need to refer them to the Courts.

Boundary Disputes Are On The Rise

With the lockdown and people being stuck at home, what Claire has seen is a significant rise in boundary disputes.

“One of the problems we’ve got with people sitting at home is that the feeling of an injustice will bubble up and it becomes a point of principle,” Claire explains. “That’s my two inches of garden, that’s my right. One of the things that drives this even further is the lack of control over the present situation, and people need something to cling onto. But you’ve got to be pragmatic, so one of the first questions I always ask them is how much impact that issue actually has on them. Are we talking about something that is just a point of principle, or is there a value driven reason as to why this needs to be sorted out?”

Although many people have home insurance, it usually covers legal expenses of up to 50.000 GBP, while the average boundary disputes can go up to 200,000 GBP in some cases. This fact often helps people put things in perspective, as going to the courts is not only expensive but courts are now in big delays due to being understaffed and closed during the coronavirus pandemic.

Mediation Process

Claire gave us an overview of what mediation work is and what happens in that process.

“Mediation is a form of facilitated negotiation,” Claire explains. “We would start with direct negotiation, having a conversation or exchanging emails. But the problem you’ve got there is the distance. It’s hard to get any exploration of what’s going on under the surface, because everybody is taking their formal position on behalf of their clients. With a mediation, you put an independent person in the middle. That independent person can have confidential conversations with both sides of the dispute. I would go and speak to one party and I will dig under the iceberg, work out what the problem is from their side. Because it’s completely confidential, I only pass across to the other side what I’m given permission to take with me. Then I mine under the iceberg with the other side as well. That’s how I get a really good feeling sitting there in the middle, as to whether there is a common ground between the two sides. I would then essentially coach each side on how they can move themselves to a position where they’re in that common ground where we can formulate a solution, which is going to be a compromise for everybody, but it’s going to be something that practically can work.

“Surveyors are in a much more pragmatic position to be able to look at it on the ground, come up with practical solutions and also address that human side of what’s going on with people in their homes,” Claire continues. “The problem with a lot of lawyers is that we like to get the legal answer, but that doesn’t necessarily solve the problem. That’s why nowadays I spend a lot of time exploring what the problem is, so I can come up with a proper solution that works for that client.”

Preparation is key to a successful case. Mediators will first have calls with the people on both sides, sculpt out the case with them, and see if they have everything they need, like copies of all the deeds in the plans, photos, all the bits of evidence and information. “There’s nothing worse than trying to do mediation, and there are no photographs of the issue in question. The whole thing grinds to a halt,” says Claire.

A Spike in Claims Against The Surveyors

We are also expecting a spike in claims against surveyors, as people are in their homes doing some DIY surveying. It becomes more important than ever for surveyors to learn how to handle the complaints and try to resolve them at an early stage, before the emotions kick in and people get entrenched. Although there might be generations of surveyors who have never had a claim, Claire believes surveyors should not panic about the likely spike in claims.

“If you’ve done what you should have been doing, you kept your files in order, then really don’t panic the first time you get a complaint. I’m amazed if I ever meet anybody who hasn’t had a complaint at some point, because quite often it’s not even because you’ve done anything wrong. It could just mean a client who doesn’t quite fancy paying that bill.”

However, the thing to do as a surveyor is to be completely open and honest with insurers and mediators, and with the right documentation, your chances of a successful mediation can go up to 80%.

Communication Is Vital

The reason why mediation works for dealing with disputes and claims is that it has a structure and a process, but people also get to voice their anger and frustration, which really helps them to get the emotional side of the resolution off their chest as well.

“Mediation is all about dealing with people. I find people genuinely very interesting. For me having a conversation with someone and finding out what’s going on for them and what makes them tick is something I enjoy doing,” Claire says. “And then I’ve got the analytical side of my brain as well, which comes with being a lawyer, that enables me to work out a solution, but I’m aware that not many lawyers would approach it this way,” she concludes.

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