Is Landlord and Tenant Mediation to Become Mandatory During Evictions?

A report published last month centring on whether people involved in litigation should be forced to take part in alternative dispute resolution (ADR) such as mediation, could potentially have considerable consequences for possession cases involving landlords and tenants.

Landlords and tenants in dispute have traditionally had the option to enter into alternative dispute resolution, but the new Compulsory ADR report by The Civil Justice Council, commissioned by the Master of the Rolls Sir Geoffrey Voss, could introduce new regulations to make it mandatory to mediate before going to court.

Earlier this year, a pilot ADR scheme was set up, encouraging landlords and tenants to try mediation, with a view to alleviating the pressure on the courts as eviction volumes were on the rise in the wake of the COVID-19 pandemic.

Rental Mediation Service

The Rental Mediation Service, provided by The Society of Mediators at a cost of £2-3 million, is set to run for six to nine months from February 2021 and is being operated jointly by the Ministry of Justice and Ministry of Housing, Communities and Local Government. It offers a free, dedicated service staffed by seven clerks to engage with possession claims as they progress through court, encouraging settlement without a hearing, where possible.

But whilst this scheme is voluntary, with both landlords and tenants having to agree to take part in the mediation process, landlords may feel obligated to make use of it, as there is a strong likelihood that judges making possession decisions would look favourably on those who do.

However, because there is no legal advice available during the mediation, duty solicitors have been reluctant to advise clients to mediate under the scheme.

‘ADR should no longer be views as alternative’

The Master of the Rolls says that ADR should no longer be viewed as ‘alternative’, but as ‘an integral part of the dispute resolution process’ He also believes that the process should focus on ‘resolution’ rather than ‘dispute’, and that this latest report could pave the way for a significant move towards earlier resolution.

Mike Morgan, Legal Division Manager at HF Assist and Mediation, says: “We’re pleased to see this report into the potential for compulsory ADR, and the recognition that forms of ADR, such as mediation, need to be made an integral part of the justice process.

“Doing this will make them more common and more widely used. For housing and tenancy disputes our experience shows that to be effective and get the best results, the earlier mediation happens the better.”

Tim Frome, Associate Director at Hamilton Fraser, says: “Achieving resolution through an ADR process is much quicker and more cost effective than using the courts.”

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To learn more about how we remove your burdens as a landlord, please get in touch with our helpful team.