Mediation

Although mediation is less formal than the Tenancy Tribunal it is still important for the tenant to prepare appropriately. This should include:

• being clear about what solution they want
• having any supporting evidence available, for example rent records, correspondence, photos, invoices, or notices to remedy.

Tenancy Services have a useful mediation workbook that can help the tenant work through what they want to achieve in mediation.

Preparing for mediation workbook

If the tenant does not feel confident undertaking mediation in English, the mediation service can organise a translator. It is best to request a translator as early in the process as possible.

A trained mediator will help the tenant and landlord to:

• discuss the problem
• identify the key issues in dispute, and
• work through possible solutions.

The aim is for both parties to come to an agreement. The mediator does not make a decision about what will happen – this is for the landlord and tenant to decide together.

Most mediation occurs as a three-way phone call between the landlord, tenant and mediator. If a tenant is not comfortable being on the same call or speaking directly with the landlord, they can request that they speak just with the mediator, who can go between both parties for mediation.

If the tenant wants a support person, they need to ask the mediator ahead of time. The mediator may ask the other party if they agree. The support person can’t say anything, unless everyone involved in the mediation agrees that they can.

If a tenant is allowed a support person at mediation, they could meet in person with their supporter and place the phone on speakerphone, or request that Tenancy Services also call in their support person to the call.

What happens after mediation will depend on whether an agreement was reached between the tenant and the landlord.

If an agreement is reached

If an agreement is reached, the mediator will record the agreement as a mediated order and then certify that everyone understands the agreement.

There are two types of mediator’s order - sealed and unsealed.

If the problem has already been solved and everyone has agreed to not allow the issue to happen again, the mediator’s order may be left unsealed. In this case, the order is simply a formal record of what was discussed during mediation. This type of order might be used when, for instance, overdue rent has been paid.

Alternatively, when an order sets out what the landlord or tenant (or both) promise to do to resolve the issue and what will happen if they don’t do it, it is likely to be sent to the Tenancy Tribunal to be sealed (stamped). This makes the mediator’s order legally binding and enables it to be enforced though the Ministry of Justice (in the same way as a Tenancy Tribunal order) if either party fails to comply with the order. If an order isn’t sealed, it can’t be enforced by the Ministry of Justice. 

The most common situations in which sealed mediator’s orders are issued are when:
•    the tenant has agreed to pay off the overdue rent in addition to the weekly rent. If the tenant doesn't obey the order, the tenancy may be ended.
•    the landlord has agreed to do work on the property. If the landlord doesn't obey the order, the tenant may be entitled to pay less rent until the property is fixed or end their tenancy early.

A copy of the mediator’s order will be given to or sent to all parties.

Enforcement of orders 

If no agreement was reached

If no agreement is reached, the next step is to attend a Tenancy Tribunal hearing.