This response is in respect of housing law cases and focusses particularly on possession claims.
1. The Housing Law Practitioners Association’s (‘HLPA’) current members include solicitors, barristers, advice workers, independent environmental health officers and other housing specialists, including mediators. It was set up to provide a forum for practitioners working in the housing field to share knowledge and information. Membership is open to all those who work in the field of housing law, for the benefit of the homeless, tenants and other occupiers of housing. Further information about our members and the work we do can be found at http://www.hlpa.org.uk
2. This response is in respect of housing law cases and focusses particularly on possession claims. HLPA has prepared a narrative response to the consultation/call for evidence because the questions in the call for evidence are mostly impossible to answer for our area of law. We cannot provide any statistical or empirical evidence because in our area of law, as far as we know, none exists. We do not believe that, given the tiny numbers of mediations that actually occurred, the possession proceedings pilot scheme was, in any sense of the word, an effective pilot upon which any favourable conclusions can be reached.
3. We must express our concern that the call for evidence reads as if only positive experiences or viewpoints are called for in order to justify a pre-ordained position on (A)DR. That is worrying to say the least. If (A)DR is to have any chance of being successful in the housing law sphere it will be because it is subject to the harsh light of critical thinking, in order to ensure that inbuilt power imbalances in the housing law arena are not replicated (or indeed amplified) by the model of (A)DR employed.
4. As a starting point we believe that the civil procedure rules and practice directions represent a well evolved procedural code for dealing with residential property possession disputes with protections for both parties. It is instructive to note that the Overall Arrangements required only a flexing of those rules to deal with the most significant public crisis in our lifetimes. The CPR and Practice Directions proved themselves both resilient and stable while being at the same time flexible and adaptable enough to cope with the most sever ‘stress test’ imaginable
5. Our co-chairs Marina Sergides and Simon Mullings were on the MoR’s Working Group as well the Mediation pilot steering committee.
Current mediation and ADR in the possession proceedings jurisdiction
6. We do not know of any compelling evidence of successful mediation schemes in the housing possession context. If it exists, we would be interested to see any detailed studies. The Mediation Pilot Steering Group was invited to two meetings with mediators from Ireland. It was quite clear to tenant advisers that the Irish mediation scheme was not a useful comparison to the one piloted in England. The Ireland mediation scheme appeared to be focussed on achieving possession orders with as little fuss as possible, rather than to do any real justice between the parties. We say ‘appeared to be’ because when questioned, the mediators could not provide any information about the number of possession orders that resulted from mediations compared with those that did not. In fact, the mediators gave the impression that agreeing a guaranteed possession order together with a longer enforcement period was the aim of the mediation. Furthermore, unlike the law in Ireland, the scope for possible defences available to tenants in England is far greater – thereby potentially depriving tenants of available defences.
The realities of mediation in the housing context
7. HLPA is not opposed to mediation being available to any fully informed party that wishes to use it. However, it does not accept the mantra that ‘any claim can be mediated’ or that, in the housing context, it is the ‘silver bullet’ in addressing the costs of litigation.
8. The stark reality is that it is difficult in the current legal context to regard mediation as the best way to resolve a conflict when one party wants and expects to regain possession of a property based asset and the other party wants to retain a home. The fundamental position is that owners/landlords are entitled to possession subject to some protections for tenants brought about by complex statutory and other legal provisions. It is not for the landlord to identify the potential limits of their claim, but for the tenant to assert through the law a right to remain in their home. We contend that in the current legal and social context, so called even-handed independent mediation is not sufficient to ensure that tenant’s legal rights are asserted and assured. The application of the rule of law is what is required in cases of proper
9. Further, the power imbalance is merely exacerbated by the overwhelming drivers of possession proceedings – nonsensical housing related benefits regime, lack of rent control in a massively overheated rental market caused by a chronic shortage of genuinely affordable rented accommodation, no fault eviction grounds (also a driver of higher rents) amongst many more. These macro issues are not ones that mediation or litigation can resolve – but the current civil jurisdiction in which possession proceedings operate give some protection (by way of consideration) against the harsh impact of them.
10. As above, we are not opposed to mediation or other ADR per se:
• Our principal view is that the drivers of possession proceedings in housing law and practice are a better target of resources, time and energy than mediation or ADR.
• We believe that housing law is overly complex and inaccessible to the majority of tenants without any proper legal representation. This goes to whether in general tenants can have the necessary full understanding of their legal rights going in to a mediation.
• When there is some attempt to address these issues and the power imbalance aforementioned, the number of possession claims are likely to reduce, making the availability of mediation (properly carried out and well resourced) a more viable and workable solution.
• In those circumstances early mediation coupled with independent expert/legal advice would be a benefit to both parties. We consider equality of arms to be an essential component of any mediation scheme and, accordingly, by ‘early’, we consider this to be after a proper consideration of the tenant’s case.
