Whilst recognising that no party can, or should, be forced to mediate, the dilapidations pre-action protocol obliges parties to consider whether some form of Alternative Dispute Resolution (ADR) would be more suitable than litigation.
Following the 2017 dilapidations case Thakkar v Patel, it is now also well known in the dilapidations community that if a landlord or a tenant refuses to mediate, or drags their heels in this respect, the court can impose harsh and costly penalties.
Notwithstanding this, when Thrings presented at a RICS dilapidations conference in November 2019, of the 160+ delegates attending, less than 10 percent said they had participated in any form of dilapidations mediation.
In a CEDR (Centre for Effective Dispute Resolution) 2017 audit of 12,000 wide-ranging mediations on property and other issues, 65 percent of those mediations settled on the day. Another 19 percent did so shortly after the mediation, meaning that overall 86 percent of the 12,000 mediations were successfully settled out of court.
We predict that if, and when, a greater critical mass of dilapidations professionals have experienced professional mediations, this approach will become significantly more widespread, and a favoured ADR tool in dilapidations disputes.
In our experience, the timely mediation of a dilapidations dispute provides good value for money (especially in comparison to litigation and court proceedings) and, statistically at least, has very good prospects of success.
To discuss your dilapidations query with an expert, please get in touch with a member of Thrings’ Dilapidations team. Our wider Property Litigation team is on hand to help with other property related disputes.
