10 Feb 2021

The Law Society is raising concerns about the government’s mediation scheme announced at the time of the last eviction ban decision.

The government says it will offer mediation as part of the possession process to encourage landlords and tenants to reach a mutual agreement, avoiding court proceedings if possible. A pilot mediation project started last week.

“Helping to resolve disputes through mediation will enable courts to prioritise urgent cases, supporting landlords and tenants to resolve issues quickly without the need for a formal hearing. The mediation pilot will work within the existing court arrangements in England and Wales” says Housing Secretary Robert Jenrick.

But the Law Society of England and Wales has issued a warning.

President David Greene says: “Mediation has an important place in dispute resolution, however housing is such an essential life requirement that mediation cannot replace the usual routes of access to justice through the courts or take money from schemes that facilitate that access.”

He continues: “We know that evictions are on the increase. In January, the government announced another extension to the ban on evictions, although those with substantial rent arrears are exempt, meaning fewer tenants will be protected from eviction.

“Both the eviction ban and mediation have their place when people are facing homelessness in the middle of a pandemic. However, vulnerable and unrepresented tenants may feel pressured to undertake mediation and may be misrepresented, as mediators are not housing dispute specialists.

“The Law Society is particularly concerned that the pilot could impact on the sustainability of legal aid, particularly the Housing Possession Court Duty Scheme, which provides an emergency solicitor on the day to anyone facing eviction proceedings.

“The £3m allocated to the pilot would be more usefully channelled into the HPCDS and early legal advice, which ensures tenants have the access to justice and specialist legal advice that can stop them being evicted.”

Greene says that despite calls from across the housing sector to the Legal Aid Agency and the Ministry of Justice to ensure the continued availability of funded legal advice, investments have not been made.

“Mediation should not be seen as the whole solution to the current court delays and backlogs. Any remedy to these issues must focus on ensuring all tenants have access to courts, court services and specialist legal advice.

“The mediation pilot must therefore be approached with caution and be more explicit about what it intends to do to help the public achieve justice. It must go beyond simply clearing the backlog.”

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