We have always advocated an opt out system of mediation in the Court system, particularly in respect of property disputes, disrepair claims and landlord and tenant claims. We run the Manchester Mediation Pilot and also are on the Civil Justice Council’s ADR Liaison Committee. We set up MyForte Property Mediation Services to deal with disrepair claims, but the uptake has been disappointing. We agree with the recommendations in Justice’s report Solving Housing Disputes in relation to reforming the current system.

The following consists of extracts from the Justice Report for which I am grateful. I am seeking to highlight the essential points.In the section on ADR it states that:

“Notwithstanding its expansion across the justice system and agreed benefits, The uptake of ADR in housing disputes remains unreasonably low. This section of the report explores how that might be changed. It takes a broad view of ADR, as including negotiation, mediation and early neutral evaluation. Quite some time is spent on consideration of pre-action ADR, engagement and negotiation, which is where a huge amount of work is currently done.”

They suggest:

Pre-action engagement

• We recommend the Civil Procedure Rule Committee revisit pre-action protocols for housing disputes, with view to simplifying them and making them more user friendly for both practitioners and the significant number of people who come before the courts without housing advice and representation.
• The pre-action protocols for social housing and mortgage possession claims encourage parties should be revisited for clarity and accessibility for non-lawyers.
• We recommend all court claim forms for possession which involve pre-action negotiation be strengthened to require applicants to adduce evidence or include details as to how they have engaged with the pre-action protocol requirement to work with a tenant or borrower to resolve the issues giving rise to the prospect of repossession.

  In our view, the desire to establish longer term, more sustainable relationships between tenant and landlord in the sector should inspire similar dialogue between private landlords and tenants before possession claims are initiated. The reform of statutory grounds for possession presents an opportunity to require that activity in pre-litigation behaviour. One way to do so would be the introduction of a simple pre-action protocol for private possession claims, designed with the needs of non-legally represented landlords in mind. This might be a protocol that amounts to a checklist, with a list of actions a landlord is required to carry out before initiating proceedings. These could include:

• a requirement to contact the tenant to find out what the cause of rent arrears is;

• a requirement to negotiate with the tenant to secure repayment; and/or

• issuing an email or letter demand for repayment within a specified

timeframe.

That protocol could be issued to a tenant with the bundle of documents issued at the commencement

We recommend that the Civil Procedures Rules Committee (CPRC) should consider whether a simple, easy to follow pre-action protocol for private possession claims should be established as part of reforms under the Rented Homes Bill

Private rental possession claims are not the only area where our Working Party considers more could be done at the pre-action stage. They recommend the establishment of pre-action requirements before an application for enforcement of a charging order is brought. Those requirements, whether under protocol or otherwise, should require a creditor to engage proactively with the debtor and those in the household, to assess whether enforcement will bring hardship and if so, to contact local authorities for assistance.

The 2015 Civil Court User Survey included questioning around action conducted before a claim. 40% of participants said they had not considered mediation prior to the claim and only 28% of respondents indicated that they took up mediation before starting a claim, Ministry of Justice, ‘Civil Court User Survey’, Findings from a postal survey of individual claimants and profiling of business claimants’, (MOJ Analytical Series, 2015) Table 6.2 available at https://assets.publishing.service.gov.uk/governme nt/uploads/system/uploads/attachment_data/file/472483/civil-court-user-survey.pdf

They say that “changing the definition of “legal help” to capture advising and engaging with ADR at the pre-action stage is crucial to uptake and efficacy, and should be available to encourage ADR as early as possible in the process. We recommend that the definition of “legal help” under legal aid contracting for housing should be changed to capture and remunerate acting and advising through pre-action ADR processes.

While the removal of practical obstacles to pre-action ADR uptake should improve the position, the biggest issue is that there is no coherent, structured method for uptake of pre-action ADR in most housing disputes. Solicitors on our Working Party explained that pre-action ADR is applied on an ad hoc basis, generally at the initiation of the wealthier party, as those who are legally aided are not funded to pay for pre-action ADR, nor act for parties through that process

The Civil Justice Council has recommended the establishment of a new mediation/ADR website called “alternatives”, which would describe the various forms of ADR available, illustrate each by video and indicate how quality guaranteed ADR providers could be accessed.

Civil Justice Council, ‘ADR and Civil Justice: Final Report’, November 2018, para 6.11 available at https://www.judiciary.uk/wp- content/uploads/2018/12/CJC-ADR-Report-FINAL-Dec-2018.pdf

Expanding, for instance, on what is currently offered by the Civil Mediation Council, which offers “Civil & Commercial” and “Workplace” mediation at https://civilmediation.org/mediator-search/

We recommend the Civil Justice Council consider how awareness of and uptake of ADR at the pre-action stage in housing disputes can be promoted and encouraged. Consideration ought to be given as to how court mediation services can be properly funded to allow them to reach their full potential, including the need for mediation and other ADR types to be made more widely available to the parties at the pre-action stage.

