Page 81 - Solving Housing Disputes

3.47 The Small Claims Track Questionnaire alerts parties to the availability of
mediation through a free, one-hour appointment with the Government-run Small
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Claims Mediation Service (SCMS) and offers parties a “Yes” or “No” tick box
to the question of whether they agree to the case being referred to the SCMS.
Conversely, the directions questionnaire for the fast and multi-track invites
parties to consider a 1 month stay to pursue the prospect of settlement through
an array of ADR type strategies, which includes signposting parties to external
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mediation providers accredited by the Civil Mediation Council. In our view,
parties across all claim tracks should engage with the question of whether
mediation is suitable for their case. A directions questionnaire that does not
require parties to articulate why their claim is not suitable for mediation is likely
to see the option disregarded by parties. Assistance for parties could be derived
from a list of non-exhaustive reasons as to why mediation might not be
appropriate, such as urgency, third party interests, etc. The point is to emphasise
that in most cases, and particularly where the housing relationship is ongoing
beyond the dispute, the matter is likely to be suitable for mediation, or another
form of ADR. We recommend the directions questionnaire for all tracks
should require parties to state the reasons why they do not wish to pursue
ADR. The questionnaires could include a non-exhaustive list of potentially
acceptable reasons as to why certain types of disputes may not be suitable
for ADR, which implicitly makes clear that most disputes are suitable for
ADR.

3.48 Practitioners on our Working Party expressed the view that the stay initiated
when parties pursue mediation in the fast and multi-track can be a disincentive
to uptake, as some in the profession continue to view mediation as a necessary
hurdle or tool for delay before continuing to court-based adjudication. ADR is

220 The SCMS hears somewhere in order of 10,000 mediations a year, Civil Justice Council, note 209
above p. 17.

221 Form N181 contains an embedded link to an external provider, the Civil Mediation Council. If parties
do not elect to try and settle at the directions questionnaire stage, they are asked to state the reasons why
they consider it inappropriate to settle at this stage. The Civil Justice Council report on ADR described
that even where parties “gave wholly inadequate reasons in the N181 for not using ADR and seeking a
stay”, judges were spending most of their limited judicial time at the interim stage on costs budgeting,
and were spending comparatively little time interrogating compliance with ADR, ibid para 8.20.

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