The rental mediation service pilot: a rocky start

The rental mediation service pilot was a government sponsored scheme to anticipate and alleviate the 40,000 high tsunami of possession cases in the aftermath of the pandemic. DisputesEfiling (DEF) published research in June 2020, which showed an enormous backlog of civil, family and tribunal (CFT) cases. Our solution was mediation managed online. What government delivered was, we believe, the high-water mark for government management of mediation using 20th century technology: telephone, paper and email. 

The post-implementation review

The publication, on 22 February 2023, of the post-implementation review is a good time to reflect on the experience of our December 2020 bid to run this service and the feedback we received from government. 

The post-implementation review (the PIR, references to page numbers relate to the numbering of pages in the PIR) was published by the Ministry of Justice (MoJ) and the Department for Levelling Up, Housing and Communities (DLUHC). The aim of the review was to understand how the mediation process worked and what can be done to improve it in the future. There are many lessons to be learned, and implemented, especially as the MoJ engages with stakeholders to design the platform specification and (A)DR process for the digitised pre-action phase of CFT cases.

This article represents the response of DEF and ADR-ODR International (AOI) to the PIR from our perspective as joint bidders in the procurement that took place in December 2020. 

Our understanding from the invitation to tender was that the service was to be delivered by multiple actors in the possessions sector managing a high volume of cases in a short space of time, originally five months. The setting was post-issue mediation. It struck AOI-DEF that the focus of the project was on maximising the efficiency of the process and the mediators’ skill at successfully resolving cases within a short mediation.

The central message of our bid was that a panel of specialist mediators would work online not only for the final hearing, but, crucially, that all parties to the mediation would work together on the DEF platform. The feedback on our bid was that the carbon neutral team thought the idea of working in a paper-less environment was brilliant and ticked all the boxes. Regrettably the team examining the mediation management aspect said they did not understand the point of putting the mediation process in a Cloud-based environment. Nor did they understand why we proposed giving judges and court staff access to the online mediation file.

Since then, we are pleased that projects such as the conciliation scheme for the Post Office Horizon Scandal is to be managed online and the CFT pre-action phase will be managed entirely online. So, progress is being made.

The takeaways

In summary the PIR notes the following lessons to be learned:

• The timing of (A)DR is important with some respondents believing immediately before a hearing to be too late and pre-action to be the ‘sweet spot,’ whereas others believed later is better (p. 18). Our view is that no one time is right and that (A)DR should be attempted both in pre-action and, for those disputes that remain unresolved, post-issue attempts to resolve cases should be made;
• A constant finding in the PIR is the lack of readily available information about mediation, Legal Aid and the Duty Solicitor Housing Service (p. 25 and elsewhere). Belatedly, the PIR notes, attempts to address such concerns involving a website offering information and leaflets;
• Communications between the various agencies and actors involved is described in the PIR as ‘not optimal’ (first bullet on p. 6 and on pp. 26 and 27);
• The management of the referrals was originally to be for duty solicitors, but they were found to be over-worked and so that task was handed to court staff to undertake using paper and telephones (final para, p. 10);
• Finally, it is noted (p. 22) that an understanding of the law is not enough. Skills such as the capacity to empathise and negotiate also need to be taught and learned through experience. The challenge of the vulnerable party is highlighted too. These are vital lessons to be learned and implemented in the forthcoming digitised pre-action phase.

Conclusion

The PIR could not have been published at a more seminal moment. As the MoJ continues to develop the process of managing the pre-action phase of CFT cases online the lessons to be found in the PIR are perfectly timed to inform the MoJ’s work when developing pre-action platforms. We applaud both the MoJ and DLUHC for the work undertaken to produce such a helpful and timely review.

Rahim Shamji is the CEO of ADR-ODR International and Tony Guise is the director of DisputesEfiling
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