Marina Sergides examines the constraints within which a new mediation pilot will operate.
Mediation has a role to play in almost every area of law and can be of great benefit to all parties involved; this includes the field of housing. The housing mediation pilot, introduced on 1 February 2021 to ease the possession claims backlog that has the potential to overwhelm the county court, has only just begun. It is far too early to tell whether it will be successful, or indeed, to know what a ‘successful’ scheme looks like. It is unclear who is monitoring it during the pilot period and how. Will the scheme be judged by the number of possession cases that are taken ‘out of the system’? Or will the scheme be judged by the number of possession orders that are made, or the number of people who manage to remain in their homes? Or is there some other metric? We don’t know.
There remain, therefore, real concerns about whether the scheme, as introduced, properly understands the full housing law context.
Firstly, it has been introduced in an area of law that regularly concerns very vulnerable people, many of whom are experiencing benefit issues or a complex web of mental health, family breakdown and/or community care issues. It has also been introduced against a backdrop of a shrinking body of legal aid providers offering housing advice, often with parties experiencing loss of employment with significant increases in debt – this relates to both tenants and landlords. These are major structural issues which, to be frank, cannot be addressed within a two-hour mediation. But failing to address them in any meaningful way – with proper debt and employment advice – does not assist the mediation process either. There is far more scope for agreements where there is some support for these underlying problems – legal advice/representation, crisis navigators or otherwise. Without such assistance, a significant number of housing cases will be removed from accessing mediation, and the benefits of it, altogether.
Secondly, there should be some role for legal advice in the mediation process – by which I mean paid legal advice. Not only is housing law complex, with potential defences only being identifiable by specialist advisors, mediation agreements run the risk of giving rise to unintended consequences. Parties, particularly tenants, may feel the need to negotiate an outcome that either cannot be made by the court or potentially affects their future relationship with their landlord (or in fact the duties owed to them by local authorities). Further, as has been expressed by others, tenants may feel that the way to avoid a possession hearing is to make unrealistic offers regarding the repayment of rent arrears. It is unclear whether these outcomes would still be considered successful mediations, even if the claim is removed from the ‘court list’.
Thirdly, despite being experienced and knowledgeable in early advice and housing law (including negotiating on behalf of tenants at an early stage), Housing Duty Advisors have a relatively minimal role in the mediation scheme. They are required to identify suitable cases for referral but, as I understand it, there is no further funding under their Legal Aid Contracts specifically to advise tenants as to the remit of any agreement in the mediation or, indeed, for the time spent in identifying a suitable case for referral.
With some of the aforementioned addressed, this pilot could be a valuable opportunity to demonstrate how alternative dispute resolution methods work quickly for those who need a solution. To achieve this, it would be good to know, even now, the criteria adopted to assess and evaluate the success of the mediation pilot scheme.
In the meantime, it is hoped that the potential shortfalls identified in this blog are minimised to ensure that the parties obtain a real benefit from the pilot.