YMG Guest Interview - Dr Bob McIntosh CBE, Scottish Tenant Farming Commissioner

Earlier this month, our YMG co-chair, Ashley McCann, interviewed the Scottish Tenant Farming Commissioner (TFC), Dr Bob McIntosh CBE on the Scottish Land Commission’s newly launched mediation scheme which aims to help make mediation more accessible to those in the agricultural holdings sector. To quote the Scottish Land Commission, land is at the heart of Scotland’s identity, economy and communities. It follows that disputes about land are commonplace and can be complex, costly and contentious.

Can you give us an overview of the role of the Tenant Farming Commissioner?

The TFC is responsible for promoting and encouraging good relations between landlords and tenants which are necessary for a thriving and prosperous tenant farming sector. The TFC has powers to publish codes of practice and to investigate alleged breaches of the codes.  The remit is therefore very broad and tenants, landlords and their professional advisers regularly contact me about a whole range of issues – such as assignation, relinquishment, rent reviews, tenant’s improvements, sporting leases, end of tenancies and new tenancies. 

It is said that necessity is the mother of invention. What gave rise to the need for ADR in the tenant farming sector?

It became apparent back in 2017 that in a minority of disputes the parties involved had reached a point where their relationship was so poor that the issues they sought to be brokered could not be aided the TFC, or resolved by submitting an Inquiry into an alleged breach of a code of practice. Some had applications lodged with the Land Court but were reluctant to proceed. The issues were complex and long standing with seemingly irreconcilable conflict and a history of negatively impacting on the farming businesses involved.  We felt that there had to be a way to help these pre-court cases that had been stuck in dispute for some time and decided to investigate alternative methods of dispute resolution.

Can you tell us about your process for designing the TFC Mediation Scheme?

We decided to investigate whether mediation would be able to help in these specific cases where a tenant farmer and landlord had reached an impasse, yet both were willing to engage with each other to explore the best opportunities for reconciliation.

We therefore set up a pilot scheme in 2018 where the Scottish Land Commission funded the mediation, but not the fees of any professional advisers that parties involved in the mediation. We really devised the pilot scheme as an extension of our own approach to casework - and as a trial to see if and how it might benefit participants.  We weren’t aware of any similar schemes operating at the time.

We felt that funding the mediation would provide an incentive for parties to take part in a process that was relatively new and unknown within the sector, but participants having to fund their own professional advisers ensured some ownership in the process.

Why was mediation your preferred method of alternative dispute resolution?

My own approach is not adversarial and I am keen to help parties move on by means of constructive dialogue and mutual agreement rather than determination of who might be right or wrong.  Having looked into different types of alternative dispute resolution and produced a Guide to alternative dispute resolution we felt that the ability of mediation to engage parties, share responsibility in decision making and explore the rebuilding of relationships made it uniquely appropriate for tenant farming cases.

Ultimately we hoped that the mediation process itself could help parties to develop a positive working relationship moving forwards.

Can you give us an overview of how the TFC Mediation Scheme operates?

The scheme has three elements:

(i)   A Tenant Farming Commissioner gateway – to ensure parties are suitable and ready for mediation and to enable access to TFC support and reassurance if required. We found in the pilot scheme that oversight by the TFC gives participants the confidence to take part and the referral by the TFC creates an expectation that participants should behave constructively.

(ii)  An approved panel of mediators – to provide easy access to experienced mediators. Once an application has been approved by the TFC, applicants are encouraged to contact several of the panel members to discuss what mediation services they would be able to provide in their circumstances. The mediators will talk through the mediation process and provide an indicative fee. The TFC will not recommend a mediator from the panel. All of the mediators on the panel have been through a rigorous selection process and we are confident that any one of them will be able to provide a good service.

(iii)  A contribution from the Scottish Land Commission of one third of the total cost of the mediation process (payable to mediators on the panel) up to a maximum of £1,000 (+VAT) to provide an incentive for participants to try mediation.

 At the end of the mediation the mediators draw up a settlement agreement with the parties’ lawyers. The mediators have a pro-forma settlement agreement that they work to and populate at the mediation.  This is agreed, drawn up and signed on the actual mediation day with all parties present.

