Let’s talk mediation…

What is mediation and why does it matter?

Mediation is a form of dispute resolution, many people think it is a mamby-pamby approach with a tree hugging mediator asking you to "get in touch with your feelings" and "see things from the other persons perspective"

Mediation isn't like that at all... think of a mediator as a guidance referee, someone who can help two people reach an outcome they are both happy with, while keeping them focused on moving forward.

Mediation gives you more options than court, allows you to control the outcome and helps you resolve many issues

Landlords and tenants are seeing the benefit of mediation as apposed to going to court.

Mediation can help with Rent arrears, access issues, needing vacant possession and much more.

Mediation agreements are legally binding too, so you can rest assured the outcome you agree is sealed in contract between you both.

So don't think of mediation as a waste of time and money, see it as a cheaper option to getting a mutually beneficial outcome.

What is a mediator?

A mediator supports and guides those involved in a dispute to reach their own resolution. 

The mediator does not decide the outcome, but helps the parties understand and focus on the important issues needed to reach a resolution.

Mediators are skilled at sifting through the facts, emotions and individual interests of those involved to get down to the real core issues and what a fair outcome could be for everyone.

The mediator will clarify the issues, assess the strengths and weaknesses of each party's case. 

The mediator also offers creative approaches and innovative solutions, while maintaining an unbiased perspective.

A mediator's duties are:

• To conduct a mediation in a fair and unbiased manner;;

• To help everyone move forward to resolution

• To maintain the confidentiality of a mediation; and

• To conduct the mediation in accordance with the Code of Mediation Procedure and the provisions of the Standards of Conduct for Mediators.

Mediation… it’s not just for the Family

International mediation awareness week has come to a close, but are you still unsure about mediation and how it could help your current situation.

Many people see mediation as pointless and unenforceable, but what a lot of people don’t realise is there are many types of mediation and just how many industries rely on mediation to resolve disputes, from internal workplace spats, customer complaints, right up to corporate mergers and acquisitions

Here are just some of the types of mediation used regularly and the industries that rely on it.

ADR in the Travel Industry

Armed Forces

Conflict Coaching

Conflict Mapping

Construction industry

Consumer Rights

Education

Energy Sector Issues

Family mediation

Group Facilitation

Health Sector Mediation

High Conflict Behaviour

Inheritance Disputes

Intergenerational Conflict

Landlord and Tenant

Mandatory Mediation

Marketing and Promoting Mediation 

Mediation Advocacy

Mediation in times of Conflict and War

Mental Health

Pets

Professional Services Mediation

Property

Psychology and Mediation

Public Organisations

Restorative Justice

Special Educational Needs and Disabilities

Workplace / employment 

Mediation is designed to prevent the need for court

 I read a very interesting article in The Law Society Gazette, which focused on mediation and the results of the Ministry of Justice (MoJ) recent call for evidence.

The thing that stuck out like a sore thumb to me was ‘high proportion’ of respondents who were not aware of a dispute resolution processes and cited a lack of publicly available information on this.

I have to agree, in my chosen area of mediation, Landlord and tenant, it does still surprise me how many landlords and tenants do not know that mediation is even available in this specific field and how greatly that service can resolve issues such as rent arrears without the cost of going to court.

Mediation was viewed by many as a token step along the inevitable road to court.

Mediation is designed to prevent the need for court and the only people I know that would want to prevent that is solicitors, because with an early resolution, their payday is much less.

Now I do see many solicitors train to be mediators and do the job well, however, I do hear stories from people who have had a solicitor mediate, that the session itself was biased and the solicitor was still looking for a party to win.

Is mediation about winning?

I believe it is, but I see the outcome as Win Win, both the landlord and the tenant get an outcome that they are happy with and 9 times out of 10 it avoids court.

If you ask anyone that has gone through the tireless stages of court proceedings, they will tell you they wish they would have reached a settlement using another method

Is it really neutral?

I would say yes a majority of the time, I certainly find mediators with no legal background make better mediators than those who do, why? Because the law teaches us to see right and wrong and focuses our mind on having a good guy and a bad guy.

Mediation is not about the law, it is about what is best for the 2 people in the room at that moment.

