Alternative Dispute Resolution

Sometimes legal action is not always the most effective way of resolving a housing problem, this page looks at what alternative solutions are available.

This content applies to Scotland

About Alternative Dispute Resolution

Alternative dispute resolution (or 'ADR') may provide a way to resolve an issue without the need for court action. Or where a simple procedure has been raised, the sheriff may direct the parties to make use of ADR[1]. There are several forms of ADR in Scotland; this section looks at the main ones. ADR isn't a substitute for legal advice and won't be appropriate in all cases. For example:

  • cases involving domestic abuse

  • issues that need urgent court action, e.g. to prevent eviction

  • emergency cases (such as child protection)

  • outcomes that need to be legally binding

  • when the other person doesn't want to take part

Some ADR services are free or may be eligible for legal aid.

Arbitration

An independent expert called an 'arbitrator' can be asked to make a decision on the case.

The chosen arbitrator can be an expert in the subject, such as a surveyor, but they don't have to have legal qualifications. An arbitrator can make decisions on the facts of the case and also on the law. However, if necessary, the arbitrator can refer the case to the Court of Session for a further opinion on the law.

The Chartered Institute of Arbitrators provides more information about arbitration in Scotland.

Mediation

Mediation is a dispute resolution process which involves an independent mediator. A mediator does not take sides but will try to help both parties to find a solution to their disagreement. Ultimately the parties decide what will happen and the terms of any agreement made. The process is voluntary. Neither party can be forced to take part.

Any agreement made during mediation is not binding unless both parties sign a mediated agreement, in which case anything agreed to may be legally enforceable. However, both parties are more likely to abide by mediated agreements because they have come up with the terms of their agreement themselves.

Mediation can help with a variety of housing problems including:

  • arguments with neighbours

  • antisocial behaviour

  • arguments in the family home

  • Relationship breakdown.

Different mediation services are available across Scotland. Contact the Scottish Mediation Network or the Scottish Community Mediation Network for more information.

Ombudsmen and Regulators

Ombudsmen are independent and look at complaints about public and private organisations. Ombudsman services will only consider a complaint where the organisations complaints procedure has been exhausted. The service is free to use and there is still the option of using another dispute process or court action if the applicant is unhappy with their decision.

Registered Social Landlords

Providers of council and most housing association housing are generally covered by the Scottish Public Services Ombudsman.

They can only review

  • whether there was 'maladministration' in the way a decision was made; and

  • whether it resulted in an injustice.

Maladministration can include:

  • an organisation or department not following its own policies or procedures;

  • rudeness;

  • taking too long to do something;

  • failing to do something they should have;

  • unfair treatment or discrimination

  • giving wrong or misleading information.

Role of the Scottish Housing Regulator

The Scottish Housing Regulator regulate the provision of the social rented housing sector in Scotland. They aim to protect the interests of

  • tenants of social landlords

  • homeless people

  • gypsy travellers and

  • owner occupiers who receive factoring services from a registered social landlord.

They do not have a role in dealing with individual complaints, however they may take action if there are concerns that a registered social landlord has a ‘significant performance failure’.

For example this may be where a landlord:

  • fails to carry out health and safety requirements, such as annual gas safety checks;

  • is not maintaining tenants’ homes or carrying out repairs in line with its legislative duties and published policies;

  • fails to have appropriate governance and financial procedures in place or apply them or

  • does not consult tenants about issues such as proposed rent increases and other policies that affect tenants.

Details of their remit can be found on the Scottish Housing Regulator website.

Private rented housing

There are two main Ombudsman services covering estate agents and letting agents (but only those who are registered with them). Because they cover services within the private sector they can generally look at whether a decision was fair and reasonable based on industry standards of good practice. They can also award compensation if they agree with the complaint.

The schemes are run by the Ombudsman Service and the Property Ombudsman.

The Scottish Government has produced a useful booklet about resolving disputes, which provides more information about the different kinds of Dispute Resolution.

Last updated: 15 September 2017

Footnotes

  • [1]

    Act of Sederunt (Simple Procedure) 2016 SSSI 2016/200