It has been reported that the mediation pilot for rental cases was not successful: in this article we look at the reasons for this
According to a review 22 landlord and tenant disputes were referred to the mediation pilot that ran for several months – and only four were resolved successfully.
The rental mediation pilot was introduced in February 2021 as part of the court process for housing possession cases and was designed to sustain tenancies and reduce pressure on the courts. It ran until October 2021.
The government estimated that up to 10,000 cases would be suitable for mediation in the first six months of 2021 and that 3,000 of these would be successfully resolved. However, according to the review only 22 cases were referred for mediation. Of these, nine were mediated. Four were classified as successful.
The review suggests a ‘multitude’ of structural, behavioural, process and contextual factors contributed to the low uptake.
I think that 5 lessons can be learned:
Lesson 1: Timing
Timing is important: To be effective mediation needs to take place as close to the outset of a dispute as possible. By the time a landlord has issued a claim for possession it is unlikely they will want ti compromise. Under the pilot, if agreement was not reached at the review stage, the case was deemed suitable for mediation, and both landlord and tenant agreed to mediation, the case could be referred for mediation. The Review considered this point:
“This pilot utilised the unique opportunity provided by the Overall Arrangements to embed mediation within the landlord possession process at the county court. The additional Review stage provided a new juncture in the court process, prior to the substantive hearing, at which tenants could receive advice and be signposted to the mediation offer, and the mediation needed to be positioned within the existing framework and court process.
As far as the overall arrangements are concerned almost the only opportunity for mediation was between review and hearing” Civil Servant. However, many respondents indicated that mediation, when used as part of the landlord possession process, may be more effective for a larger number of disputes at an earlier stage, before court proceedings have commenced. Amongst many respondents, there was a sentiment towards ‘the earlier the better’ although different suggestions were made regarding where exactly and what form it should take.
Some respondents suggested that the ideal location for mediation would be part of a pre-action protocol before a claim was made. Others suggested that a pre- action process should be prescribed for private landlords before a possession notice has been issued (as exists for social landlords) which could, for example require the landlord to try to agree repayment of rent arrears with the tenant as soon as they start to accrue.
When asked about whether mediation could have worked at this stage. One judge responded: No, I don’t think so. I think… when you’ve got a binary outcome, it’s difficult. There’s nothing to mediate. It’s either X or Y.” – Judge
Some participants also felt the placement of the mediation pilot was not optimal as a means to reduce pressure on courts. “If mediation has been preferred as a solution to reduce demand for courts, for judicial time, for all of that, why do we wait until the point at which they’re already involved in a court process? Why, why doesn’t it appear at a much earlier point?” – Duty Adviser
Other respondents suggested that mediation was best placed later in the court process. It was felt that offering mediation pre-proceedings would result in a very high volume of more easily resolved cases being offered mediation that would otherwise have been resolved between the parties.
Also, the Duty Advice scheme could not be adjusted to an earlier point. In addition, it was felt that tenants are more likely to engage later in the process. This is because the situation becomes more serious and more tangible the closer they get to the possibility of losing their home through a possession order or a bailiff warrant.
The jury is very much out as to where is the best point to intervene. Some people argue that it’s definitely pre-action, because that’s when you’ve got the best chance of sustaining the tenancy. [Others] argue very strongly that tenants won’t engage with the process until they’re kind of forced to do so.” -Civil Servant
As noted, research evidence does highlight how those with certain legal problems (money problems in particular) are often reluctant to reach out for early help, sometimes feeling a sense of shame, thinking their situation might improve, or because they become paralysed with stress and anxiety. Action is sometimes only taken at a late stage or when a trigger point such as eviction is reached, by which point the opportunity for negotiation may have passed. An offer of help at this stage can be welcomed, as one tenant put it:
”Both my husband and I were relieved because [we felt] okay, you’re not going straight to the possession hearing tomorrow. You’ll have the chance to hopefully work it out.” -Tenant Some suggested that mediation should take place as late in the court process as possible because tenants do not engage until the point at which their home is at immediate risk. This may mean that they attend the substantive possession hearing- when the tenant can receive legal advice from a Duty Adviser and the judge decides whether to make a possession order – or perhaps later, after the possession order provided by the judge has expired and the landlord has applied for a warrant for a bailiff to possess the property. A tenant can make an application to suspend this warrant, which is heard at a further court hearing.
“A few of them (defendants) turn up and see (the) duty solicitor on the day, but more often it’s a bailiff’s notice. It’s the point where they then get some advice and make any applications. So giving it to them earlier in the process…doesn’t really achieve anything because people…don’t engage earlier in the process.” – Judge
However, whilst some tenants may engage at this late stage of the process, there may be less goodwill on the landlord’s side (see Behavioural Factors below). Landlords will have waited for the notice period to expire, been through the court process over several months incurring court and legal fees, whilst any rent arrears are likely to have continued to accrue.
There is also likely to be less time to resolve underlying issues such as debt problems or access to welfare benefits, although the government’s Breathing Space7 scheme, where applicable, does provide for a 60 day period during which enforcement action, including the repossession of an individual’s home, cannot proceed where an individual is placed in the scheme by their debt advisor.
