Page 80 - Solving Housing Disputes

3.45 The implications of a failure to engage in ADR arises at the conclusion of
litigation at the costs assessment stage. Arguably, this is too late. The Civil
Justice Council has suggested that there could be a form of interim sanction
available to express disapproval of a refusal or failure to mediate by parties at
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the interim stage. The intention is to influence parties’ behaviour earlier in the
litigation process, to encourage engagement in ADR as early as possible. We
agree with this proposal, subject to the caveat that sanctions at an interim stage
can only be introduced if pre-action ADR is meaningful and practical obstacles
to engagement, which we have outlined above, are removed. Specialist providers
must be widely available and accessible, it must be more prominently positioned
in the dispute resolution process, and publicly funded advice and representation
should be available. We recommend that, subject to there being an
appropriate level of funding for ADR providers and practitioners at the pre-
action stage, the Civil Procedure Rule Committee should consider whether
costs sanctions for failure to engage with ADR pre-action ought to be
introduced earlier in the case management process.

ADR in the court and tribunal process

3.46 Procedural processes within the courts and tribunals contain certain “nudges” or
encouragement towards ADR. The FTT (PC) sends out mediation flyers to
parties early in the process, and after an initial case management hearing, case
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officers send out a lengthier “agreement to mediate form”. Early in the conduct
of housing disputes in the courts, parties are sent a directions questionnaire,
which asks an array of questions relevant for case management.
219

217 Ibid Civil Justice Council para 8.33-8.36.

218 The flyers explain the advantages of mediation under various sub-headings; “cost-effective”, “quick”,
“private”, “win/win”, “positive relationships”. The agreement to mediate forms explains the benefits of
mediation, and how it works in the tribunal, before offering parties a tick box, to express whether they
want to participate in mediation or not. If the parties accept, mediation is offered by the FTT (PC) itself,
as opposed to by an external provider.

219 The directions questionnaire sent depends on which “track” the case is in, which is governed by
damages claimed. Claims under £10,000 are sent the small claims directions questionnaire, the N180
form, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachm
ent_data/file/856374/n180-eng.pdf Fast and multi-track claims are sent the N181 form, available at
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/8563
74/n180-eng.pdf Questions are included regarding compliance with the relevant pre-action protocol,
endeavours to settle, experts needed and case management arrangements.

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