The recent case of Bradley v Heslin offers an enlightening (and enlightened) view of a sensible way forward in neighbour disputes and a handy summary of case law on everything from proprietary estoppel to lost modern grant in a very readable judgement – http://www.bailii.org/ew/cases/EWHC/Ch/2014/3267.html – by Mr. Justice Norris. It would be no bad thing if the important sections were read out by solicitors to clients in neighbour disputes at the first meeting.
As a mediator, I would obviously endorse the idea that mediation should be tried in every case, and tried early rather than as a last resort or a box-ticking exercise to protect against an adverse costs award; but I am beginning to be persuaded that compulsory mediation may be the right answer, despite its apparent clash with the concept of voluntary, collaborative problem solving that has always been the cornerstone of mediation. The trouble is that so often boundary and neighbour disputes have arisen from irrational beginnings (often unrelated to the specific matter in dispute); so it will usually be very difficult to persuade both parties to make the rational decision to mediate early without some arm twisting by the court.
I will watch with interest to see how the MoJ develops its thoughts on this.