• At all times, however, where a tenant does not want to leave but the landlord wants possession, the claim will need to be resolved in a judicial context. (A)DR should not, as it appears to be in Ireland, be a mechanism to get tenants to accede to what only appears to be the inevitable if the matter is not properly investigated.
• It is wrong to think of the advice and representation of tenants as separate to dispute resolution. A huge amount of that work undertaken by duty advisors, solicitors and barristers is about seeing what can be achieved to avoid a trial of the issues and it is very often successful in that regard.
• HLPA has put on record its objection to representation-free adjudication procedures such as Justice’s Housing Dispute Service proposal.
The Possession Proceedings Mediation Pilot
11. Unfortunately, the mediation pilot was badly handled right from inception. Firstly, the LAPG and duty adviser representatives, under the impression that they were to undertake the scheme, did a huge amount of work to prepare to deliver it only to be ‘stood down’ as the plan for the pilot had changed overnight.
12. Secondly, the tendered scheme then started without key participants (the duty adviser cohort) being aware of its commencement. Furthermore duty advisers, who were to be the gateway to mediation and essential to its operation, were never given any information as to the workings of the mediation scheme beyond the method of making a referral. The impact of this was that duty advisors, who knew nothing about the scheme, struggled to have full confidence in it. Despite this, duty advisors were encouraged to make appropriate referrals and our Co-Chairs held public meetings and engaged in other communication to provide what little information there was about the scheme and urged duty advisors to engage with the pilot.
13. Thirdly, despite the regular calls, there was no clear view of what a successful possession proceedings mediation scheme would look like. Current housing law, unlike other jurisdictions, often does not provide clear routes of settlement between parties. There are decisions that only the courts can make after careful consideration of the evidence and upon reaching findings of fact– this is expressly set out in primary legislation for the very purpose of protecting tenants. It is impossible, therefore, to mediate ‘all housing cases’. Accordingly, it was essential to define how and why a ‘successful mediation’ was deemed to be.
There are many reasons for the low take up of mediation:
14. Below are a few clear and obvious reasons for the low up take:
• Poor practice and communications by MOJ/MHCLG
• Very low take up of advice on review dates
• Zero information from the mediators about how the scheme worked – the given reason was ‘commercial sensitivity’ which we struggle to make sense of
• Lack of confidence in the scheme by the parties themselves. The mediators were not properly trained in housing law and the time allocated to each mediation was unrealistic. Again, the comparisons with Ireland (and the short time given to each mediation) are of no use.
• From the small numbers of review date advice cases, there was little enthusiasm from landlords for the scheme. Our Co-Chair was only able to make one referral out of around a dozen attempts. Landlords simply wanted the court to make possession orders and they were not interested in mediating that or any other matter
15. The one referral our Co-Chair was able to make was not effective in resolving the matter – the court listed it for a hearing and then adjourned it because the mediators failed to come to an agreement that could be encapsulated in a court order.
16. It is well known now that the mediation pilot was a spectacular waste of time and money and was very badly handled.
17. Unfortunately, it means that little or nothing can be learned from the pilot except that (i) no pilot or scheme should ever be contemplated without proper discussion, consultation and joint working with all the relevant participants in possession actions and (ii) housing law is complex and mediators without housing law expertise will fail to deliver justice, fairness and resolutions which reflect the law and procedures currently in place.
What should happen now?
18. Below is a summary of how matters should progress:
• There needs to be a proper inquiry as to how the departments got it so very wrong with the first pilot.
• If there is to be a mediation service that is concerned not only with efficient resolution of cases but with access to justice, it can only be rolled out after there has been a proper, independent study of (A) DR in residential possession proceedings.
• Any proposed pilot must be entirely transparent and must include a complete statement of what constitutes success in the mediation/(A)DR.
• There needs to be proper recognition that mediation in other areas of law is not a realistic benchmark for mediation in possession proceedings in England. There is a reason why possession proceedings have their own rules and practice directions.
• If (A)DR is to be introduced, it should not be compulsory. Mediation in housing will have to be in operation for number of years before any decision as to whether it should be made compulsory can be made.
• Mediation in or immediately before possession proceedings should never be compulsory before a tenant has had the real and achievable opportunity to be advised as to whether they have a defence in law to the landlord’s claim.
• Any consideration of compulsory mediation must include provision for substantive help for renters struggling to pay rent, either in the mediation or in parallel to it. Otherwise, the mediation is just a ‘screen’ hiding fundamental problems – akin to ‘greenwashing’ in climate-change discourse and just as unhelpful.
• Any consideration of compulsory mediation must include provision for specialist legal advice for renters alongside consideration of any means to simplify the law in this area.
• A stark example – mediation without prior specialist tenant focused legal advice should never apply where the landlord is seeking a mandatory possession order. Mediation cannot deliver justice where one party is essentially told that the courts cannot assist them.
30 October 2021