Possession statistics show that the majority of cases do not progress to the stage at which possession is enforced by a bailiff, which indicates that the tenant must have taken some action – for example by moving out or reaching an agreement with their landlord – even if they do not formally engage with the court process. The statistics do not, however, show how these situations were resolved or the outcomes for the tenant. Lack of tenant engagement also potentially points to weaknesses in processes to successfully engage them and encourage active dialogue. In relation to review hearings, one adviser who responded to this study suggested that attendance by tenants could have been increased if they had been able to call them in advance.
Lesson Two: Integration
We learned from the Manchester Mediation Pilot that unless judges make referrals, or there is some kind of integration of ADR, the parties aren’t going to mediate.
Lesson Three: suitability
Contrary to often expressed views, mediation is not suitable in every type of case. TOLATA or cohabitation disputes, contract disputes, inheritance disputes and boundary disputes are well suited to mediation. Where a landlord wants possession of a property and rent is overdue there is little that can be done to compromise. The only thing a tenant can offer is possession and payment of arrears.
The Review found that “Respondents indicated that there are sometimes limited opportunities for a judge to find a compromise in possession proceedings. Mandatory grounds for possession leave no room for negotiating once the case has reached the final hearing. In these cases, the judge must grant possession, and an outright possession order is usually granted. Even if a compromise was found through mediation, the case would be required to be overridden by the judge where the ground can be proven. However, in these cases we would expect the landlord to ask the court to adjourn the case if mediation led to an agreed outcome.”
Lesson Four: Communication
Communication is key: The review also identified various communication barriers. For instance, tenants were not always informed if their landlord had declined to attend mediation. Duty advisers sometimes struggled to get information on how the mediation service worked. Parties need to be given information about the mediation process and what it entails.
Lesson Five: lack of legal advice
It can really help in a mediation for parties to have legal advice so that they understand the strengths and weaknesses of their cases. “Where cases progress to a substantive hearing, tenants are offered free legal advice via the Housing Possession Court Duty Scheme on the day of the hearing. While the Overall Arrangements were in place, the Review date provided an additional opportunity for tenants to access legal advice through this scheme. A Duty Adviser can inform the client whether they have a valid defence to the landlord’s possession claim (for example the landlord failed to comply with their legal responsibilities when making a claim or provided insufficient evidence). This ‘handholding’ of clients was seen by many respondents to serve a vital role of protecting vulnerable clients from a complex and consequential legal process.
Whilst those who accessed the mediation pilot were able to receive duty advice at the Review date – and could only be signposted to the pilot by the Adviser – tenants and landlords who could not afford privately funded lawyers did not have any legal advice during the mediation itself. This was perceived by some respondents as putting participants at risk of agreeing to something that could undermine their legal rights. This is because, if the case was resolved during the mediation process and the case did not progress to a full hearing, the tenant would have agreed to an outcome – such as a repayment plan to pay off outstanding arrears – without having received legal advice on whether this was the optimal or most beneficial option available to them. This contrasts with a full possession hearing at which, as detailed above, the tenant can receive free legal advice through the Housing Possession Court Duty Scheme. However, the Duty Adviser was able to consider the circumstances of the case when deciding whether to refer the tenant to mediation, while in practice a substantive hearing was listed in all four cases which went through the mediation process.
As well as potential defences being missed during the mediation process, concern was also raised around the issue of intentional homelessness. Under the Housing Act 1996 a person may be treated as intentionally homeless if they deliberately did something as a consequence of which they ceased to occupy accommodation that was available, and it would have been reasonable for them to have continued to occupy. An applicant will also be intentionally homeless if they enter into an arrangement resulting in them giving up accommodation in order to access the homelessness duties. Local authorities have to judge whether an applicant is intentionally homeless on a case-by-case basis. Participants in this Review raised the risk of this potential outcome be.”
Lesson 6: length of time
Time allowed is key, We find that 1 hour is insufficient in most consumer mediations. 2 hours works better. The Review found that: “Contractually, the mediation needed to be carried out in the 10 days following the Review and referral, with the outcome report submitted to the court no later than 3 days after the mediation session, to allow the court a period of at least 15 days to delist the substantive hearing if a judge agreed that it was no longer required.. It was reported that, at least in the context of housing possession, the mediation itself requires a reasonable amount of time to be carried out effectively. Some respondents thought that an hour was not enough time to carry out mediation properly. Therefore, there may have been issues, if the pilot had had a higher level of uptake, with workload and meeting demand within the specified timeframes. “I think limiting it to one hour per person it was unrealistic. I’ve got to say it put too much pressure on people to form a solution, rather than giving people time to talk. If you…try and resolve something that people couldn’t agree on over a two-year period in one hour, including filling in all the forms, finding out the background too.” – Mediator “By the time I’d managed to get the agreement drawn up, it was two and a half hours in. [That was] a pretty speedy mediation in itself…So two and a half hours is realistic. Two hours to mediate, half an hour sort of a final bit.” – Mediator.” Moreover in our experience more time is needed when a party is not represented or advised.
Conclusion
Unfortunately the pilot was not a success. This does not mean that mediation does not work or is unsuitable in possession cases, just that it needs to be offered at an earlier point and tenants need more information and guidance about it.
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