Yes of course the mediator has to make sure that what is being agreed is legal, but at the same time it doesn’t have to follow the letter of the law.

For example, legally the landlord can pursue a tenant to court to recover all rent owed, at mediation, the landlord has the option to reduce the arrears in order to get a swift move out or offer a financial incentive to the tenant. These options are available in court 

I do think mediation has a huge part to play in the private rented sector and I do believe it gets better outcomes than the court process alone.

Personally I would like to see more eviction specialist companies understand the value of mediation for their clients and that an early resolution, may actually see them increase business flow as they do provide the value of alternative dispute resolution.

As a mediator working within the private rented sector I have helped hundreds of landlords and tenants resolve rent arrears, avoid costly and lengthy evictions and help both parties move on from what can be an emotionally draining situation

There are 5 main stages to mediation

Stage 1: Opening Statements 

Each party will be asked to  make an opening statement. This should describe their side of the story.. The key rule during this part of the process is that no one party gets to interrupt any other part.

Stage 2: Joint Discussions

After opening statements are read, each party is asked for their response to the others opening statement

Both parties can asked open-ended questions to build a dialogue about what happened and the issues that must be dealt with to bring a resolution to the situation. 

Personally I do skip this stage, but it can work well for employment or family mediation

Stage 3: Private Discussions

Each party then meets privately with the mediator. Both sides should get their own space at this point, and the mediator will move between the parties to discuss the positions of each side. 

Ask the necessary questions at this point, but also summarize both the strengths and the weaknesses of each side’s position so they understand what’s at stake and how their case looks to an unbiased individual. This is also a great space to develop the ideas necessary to make a settlement work. 

Stage 4: Negotiation

The mediator will know the exact time to start stage 4 and to, bring the two parties to now work towards the agreement.

 The goal here is to present all of the ideas and agree on those that might work. 

The mediator won’t  start this stage until they know  both parties are actually ready to come to an agreement, doing this when the parties aren’t quite ready can lead to losing  everything at this stage. 

Stage 5: Settlement

This is the final step in the process. If you cannot reach a settlement, you’ll simply help both sides decide whether to try again or to take the case to trial. If the parties have reached an agreement, though, the mediator will draw this up in a legally binding mediation agreement, this will be signed by both parties and will have consequences if either party fail to do what they have agreed.

More people stuck to mediation agreements because they have been part of the process to reach an agreement that they were happy with.

Eviction timelines for Q2

The latest Ministry of Justice figures for Q2 (April to June 2022) 

indicate that they have increased from the figures taken during April to June 2021. 

Landlord possession claims have increased 160% (from 6,997 to 18,201)

orders 164% (from 5,431 to 14,319), 

warrants 104% (from 3,786 to 7,728) and repossessions 210% (from 1,582 to 4,900).

However the average timeline from issuing s21 to getting an eviction has risen to 33.8 weeks

Whilst the majority of cases are still predominantly for rent arrears.

Notably..there has been a significant increase in section 21 evictions compare to figures taken in 2019. 

there is a good chance this increase is directly linked to a knee jerk reaction from landlords to the Fairer Renter Reform White paper realised earlier this year, fuelled by the medias continued inaccurate reporting that landords will NEVER be able to evict if s21 is abolished.

This is complete fabrication and anyone who has read the Bill ( I have very thoroughly) will know that there are provision ready to replace the s21 process, albeit that they do need some tightening up.

Eviction tenants now will not remove your ability to use S21 in the future, unless you are opting to sell or leave your property empty until the Bill eventually because law…. SPOILER ALERT… This won’t be happening in the next 18mth at least, and if at all in a General election provides a new party Government

Many Private tenants face choice between heat, eat or paying the rent...... But how can landlords help?

The current headlines talk about a cost of living crisis and how many households are edging into fuel poverty, but what is fuel poverty and how many people are really effected.

What is fuel poverty

Until recently, the standard definition of fuel poverty was when a household needed to spend more than 10% of its income on fuel

However, in June 2013, the Department for Energy and Climate Change (DECC) published 'A framework for future action’ which set out the Government’s intention to adopt a new definition of fuel poverty for England.