Who is eligible to use it?

We launched the new scheme in January 2021 with the view to improving access to mediation for agricultural landlords and tenants.  The new scheme is open to any relevant party in the tenant farming sector. It aims to help resolve a dispute, or potential dispute, as an alternative to seeking resolution through litigation. Further details on eligibility criteria and how to apply can be found on our website.

What lessons were learned from the pilot scheme?

Four mediations took place under the TFC pilot mediation service.  All four resulted in settlements that covered the issues raised by the parties and dealt with the difficulties of the past in a comprehensive way.  The shortest mediation took 8 hours on the day and the longest was an online mediation lasting 21 hours over 2 days.   

The mediation timescales in all cases were significantly less than litigation timescales which would have tied up the parties, their advisers and the courts in many days of preparing evidence and attending court hearings. This was particularly relevant in cases where Land Court actions had already been separately lodged.  In a similar vein, the costs of mediation for each party may be put at a few thousand pounds whereas the costs of litigation may have cost a few tens of thousands of pounds and they could have an outcome where they would have to meet the other party’s costs.  

There were a range of issues presented including: landlord-tenant obligations, rent review, compensation for tenant improvements, landlord improvements, resumption, land sale/purchases, lease arrangements, and establishing communication arrangements for the future. Each mediation included several of these, if not at the beginning, at least by the end of the day, as it was not uncommon for new matters to be raised and receive consideration during the mediation. This came about largely because as the parties saw the opportunity presented by a mediated resolution, they became more receptive to widening the field of negotiation which by the nature of the outcomes led to agreements which were in the parties’ longer term interests. This should add to the enduring value of the settlement agreement and both the success of the mediated negotiation and the experience of achieving it through respectful dialogue will hopefully assist the parties to engage in future dealings in a more constructive way than had been their experience in the past. 

Can you give us some insight into participants’ attitudes to the TFC Mediation Scheme so far?

As part of our review of the pilot scheme we talked to participants about their experience. Most were nervous, and some initially sceptical, about taking part and were pleased to be able to talk through the process with me and the mediators in advance.  We found that pre-mediation meetings and information about the process were very important parts of the process.  Participants also placed a high value on the confidentiality of the discussions and outcomes, for many confidentiality was one of the key aspects to ensuring their participation.  Those who had lawyers and agents present also relied on them to provide reassurance and support throughout the process. 

Interestingly once the mediations had concluded, all of those who took part said it was worthwhile and would encourage others to try it. In all cases they told us that the outcomes exceeded expectations and the outcomes couldn’t have been achieved in a court process.   

Participants also told us that landlord and tenant relationships have improved since the mediation – they put this down to the decisions being made were their own, and not imposed by a third party. We were particularly pleased to hear this as it was one of the main reasons why we had looked into mediation at the outset.

I note that, as things stand, the TFC Mediation Scheme runs until 2023. What do you hope to achieve in the longer term?

Our aim is to mainstream the use of mediation in the tenant farming sector so that the support and brokerage of the TFC is not required.  Although we have learnt a great deal from the pilot scheme, the culture of ADR is not yet firmly established and there are no established mechanisms in place to promote and provide access to mediation services.

We felt that TFC support is still valuable - particularly in providing reassurance about the mediation process to potential participants and in providing the oversight that engenders participants to engage productively. 

Finally, have TFC mediations been conducted online during the COVID-19 pandemic? If so, how effective have they been?

One of the pilot mediations was conducted successfully online and the mediators on our panel have all been conducting mediations remotely over the past year.  Whilst some subtleties in negotiation might be lost, moving online can increase accessibility to mediation as parties can attend from their own homes or work places, it can also keep costs down as neutral venues do not have to be hired.  Just as with an in-person mediation, the mediators do spend some time in advance of the actual mediation day familiarising participants with the process and explaining how the mediation will work on the day.  Looking ahead I envisage that mediations, or some parts of mediations, in the future will continue to be conducted remotely.

The YMG would like to thank Dr McIntosh and his colleague, Sarah Allen, Head of Tenant Farming at the Scottish Land Commission, for their time and valuable insight on the TFC Mediation Scheme.