In this blog, David Watkinson of the Garden Court Mediation Team considers the review of the Mediation Pilot, which had been put in place to deal with possession claims post-pandemic.
In the Beginning
On 22nd February 2023, the Ministry of Justice and the Department for Levelling Up, Housing and Communities published the Rental Mediation Service Pilot-Post Implementation Review. The Pilot had been run in the county courts between February and October 2021. Part, at least, of the thinking, following the lifting of Covid restrictions on the processing of possession claims, was that there would be an avalanche of hearings and that diversion to mediation would reduce the resulting pressure on the courts. Some 10,000 referrals to mediation with a success rate of 3,000 were estimated.
In the event only 22 claims were referred to mediation and in only nine of those did mediation take place. Only four mediations were successful, in the sense that agreements were reached, although we are not told, naturally, what those agreements were and one of them was not acted on by the county court possibly because it could not lawfully constitute a court order.
No effort to sugar the pill can disguise the failure of this exercise. So what lessons can be learned? Identifying those could, at least, save something from the wreck, particularly as ADR/mediation has been so enthusiastically promoted by members of the judiciary (especially the current Master of the Rolls) and sections of the mediation world.
What on earth went wrong?
A number of factors are identified by the Review, some particular to the effect of the pandemic. In considering the others it is best to bear in mind that the possession claims involved were mostly set in the private rented sector, largely resulting from rent arrears and concerned many where the court was obliged to grant a possession order to the landlord, provided procedural requirements were met, as the tenancies were Assured Shortholds (s21 Housing Act 1988 as amended by the Housing Act 1996).
Principally, those factors were:-
Delay. The prospect of referral to mediation arose only at a late stage in the proceedings ie after a claim had been issued, and by 28 days before the hearing, when the claim was reviewed by a court duty adviser. By that time the parties’ positions were generally fixed.
Uncertainty/Ignorance. The process required suitability for mediation to be assessed by a duty adviser at the review stage. There were very few referrals. This could have been down to a lack of information about mediation, or concern as to the nature of the mediation offered, on the part of the duty adviser or the parties. It was a requirement that there be consent by both landlord and tenant to mediate. No consent, no mediation. There was no specific provision for one-to-one advice to be given to the parties at the review (unless the tenant had been able to seek advice through the Housing Possession Court Duty Scheme-the landlord was usually not present at the review, consent being sought later by court staff). Nor was there provision for the parties to be advised during the mediation itself (unless they obtained it themselves).
I would also underline that assuming the duty adviser was aware of the general pros and cons of mediation and had communicated them, s/he might well have concluded that mediation was not suitable or appropriate. Moreover, the duty adviser or the parties might reasonably have concluded that the sort of “mediation” on offer was not suitable. It consisted of a 1-hour session with one of a panel of mediators who “had limited detailed understanding of housing law” (p.17 Review) or of its procedure (it may be assumed).
This system just did not provide sufficient time to come to an agreement. The consequences of ignorance of the law could have been serious. To agree to possession would, almost inevitably, have led to a tenant being disqualified from housing assistance from the local authority on grounds of having made her/himself “intentionally homeless” (s 191 Housing Act 1996).
In my view the lessons are as follows:-
(1) Start any such introduction of mediation into the court system by considering what sort of cases are suitable for mediation. Do not start by assuming mediation is suitable for all types of cases or that it is there to solve particular problems affecting the courts.
(2) Ensure that the mediation procedure adopted is one that will enable agreement ie sufficient time, mediators of experience and available advice for the parties.
(3) Ensure that the judiciary and the court staff are aware of the availability of mediation, the procedure adopted and the pros and cons of its use.
There are other desirable features eg encouraging consideration of ADR/mediation prior to issue of claim (after notice seeking possession or even before) via a possession claims protocol and allowing for flexibility as to when the referral to mediation takes place.
My view, based on my own, including recent, experience is that mediation in housing is suitable for the more complex cases (such as possession cases with a long history, Anti-Social Behaviour or rent arrears owing to different causes, claims involving a number of different tenancies and the same landlord, disrepair, harassment, adverse possession, TOLATA and boundary disputes) and not just for the most simple. And that the judiciary is quite capable of judging when is the appropriate time for referral.
And the conclusion
Have these lessons been learned? Currently, we are awaiting the result of the consultation (Increasing the Use of Mediation in the Civil Justice System – closed October 2022) on the compulsory referral of all small claims to mediation (ie claims up to a value of £10,000). The signs are not good!