This new definition states that a household is said to be in fuel poverty if:

·         They have required fuel costs that are above average (the national median level), and

·         Were they to spend that amount they would be left with a residual income below the official poverty line.

This also uses a fuel poverty gap - i.e. the difference between a household’s 'modelled' (average) bill and what their bill would need to be for them to no longer be fuel poor

What does it mean for landlords?

The only data currently available is from 2020 so I expect in reality, these figures are now much higher.

Households living in privately rented accommodation are most likely to be fuel poor (25.0%). Despite only 18.7% of all households privately renting their homes, 35.4% of all fuel poor households live in private rented accommodation.

This is a worrying time for landlords, with the rising cost of energy and tenants unable to afford to pay utility bills, they will have to start making decisions on what they pay their money towards.

Is rent gong to suffer?

It is predicted that come the winter more and more tenants will priorities heating over housing with many either paying only partial rent or skipping payments, in an attempt to rob peter to pay paul and keep their homes warm and their food hot.

What can landlords do?

The knee jerk answer to that would be, improve the energy efficiency of your rental stock, but we all know this isn’t always financially possible for landlords and can be extremely disruptive for a tenant.

Tenant may not be aware of the financial support that is available to them and as a landlord prevention is better (cheaper) than cure, so it may be worth arming yourself with the knowledge that could help your tenants pay their utility bills, which in turn will mean they wont have to skim off the rent.

Many utility providers have their own grant scheme that will pay off the customer’s debtor or pay a good % towards the debt.  You can normally find more details on the supplier’s website.

Tenants could also be eligible for Warm Homes discount scheme

Let’s take a closer look at the different utilities:

Gas and electric arrears

If tenants don’t pay your gas or electric bills, their supplier can apply to Court to get a warrant to enter their home to fit a pre-payment meter. 

Many gas and electricity companies have their own customer support schemes that can pay a grant towards arrears or write off the debt in some cases.  For example:

·         British Gas Energy Trust

·         E.ON Energy Fund

·         OVO Energy Fund

·         npower Energy Fund

·         Scottish Power Hardship Fund

·         EDF Energy Customer Support Fund

·         Bulb Energy Fund

 

But it isn’t just Gas and electricity that tenants could be struggling with

Water arrears

If a tenant falls behind with their water payments, the water supplier can’t disconnect them

However, they can start court action to get debtors to pay the arrears back, and in some cases apply to deduct money straight from benefits payments through a scheme called Waterdirect.

Water companies also have a range of support funds for those who are struggling to pay

·         WaterSure

·         Anglian water assistance fund

·         Severn Trent water charitable trust fund

·         South East waters helping hand

·         Thames water trust fund

·         United Utilities

·         Yorkshire Water

In addition, most water companies have payment support schemes, such as social tariffs (special rates for people on low income or receiving specific benefits).

·         Affinity water – LIFT

·         Anglian water – LITE

·         Essex & Suffolk water – SupportPlus

·         Thames water -WaterHelp

To name but a few………….

 

It is always worth contacting the utility supplier direct to ask what funds they have available.

In addition, if the tenant is vulnerable they can also ask to be added to the Priority Services Register.

This is a free service provided by suppliers and network operators. Each energy supplier and network operator maintains its own register. To get on it, you need to contact the energy supplier

There are also Government schemes that could help

•             Winter Fuel Payment – An annual one-off payment to help pay for heating during the winter

·                 Local authority funds

Ø  Discretionary Housing payment (DHP) (£140m)

Ø  Household Support Fund (£500m)

Ø  Homelessness Prevention Grant (£310m)

Ø  Flexible Homelessness Support Grant (£200m)

Ø  Council Tax Rebate (£432m)

Ø  Discretionary Fund (£144m)

Ø  Prevention of Homelessness funds

Ø  Financial inclusion grants

Can all be used to help pay towards both energy bills and rent arrears.

•             Cold Weather Payments – These are one-off payments to help pay for extra heating costs when it’s very cold.

•             Warm Home Discount Scheme – £140 off the electricity bill under the Warm Home Discount Scheme if you’re either:

o   getting the guarantee credit part of Pension Credit

o   or on a low income

All of which are worth trying.  If your tenant can deal with the utility bills, that is one less worry for the them – and will release extra money for paying rent