Page 155 - Solving Housing Disputes

sustainable rate of legal aid for all this work, this is, on its face, a patently
more satisfactory economic model.

18. What lawyers are excluded from is the ADR Stage 3. The presence of lawyers
risks defeating the overarching purpose of bringing parties together to seek
out the common ground that can provide a basis for sound continuing
relations. While I am confident that many of the lawyers I have worked with
361
over the years would welcome a new approach and might be expected to
throw themselves willingly and appropriately into the intended culture, many
would not do so and would instead approach it much as they approach
conventional litigation, something which is often noticeable when lawyers are
present during mediations. Lawyers in this country are steeped in
adversariality, they are deeply competitive, it is what they are trained to do, it
is in their DNA.

19. At least in the early years of HDS, as it finds its own feet, the risk to the
process of allowing lawyers to participate in the Stage 3 process is very real.
Parties will almost invariably follow their lawyers rather than the other way
around. The prospects for a new culture not merely of dispute resolution but
as between landlords, tenants and authorities generally 362 would be severely
undermined.

20. That is not to put the process above the interests of parties and, in particular,
of vulnerable parties: the process has been structured to ensure protection for
363
the vulnerable and that they cannot be taken advantage of. It may be that
the absence of lawyers comes to be seen as a negative; it may also be that
364
lawyers - in particular, panel lawyers - will respond to working with the

361 As do non-dissenting lawyers on the Working Party.

362 See Report, para. 2.16.

363 Again, the vulnerable will have access to properly funded lawyers to ensure that they are not adversely
affected which many of them may well not have now; this will apply even during a pilot.

364 This is another area of misunderstanding. At para.22(b), the Dissent states: “The report states that in
addition to the panel lawyers, clients would be “free to take legal advice from their own choice of lawyer”
([Report,] para 2.70). Presumably, therefore, this means that the panel lawyer is not there to represent the
client (as to suggest that public funding might be available for two lawyers would in our view be
something of a fantasy). It is not explained what duties will be owed (and to whom) by this panel lawyer,
or where their obligations lie in the event of a conflict of interest between, for example, the HDS and the
individual. It is not stated whether communications between the panel lawyer and the landlord/tenant
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