The Housing Law Practitioners Association (HLPA) has voiced concerns over a Ministry of Justice consultation on Dispute Resolution in England and Wales.
It said in its response 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 alternative dispute resolution (ADR).
“That is worrying to say the least. If ADR 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 ADR employed.”
The HLPA said the consultation had - as far as housing was concerned - focussed particularly on possession claims.
“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,” it said.
The response said the civil procedure rules and practice directions represented a well evolved procedural code for dealing with residential property possession disputes with protections for both parties and were “flexible and adaptable enough to cope with the most sever ‘stress test’ imaginable”.
It said there was little current practice to draw upon as “we do not know of any compelling evidence of successful mediation schemes in the housing possession context”.
The HLPA complained that the MoJ’s Mediation Pilot Steering Group was invited to two meetings with mediators from Ireland despite it being “quite clear to tenant advisers that the Irish mediation scheme was not a useful comparison to the one piloted in England’ as the Irish 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”.
Although not opposed to mediation for any fully informed party that wished to use it, the HLPA rejected “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”.
The response explained: “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.”
A landlord’s right to possession subject to tenant protections meant “so called even-handed independent mediation is not sufficient to ensure that tenant’s legal rights are asserted and assured”.
Drivers of possession proceedings, such as the housing benefits regime, no fault evictions and lack of rent control were not issues that mediation or litigation could resolve, “but the current civil jurisdiction in which possession proceedings operate give some protection (by way of consideration) against the harsh impact of them”.
The HLPA said housing law was “overly complex and inaccessible to the majority of tenants without any proper legal representation”.
It said only when some attempt was made to address the ‘power imbalance’ behind possession proceedings would the availability of well-resourced and properly conducted mediation become a more viable and workable solution.
It said a mediation service should only be established after an independent study of ADR in residential possession proceedings and should not be compulsory.