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Mandatory mediation in civil proceedings — a boon to social housing landlords?

AuthorsKieran King

Mandatory mediation in civil proceedings a boon to social housing landlords

Later this year, the Court of Appeal will consider the potentially seminal case of Churchill v Merthyr Tydfil Borough Council [2022], which could have major implications for ADR (alternative dispute resolution) in civil proceedings.

Here, Paralegal and housing law specialist Kieran King lays out why both registered providers of social housing and their tenants will be paying attention to the outcome.

A blow to social housing tenants

The argument advanced by Merthyr Tydfil Borough Council is that the exhaustion of an organisation’s internal complaints procedure — which it considers a form of ADR — should be compulsory before any pre-action protocol is triggered or any claim is issued.

The potential importance of this case to social landlords is therefore clear, as tenants would be forced to go through an organisation’s internal complaints procedure before being able to initiate housing condition claims.

The rationale for mandatory mediation

The rationale behind this is largely clear-cut. The imposition of so-called mandatory mediation would seek to reduce the large volume of cases faced by organisations. This would benefit all parties where costs are concerned. There are, however, two significant issues that the Court of Appeal will have to consider.

Firstly, ADR is usually perceived as an independent attempt to resolve a dispute — and the independence of an internal complaints procedure may be questionable.

Secondly — and perhaps more significantly — the court may be reluctant to force parties to use ADR.

This issue is clearly at the court’s discretion and in the decision made to permit the appeal, Lady Justice Andrews remarked that the matter “raises an extremely important issue relating to access to justice”. While judicial orthodoxy suggests that courts will not force ADR upon parties, it seems like the tide may be changing, with various UK and European bodies suggesting that it may be perfectly lawful to compel mediation.

What will happen?

Looking forwards, it’s hard to determine just how wide the ruling of the court will be.

While the judgment may only touch upon the necessity and legitimacy of enabling compulsory mediation, it could have a larger scope and may consider whether the internal complaints procedures of organisations do fall within the ambit of ADR. If compulsory mediation does get recognised as a legitimate procedure, the landscape of future housing condition claims would be altered radically.  

Key steps for registered providers

Now is a good time for registered providers of social housing to consider the adequacy of their internal complaint procedures — in particular, whether they are fit for purpose in the context of housing condition claims, as well as how they can be adequately resourced.

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