Consultation Paper on Alternative Dispute Resolution - Law Reform ...

It has been noted that a formal legal system approach to the boundary dispute
may not resolve the real dispute:
―If the right of way issue is so reduced to the allegation of trespass,
met by the counter allegation of prescriptive user, the danger is that
we will never reach the real, underlying problem between the parties
and therefore never resolve it. Someone will win the case and
someone will inevitably lose but the dispute - the actual dispute
between the parties - will break out again and again perhaps at some
other place and even perhaps in some other generation.‖ 10
9.08 It is important, therefore, to identify at the outset precisely what the
goals and underlying interests are of each of the parties before they become
deeply entrenched in their positions and litigation commences. 11
(2) Appropriateness of ADR for Resolution of Boundary Disputes
9.09 In the English case Barker v Johnson, 12 where a dispute had
occurred between neighbours over an easement of drainage, Ward L.J. stated
that
―I would urge these parties to seek the help of this court's ADR
service in order to explore whether a compromise would not only
enable this litigation to be killed off sooner rather than later, but that
some sense of compromise might bring a greater sense of happiness
and peace in the respective homes of neighbours who continue to
live together and should do so with civility rather than continuing
acrimony.‖ 13
9.10 While it is important to note that parties to a boundary dispute have
the same rights of access to the courts as other persons, it is evident that such
disputes are ripe for ADR because the cost of litigating a property dispute, both
10 O‘Donnell ―Mediation Overview: Pleadings and What They Mean‖. <strong>Paper</strong>
presented at the Dispute Resolution Symposium organised by Engineers Ireland.
(Dublin, April 2007) at 2. Available at www.engineersireland.ie.
11 The Commission notes that sections 41 to 45 of the Land and Conveyancing Law
Reform Bill 2006 (which derives from the Report on the Reform and
Modernisation of Land Law and Conveyancing Law (LRC 74-2005)) provide for a
process in the District Court for carrying out work between adjoining property.
When enacted, these provisions may assist where disputes cannot be resolved
though ADR.
12 [1999] E.W.C.A. (Civil Division) (March 25, 1999).
13 [1999] E.W.C.A. (Civil Division) (March 25, 1999).
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