The government has launched a Housing Possession Mediation Scheme for landlords and tenants, provided by The Society of Mediators (SoM) at a cost of £2 million. We have to say that it is odd to have chosen a mediation association like this to run the service. I would love to be positive about this development as I am a mediator after all. However, I do wonder whether mediation is the solution in such a black and white situation of possession hearings in which there is normally a power imbalance. What incentive is there for the landlord to resolve the claim? I just don’t see it.
The pilot will last for between six and nine months and is being operated jointly by the Ministry of Justice and Ministry of Housing, Communities and Local Government.
It will offer a free, dedicated service staffed by seven clerks to engage with possession claims as they progress through court and facilitate settlement without a substantive hearing, where possible.
The service will be voluntary and both landlord and tenants must agree to take part in the mediation process, although landlords may feel obliged to use it as judges making possession decisions are likely to look favourable on those who do.
Manage capacity
“This service aims to help further promote compromise to the benefit of all parties, sustain tenancies and manage capacity in the court system,” the tender notice states.
The Society of Mediators will have to manage the service which is designed to offer an online mediation service for all of the 170 county courts around the UK where possession cases are heard.
The new mediation service will offer landlords mediation with tenants they are seeking to evict during the 28 days between a court’s review of the files and the possession hearing.
The mediations will apparently be conducted by telephone, WhatsApp or Zoom and both parties will also need email access.
The SoM claims its mediation is simple, fast and efficient and that 84% of cases lead to a settlement.
But many eviction experts are sceptical and say that, although well intentioned the new service is too little, too late in most possession proceedings, and that mediation achieves more when completed much earlier on in a dispute. We would agree that the pilot faces an uphill battle. Most tenants are in this position because they simply cannot afford to pay so it is not clear to me why a landlord would volunteer to take part. Much better for them to wait until the hearing.
The Law Society poured cold water on the scheme:
A bid to ease the backlog of housing cases heading for court through a mediation pilot was today greeted with caution by the Law Society of England and Wales.
“Mediation has an important place in dispute resolution, however housing is such an essential life requirement that mediation cannot replace the usual routes of access to justice through the courts or take money from schemes that facilitate that access,” said Law Society president David Greene
“We know that evictions are on the increase. In January, the government announced another extension to the ban on evictions, although those with substantial rent arrears are exempt, meaning fewer tenants will be protected from eviction.
“Both the eviction ban and mediation have their place when people are facing homelessness in the middle of a pandemic. However, vulnerable and unrepresented tenants may feel pressured to undertake mediation and may be misrepresented, as mediators are not housing dispute specialists.
“The Law Society is particularly concerned that the pilot could impact on the sustainability of legal aid, particularly the Housing Possession Court Duty Scheme (HPCDS), which provides an emergency solicitor on the day to anyone facing eviction proceedings.
“The £3 million allocated to the pilot would be more usefully channelled into the HPCDS and early legal advice, which ensures tenants have the access to justice and specialist legal advice that can stop them being evicted.
“Despite calls from across the housing sector to the Legal Aid Agency and the Ministry of Justice to ensure the continued availability of funded legal advice, investments have not been made.
“Mediation should not be seen as the whole solution to the current court delays and backlogs. Any remedy to these issues must focus on ensuring all tenants have access to courts, court services and specialist legal advice.
“The mediation pilot must therefore be approached with caution and be more explicit about what it intends to do to help the public achieve justice. It must go beyond simply clearing the backlog and move forward with the struggles of the housing sector at its core.”
I also remain to be persuaded and do not envy the SoM’s role. They may well get their and Mediation’s fingers burnt. Let’s hope not!