The general position in civil disputes is that the losing party bears the winning party’s costs of litigation, subject to certain qualifications. In deciding costs orders, the court must have regard to the conduct of the parties during the litigation, including compliance with relevant pre-action protocols or practice directions and should not allow costs that are unreasonably incurred,

The Court of Appeal decision in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 sets out a list of factors relevant when deciding whether a refusal to mediate is unreasonable, including (a) the nature of the dispute (b) the merits of the case (c) the extent to which other settlement methods have been attempted; (d) whether the costs of the ADR would be disproportionately high; (e) whether any delay in setting up and attending the ADR would have been prejudicial; and (f) whether the ADR had a reasonable prospect of success. The recent report from the Civil Justice Council on ADR and civil justice criticised these “Halsey Guidelines” as too generous to parties and recommended the circumstances where a refusal to mediate is permissible ought to be narrowed.

The implications of a failure to engage in ADR arises at the conclusion of litigation at the costs assessment stage. Arguably, this is too late. The Civil Justice Council has suggested that there could be a form of interim sanction available to express disapproval of a refusal or failure to mediate by parties at the interim stage.

We agree with this proposal, subject to the caveat that sanctions at an interim stage can only be introduced if pre-action ADR is meaningful and practical obstacles to engagement, which we have outlined above, are removed. Specialist providers must be widely available and accessible, it must be more prominently positioned in the dispute resolution process, and publicly funded advice and representation should be available.

We recommend that, subject to there being an appropriate level of funding for ADR providers and practitioners at the pre- action stage, the Civil Procedure Rule Committee should consider whether costs sanctions for failure to engage with ADR pre-action ought to be introduced earlier in the case management process.

The intention is to influence parties’ behaviour earlier in the ADR in the court and tribunal process.

A directions questionnaire that does not require parties to articulate why their claim is not suitable for mediation is likely to see the option disregarded by parties. Assistance for parties could be derived from a list of non-exhaustive reasons as to why mediation might not be appropriate, such as urgency, third party interests, etc.

The point is to emphasise that in most cases, and particularly where the housing relationship is ongoing beyond the dispute, the matter is likely to be suitable for mediation, or another form of ADR. We recommend the directions questionnaire for all tracks should require parties to state the reasons why they do not wish to pursue ADR. The questionnaires could include a non-exhaustive list of potentially acceptable reasons as to why certain types of disputes may not be suitable for ADR, which implicitly makes clear that most disputes are suitable for ADR.

Practitioners on our Working Party expressed the view that the stay initiated when parties pursue mediation in the fast and multi-track can be a disincentive to uptake, as some in the profession continue to view mediation as a necessary hurdle or tool for delay before continuing to court-based adjudication. ADR is most effective where the prospect of court-based adjudication looms over it.

Allowing a stay on proceedings risks parties failing to engage with ADR on a good faith basis. As an alternative, should parties wish to engage in mediation outside of the court process, a judge (or in the future, authorised court or tribunal staff member) should look to set down a case management timetable in advance, which sets out timetabling and deadlines, should the ADR process be unsuccessful.

The approach must be one where ADR is part of an active approach which case manages a dispute to resolution. We recommend that the Civil Procedure Rule Committee should review whether a stay for mediation disincentivises its use, and whether mediation should be ordered as part of case management timetabling with subsequent filing and case management dates post-mediation. Consideration ought also to be given to how active case management can ensure parties engage with the mediation and any subsequent deadlines.

Unless courts and tribunals perceive mediation or ADR as a normal step in the dispute resolution process, it is liable to be marginalised. One way to ensure the take-up of mediation is at the forefront of judicial case management is to include a stronger coercion within procedure rules. We recommend that both the Civil Procedure Rule Committee and the Tribunal Procedure Committee should review all standard directions which involve housing disputes to include a presumption for parties to use ADR.

We recommend legal aid practitioners should not have to obtain prior authority from the Legal Aid Agency to engage in ADR but should be free to pursue it as part of an ordinary legal aid certificate.

The Government’s desire to abolish no fault eviction and promote longer tenancies sets a framework to try a similar approach in housing disputes, where longer, healthier tenant-landlord relationships could be sustained through the normalised use of ADR techniques in court and tribunal processes.

In those circumstances, we ask whether all courts and tribunals dealing with housing disputes should have ADR as the first port of call within the dispute resolution pathway and be empowered to order non-consenting parties to engage with an ADR process. Uptake of ADR generally remains tethered to party consent,

We recommend that ADR be more strongly encouraged by amending the procedural rules which apply to the current housing disputes system. Rules committees for the civil courts and First-tier Tribunal ought to consider how the rules could more strongly favour a presumption of or direction to ADR before any formal, adjudicative process takes place. If those rules change, tribunal and court case workers and/or judges should be able to direct parties to engage in all forms of ADR, including in circumstances where there is no consent