Disputes over property ownership can be emotionally charged – particularly when they arise between cohabiting couples, family members, or friends. These disputes are typically governed by the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) and often involve both complex legal arguments and sensitive personal history.
Fortunately, an increasing number of people are turning to mediation as a practical, cost-effective, and relationship-preserving way to resolve these disputes without resorting to lengthy litigation.
What is mediation?
Mediation is a form of assisted negotiation in which parties attempt to settle their dispute privately and confidentially, with the help of a neutral third party – the mediator.
Unlike a judge or arbitrator, the mediator does not impose a decision. Instead, they facilitate discussions to help parties find common ground and reach a mutually acceptable settlement.
Importantly, everything said during mediation is “without prejudice”, meaning it cannot be used against either party in court if mediation fails. This creates a safe environment for open and constructive dialogue.
Why consider mediation in a TOLATA claim?
TOLATA claims often arise when legal ownership of a property doesn’t reflect the parties’ true intentions or contributions – common in disputes between:
- Former cohabitants
- Friends who jointly purchased a property
- Family members with inherited or gifted property interests
While the courts do have the power to determine beneficial interests and order the sale or transfer of property, litigation is typically lengthy, costly, and emotionally draining.
Mediation offers an alternative. It allows parties to resolve disputes in a neutral setting, often within a single day, and with greater control and flexibility over the outcome.
Although not mandatory, mediation is strongly encouraged by the courts, and failure to engage with it could result in adverse costs orders.
A personal, yet structured process
Mediation is not a ‘soft option’ – it’s a structured, professional process designed to help parties reach resolution on their own terms. Here’s how it typically works:
- Agreement to mediate
Both parties agree to attempt resolution through mediation. This is often initiated by solicitors or suggested by the court at an early stage.
- Selecting a mediator
A trained, neutral mediator is jointly appointed by the parties. Their role is to facilitate discussion, not to take sides or impose decisions.
- Preparation
Solicitors submit position statements summarising the facts, each party’s interests, and desired outcomes. These are shared with the mediator and the opposing side.
A pre-mediation phone call between the mediator and each solicitor helps to identify logistical needs or potential emotional flashpoints (e.g. staggered arrival times if tensions are high).
- Mediation day
The parties attend with their legal representatives, either in person, online, or by phone. Each party is assigned a private room, and the mediator moves between them, setting ground rules and guiding the process.
A joint opening session may take place if both sides agree, though this is not mandatory.
- Shuttle diplomacy
The mediator “shuttles” between rooms, conveying proposals and helping parties refine their positions. They encourage realism and compromise, always working toward a balanced solution.
- Settlement
If an agreement is reached, it is captured in a legally binding Settlement Agreement or, if proceedings are ongoing, a Court Order. This gives both parties finality and peace of mind.
- If no agreement is reached
Should no agreement be reached on the day, mediation ends. Discussions remain confidential, and the parties may continue negotiations or proceed to court. Further mediations can also be scheduled later.
Understanding the costs
Mediation can significantly reduce legal expenses compared to full litigation.
Typical costs include:
- Mediator’s fees
- Legal fees (solicitor’s / barrister’s fees) for preparation and attendance
- Venue hire (if not held at solicitors’ offices)
The costs of the mediator and any venue fees are usually shared equally, while the respective legal fees of each party will be borne separately.
A better way forward
Court proceedings can heighten conflict, especially between family members or former partners. Mediation provides a more dignified and controlled path forward, preserving relationships and mental wellbeing.
Courts expect parties to consider mediation in TOLATA cases and may penalise those who unreasonably refuse by making costs orders against them.
Ultimately, mediation is not just about saving money. It’s about crafting a fair, workable solution that protects what truly matters: time, peace of mind, and relationships.
How we help
At Birketts, we understand that home ownership disputes are more than just legal issues – they are deeply personal. We provide compassionate, practical guidance to help clients resolve disputes through mediation and negotiation.
With extensive experience in TOLATA claims, roundtable negotiations, and mediation, we work hard to achieve tailored, effective outcomes.
“Sincere gratitude for your unwavering dedication and expertise in securing a life-changing result. Your efforts have made a profound impact, and I am deeply thankful for your exceptional work”.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2025.