Mediation: How It Works and How to Prepare

Tenancy mediation is a structured conversation facilitated by a neutral third party who helps landlords and tenants work through their disputes. The mediator doesn't make decisions or impose solutions but guides the discussion to help parties understand each other's perspectives and explore potential resolutions.

The process is confidential, meaning that anything discussed during mediation cannot be used as evidence if the matter later goes to the Tenancy Tribunal. This confidentiality encourages open communication and allows parties to explore settlement options without fear that their statements will be used against them later.

Mediation sessions typically last up to two hours and are conducted either in person, by phone, or via video conference. The mediator will usually speak with each party separately first to understand their position, then bring everyone together to work through the issues systematically.

While mediation is generally required before tribunal proceedings, it's not just a box-ticking exercise. Many disputes that seem intractable find resolution through the mediation process, often with outcomes that are more creative and satisfactory to both parties than what a tribunal might order.

In most tenancy disputes, you must attempt mediation before you can apply to the Tenancy Tribunal. This requirement ensures that parties have a genuine opportunity to resolve their differences without the time, stress, and formality of tribunal proceedings.

However, there are important exceptions where you can proceed directly to the tribunal. These include urgent situations like illegal lockouts, serious breaches that pose immediate risk, or cases where mediation has already been attempted unsuccessfully within the past 12 months for the same issue.

Even when mediation isn't strictly required, it can still be a valuable option. For example, if you're dealing with ongoing maintenance issues or rent increase disputes, mediation might provide a faster resolution than waiting for a tribunal hearing.

The key is understanding that mediation is designed to be accessible and efficient. There are no filing fees, and sessions are usually scheduled within a few weeks of your application, making it an attractive first step for resolving tenancy disputes.

Effective preparation begins with gathering and organising all relevant documentation. Start with your tenancy agreement, as this forms the foundation of your legal relationship and will guide much of the discussion about rights and obligations.

Collect all correspondence between you and the other party, including emails, text messages, letters, and notes from phone conversations. Organise these chronologically to create a clear timeline of events. This documentation often reveals patterns of behaviour or communication that can be crucial to understanding the dispute.

Photographic evidence is particularly important in tenancy disputes. If the issue involves property condition, damage, or mould and dampness, take clear, dated photographs that show the extent and nature of the problem. Include wide shots for context and close-ups for detail.

Financial records are equally important. Gather bank statements showing rent payments, receipts for any repairs or improvements you've made, quotes for remedial work, and evidence of any costs you've incurred as a result of the dispute. If the issue involves bond disputes, ensure you have documentation of the original property condition and any cleaning or repair costs.

Successful mediation requires more than just presenting your case; you need to think strategically about what outcomes are realistic and acceptable. Start by clearly identifying what you want to achieve and what you're willing to compromise on.

Consider the other party's perspective and interests. For example, if you're a tenant seeking repairs, the landlord might be more willing to act quickly if you can demonstrate that delays will lead to more expensive problems. If you're a landlord dealing with rent arrears, a payment plan might be more practical than immediate termination.

Prepare multiple options for resolution. Having alternatives gives you flexibility during negotiations and shows the mediator that you're approaching the process constructively. For instance, in a bond dispute, you might propose splitting contested amounts, agreeing to professional cleaning, or accepting a partial refund with specific conditions.

Think about timing and practical considerations. Sometimes the best settlement isn't just about money but about how and when things happen. A tenant might accept a rent increase if it's phased in gradually, or a landlord might agree to repairs if they can coordinate them with planned maintenance.

Remember that mediation settlements can be more creative than tribunal orders. You might agree to arrangements that a tribunal couldn't order, such as future maintenance schedules, communication protocols, or specific procedures for handling similar issues.

The mediation session typically begins with the mediator explaining the process, confirming confidentiality, and setting ground rules for respectful communication. Each party will then have an opportunity to present their perspective without interruption.

The mediator will ask questions to clarify facts, explore underlying interests, and identify areas of potential agreement. They might separate the parties for private discussions to understand concerns that people might not want to raise in joint session.

Don't expect immediate resolution. Mediation is often a process of gradual movement toward agreement, with the mediator helping parties understand each other's positions and explore options they might not have considered.

Be prepared for emotions to run high, especially in disputes involving harassment or illegal evictions. The mediator is trained to manage these situations and will work to keep discussions productive and focused on solutions.

If agreement is reached, the mediator will help document the terms clearly. This agreement becomes binding once both parties sign it, so make sure you understand and are comfortable with all aspects before committing.

Successful mediation can result in various types of agreements depending on the nature of the dispute. Payment arrangements are common, whether for outstanding rent, compensation for damage, or refund of bond money. These might involve lump sum payments, instalments, or offsets against future obligations.

Repair and maintenance agreements often specify exactly what work will be done, who will do it, timeframes for completion, and how costs will be shared. These agreements can be more detailed and practical than tribunal orders, addressing specific concerns of both parties.

In disputes about ending tenancies, mediation might result in agreed termination dates, arrangements for finding replacement tenants, or conditions for early release from fixed-term agreements.

Some agreements include ongoing arrangements, such as communication protocols, regular inspection schedules, or procedures for handling future issues. These can be particularly valuable in situations where the tenancy relationship will continue.

If mediation is unsuccessful, you'll receive a certificate confirming that mediation was attempted. This allows you to proceed with a tribunal application within 28 days, and the time spent in mediation isn't wasted as it often helps clarify the real issues in dispute.

If mediation results in an agreement, both parties receive a copy of the signed settlement document. This agreement is legally binding and enforceable, so it's crucial to comply with its terms. Keep detailed records of your compliance, including receipts, photographs, or other evidence of performance.

If the other party doesn't comply with the mediation agreement, you can apply to the Tenancy Tribunal to enforce it. This is usually faster and more straightforward than starting a new dispute, as the tribunal will focus on whether the agreement terms have been met rather than relitigating the underlying issues.

When mediation is unsuccessful, use the experience to refine your approach for tribunal proceedings. The issues discussed and positions taken during mediation often help clarify what evidence will be most important and what arguments are likely to be most persuasive.

Consider whether any new information emerged during mediation that might affect your case. Sometimes the other party's explanations or evidence presented during mediation reveals aspects of the dispute you hadn't fully understood.

Remember that even unsuccessful mediation can have value. It demonstrates to the tribunal that you attempted to resolve the matter cooperatively, which can reflect positively on your approach to the dispute.