Pilot suggests mediation in possession cases unpopular

Tenancies: Low take-up of pilot

The government’s tenancy mediation service pilot, which originally hoped to have 3,000 successful resolutions, ended up with just four, a review published this week has shown.

Only 22 cases were referred to the pilot by duty advisers, of which nine were mediated and four were classified as successful in terms of an agreement being reached between the landlord and tenant.

Just one of the four resulted in an order based on the mediation by the judge and in another the mediation agreement was rejected. In a third, a suspended possession order was made and in the final case the claim for possession was adjourned.

The rental mediation service pilot was a joint venture between the Ministry of Justice and the Department for Levelling Up, Housing and Communities.

It took place between February and October 2021 after being extended in the hope more referrals would be made. It provided free mediation for landlords and tenants during the landlord possession process.

The pilot had ambitious beginnings. It was estimated that up to 10,000 cases would be suitable in the first six months of 2021 and that 3,000 of these would be successfully resolved by mediation.

However, from the start things did not go well. Originally the service was due to be assessed at the same time the pilot was running but no bids were submitted to an invitation to tender for the evaluation.

In the event, this was just as well. The review concluded: “Such an evaluation would have proved inappropriate in the context of the pilot’s low uptake.”

Suspicions were voiced during the pilot that the government hoped to reduce legal aid on the strength of the results. Doubts were also expressed that mediation in possession proceedings was possible or appropriate.

In an effort to bump up the data, 64 in-depth interviews were carried out with everyone involved.

The government blamed the pandemic along with a lack of awareness of mediation among tenants and “what it could offer” for the low uptake.

It continued: “Awareness and communication between the different organisations involved in the pilot was not optimal at times. This dampened referral volumes.”

It was the first time mediation had been tried in the landlord possession process and the pilot results did little to suggest it was possible to find a mediated solution between the two parties once a claim was made to the court.

Respondents raised concerns that mediation without legal representation could lead to tenants settling cases to their detriment. One judge highlighted the complexity of housing law in mediation as reinforcing “why at this stage of the process, it’s just inappropriate to look at mediation in almost all cases”.

The issue of when a mediation should take place was considered by the review, with respondents feeling strongly that it could be more effective at an early stage. But the authors said this optimism had to be balanced with research that showed people with financial problems often waited until the situation was critical before engaging.

There were signs the researchers on behalf of the government were not deterred by the poor take-up.

They concluded: “These findings will be used by the government to determine how it can best facilitate or encourage non-adversarial forms of dispute resolution, such as mediation, as part of the landlord possession process and more widely.

“We will seek to understand, and therefore avoid replicating, those factors which reduced the effectiveness of the pilot, whilst retaining and building upon those aspects which worked effectively.”

    Readers Comments

  • Anonymous says:

    “We will seek to understand, and therefore avoid replicating, those factors which reduced the effectiveness of the pilot, whilst retaining and building upon those aspects which worked effectively.”

    That’s encouraging then. I wonder which parts specifically were regarded as “aspects that worked efficiently”?

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