In a recent blog in which I considered the all-round economic and social benefits of community mediation schemes, I focused on individual issues such as neighbour disputes. I also alluded to some of the other possibilities that mediation offers. These include the resolution of rent arrears disputes. This blog demonstrates that civil mediation is a workable and very cost-effective alternative to landlords simply taking their tenants to court and seeking to evict them. Considerable benefits will accrue both to landlords and tenants.
In the private sector at least, rents are generally high and in reality, unregulated. There is little in the way of security of tenure in the private sector and, aside from the deposit protection scheme tenants have little redress. Like their public-sector counterparts (i.e. those who rent from local authorities or housing associations), private tenants either cannot access legal advice because they cannot afford it or because in the last 20 years there have been radical cuts to the Legal Aid budget. The court processes that are in place are rudimentary and to outsiders they often come across as overly formal and difficult to understand. In my experience the courts are often sympathetic to impecunious or vulnerable tenants. However, County Courts without difficult judges are of course expected to follow the law and they may ultimately have no option but to make a possession order.
In some instances, non-payment of rent will be attributable to wilful failure on the part of a tenant. However, in my experience, in many cases difficulties often arise because of the complexities of the state benefits system that supports people partly by paying modest levels of weekly income to those who meet the often quite rigourous criteria and partly by assisting claimants by paying some or most of their contractual rent.
In practice, many tenants in both the public and private sectors find that their arrears accrue not because of any neglect or failure on their part but on failures and delays in the housing benefit system. Landlords who quite reasonably expect to receive their rents on the due dates often become concerned and, even in cases where it is widely acknowledged that individual tenants are not to blame for what has happened, they may well issue court proceedings.
In some instances, particularly in the cases involving a public-sector tenant judges often have discretion not to order a “final” possession order but this will vary from case to case and some will take a more sympathetic view of matters than others.
In practice, although many judges may be reluctant to make a final order, they will often make a “suspended” possession order which may well impose onerous conditions on individual tenants that they may not be able to adhere to. Even landlords who may be sympathetic to the people they are seeking to evict may well take a pragmatic view. This is because they and the lawyers and surveyors who advise them are concerned that informal, voluntary agreements may not be adhered to and they will be left high and dry.
In so concluding landlords tend to overlook the fact that even in circumstances where they issue possession proceedings themselves and do not pay for professional advice, they still incur a lot of expense and time that could be better spent on important things such as generating income and ensuring profitability. The process of going to court entails a certain amount bureaucratic delay and both landlords and tenants find both the legal requirements and the attendant procedures to be confusing and stressful. In many instances where evictions are carried out, accrued arrears are never paid and an individual landlord’s accumulated losses can be very significant.
The involvement of an impartial, independent mediator will help to ensure that in individual cases the issues and any related grievances or concerns are considered properly. In appropriate cases, tenants will have an opportunity to demonstrate that they have done all that they reasonably could and that their reasons for non-payment are genuine. In instances where there are housing benefit issues it may be possible for local authority cooperation to be secured so that the attendant difficulties can be looked at objectively. It will clearly be in the interests of local authorities to cooperate. Tenants who have potential counterclaims e.g. where a landlord has failed to carry out repairs can raise their concerns. Rather than possibly being pressed into agreeing to unrealistic repayment schedules a full consideration of the tenant’s means can be undertaken and in appropriate cases, sensible repayment schedules can be agreed. Where appropriate, a tenant can be asked to give some financial disclosure.
Whereas a pre-court informal agreement that may or may not have been negotiated may fall by the wayside, an agreement reached in a relatively informal, confidential civil mediation will carry weight. This puts the onus on both landlords and tenants to ensure that they conduct themselves properly and above all, they will appreciate that they have to be honest and open with one another. They will also entirely understand that agreements made during mediation are to be adhered to. Tenants will be deterred from fobbing off their landlords by agreeing to something that is unrealistic. The mediation process need not take very long – in most cases 2 – 2.5 hours ought to be sufficient. In contrast a landlord issuing possession proceedings may find that he is required to attend more than one court attendance and given the case listing system that is generally used, it is distinctly possible that any incidental waiting times could exceed two hours.
If things do go wrong and the mediation agreement is not adhered to a landlord still has the option of going to court. In so doing they will be equipped with a copy of a mediation agreement. In instances where a tenant has behaved culpably, it is more likely that a landlord who is able to demonstrate that he/she has endeavoured to resolve matters will be considered sympathetically by the court.
Particularly in the public sector, it would be a very straightforward matter for a landlord to institute a genuinely independent and very cost-effective mediation process. ASMADR which offers a full range of ADR services is fully geared to providing such a service and doing so at very modest cost. The incidental administrative requirements are modest and even in the short term, there will be demonstrable financial benefits.
Principal Director of ASMADR, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.