Page 82 - Solving Housing Disputes

222
most effective where the prospect of court-based adjudication looms over it.
Allowing a stay on proceedings risks parties failing to engage with ADR on a
good faith basis. As an alternative, should parties wish to engage in mediation
outside of the court process, a judge (or in the future, authorised court or tribunal
staff member) should look to set down a case management timetable in advance,
which sets out timetabling and deadlines, should the ADR process be
unsuccessful. The approach must be one where ADR is part of an active
approach which case manages a dispute to resolution. We recommend that the
Civil Procedure Rule Committee should review whether a stay for
mediation disincentivises its use, and whether mediation should be ordered
as part of case management timetabling with subsequent filing and case
management dates post-mediation. Consideration ought also to be given to
how active case management can ensure parties engage with the mediation
and any subsequent deadlines.

3.49 The standard direction for disrepair and multi-track cases provides includes that
“at all stages the parties must consider settling this litigation by any means of
Alternative Dispute Resolution (including Mediation)” and that parties “not
engaging [with] means proposed by another must serve a witness statement
giving reasons within 21 days of that proposal which would be shown to the trial
223
judge should the questions of costs arise.” Conversely, the standard direction
224
for the small claims track contains no reference to ADR. In our view, until
courts and tribunals perceive mediation or ADR as a normal step in the dispute
resolution process, it is liable to be marginalised. One way to ensure the take-up
of mediation is at the forefront of judicial case management is to include a
stronger coercion within procedure rules. We recommend that both the Civil
Procedure Rule Committee and the Tribunal Procedure Committee should
review all standard directions which involve housing disputes to include a
presumption for parties to engage in ADR.

3.50 We understand that a further structural impediment to legally aided parties
engaging is that prior authority must be obtained from the Legal Aid Agency to

222 When deployed “in the shadow of the law”, first coined in Mnookin, R. H. and Kornhauser, L.1979,
‘Bargaining in the shadow of the law: The case of divorce’, Yale Law Journal 88: 950-997.

223 Available at https://www.justice.gov.uk/courts/procedure-rules/civil/standard-directions

224 Practice Direction 27, Small Claims Track, available at https://www.justice.gov.uk/courts/procedure-
rules/civil/rules/part27/pd_part27#B#

76