MoJ call for evidence: Dispute resolution in England and Wales

The Ministry of Justice (MoJ) are investigating whether pre-court/hearing dispute resolution services such as mediation and conciliation could offer more effective routes to resolving disputes, helping to avoid time in court in England and Wales (consultation documents are here). Our representation is informed by detailed member research including two separate surveys and one-to-one conversations with exec members.

Tenancy dispute resolution

• Propertymark members engage in dispute resolution on a daily basis, so are well placed to help prevent conflict and respond quickly to issues as they arise. Clear communication of tenant and landlord obligations when relationships are formed can help establish clear boundaries and lay the foundations for a positive tenancy. Furthermore, an agency’s complaints handling process is a powerful dispute resolution mechanism so having trained staff with the right skills to investigate complaints properly is very important.
• Some types of disputes are more likely to be suitable for dispute resolution than others e.g., rent arrears, but the level of arrears and whether or not a payment plan has been in place will influence the extent to which dispute resolution is perceived as suitable. In cases of harassment suitability for dispute resolution decreases considerably.
• Potentially increasing the speed and lowering the cost of resolution are the two things most likely to incentivise a landlord to engage and participate in dispute resolution outside of the court system. For tenants, the two most enticing elements of taking part in dispute resolution to avoid court include the possibility of remaining in their home, or the possibility of the landlord offsetting arrears in return for vacant possession.
• Propertymark members have little experience of the joint MoJ/DLUHC Rental Mediation Service pilot but those that have, told us that it is introduced as an option far too late in the process — a case has to reach the court system first and by then relationships can be very damaged. Scaling up this approach is therefore likely to have limited impact on stifling escalation of legal action.
• Making consideration of alternative dispute resolution mandatory as part of a pre-action protocol could potentially lead to a positive culture shift where dispute prevention and alternative dispute resolution interventions are employed as common practice wherever possible, but it would be vital to ensure that all potential parties know what it is and it must be accessible.
• Letting agents generally acknowledge that when a dispute escalates they may no longer best placed to try and reach a resolution (due to the binding relationship between agent and landlord), this is why we have recommended that MoJ explore the merits of introducing an ACAS style model of early conciliation and mediation to ensure all parties have access to impartial support to help resolve disputes.

Read our response