Julian Sidoli del Ceno

An investigation into lawyer attitudes towards the use of mediation in commercial property disputes in England and Wales

Purpose – The paper seeks to examine empirically the attitudes of English lawyers towards mediation in commercial landlord and tenant disputes. Despite much support from numerous sources there has been very little actual take‐up in this sector. It is premised that the future growth of mediation in commercial property disputes is hindered by the negative or sceptical perspectives held by some lawyers towards mediation.Design/methodology/approach – The paper is based on data from questionnaires and a series of qualitative interviews with a variety of landlord and tenant lawyers combined with a thorough examination of existing literature.Findings – Many lawyers were not keen to recommend the use of mediation. This was partly because of unfamiliarity as well as concerns that mediation is not a genuine legal process and that consequently it lacked status. Legal culture was identified as a problem here. Lawyers also felt that mediation was inappropriate in many cases. Education was suggested as having an import...

Conflicts in Conservation: Mediation and conservation conflicts: from top-down to bottom-up

Conservation conflicts tend to be highly complex, feed on uncertainty and affect people and organisations at different scales (Chapter 15). Traditionally, resolving these conflicts has been a ‘top-down’ process, led by governments and their official representatives, supported by scientifically trained specialists, with those affected by the conflict often relegated to the role of data-gatherers and passive recipients of information and instructions. These top-down conflict resolution processes typically seek the ‘right’ answer, as determined by national politics, laws or academic opinions. They are often framed in Western discourses about the intrinsic value of nature, over-riding older, more utilitarian values as ‘backward’ and ‘damaging’ (Zammit-Lucia, 2011). However, rather than resolve conflict, these top-down approaches have often inflamed conflict – for example, prompting violent protest or resettlement of protected areas by evicted communities (Brockington and Igoe, 2006). In contrast to this, it has been claimed that more bottom-up, participatory approaches to controversial conservation issues have the capacity to avoid, cope with or resolve conflicts. Bottom-up approaches to resolving conservation conflicts, it is argued, have the capacity to build trust and facilitate learning among stakeholders, who are then more likely to support project goals and implement decisions in the long term (Beierle, 2002; Reed, 2008). However, there are also many critics of bottom-up approaches to conservation conflicts. For example, problems with stakeholder representation or participatory process design mean processes fail to achieve their goals or exacerbate conflict (Stringer et al., 2007; Scott, 2011). As such, it has started to be recognised that the outputs (e.g. strategies, plans or other agreements) and ultimate outcomes (e.g. social learning, network forming, preference change, implementation of solutions) of bottom-up approaches to conservation conflicts are highly dependent on the selection of participants, the process design and the context in which they are conducted (de Vente et al., in press). Top-down and bottom-up approaches represent two opposite extremes, and in reality elements of both approaches are often combined successfully.

Human Rights and Protection against Eviction in Anti-social Behaviour Cases in the Netherlands and Germany

The European Court of Human Rights requires that any person at the risk of losing their home should be able to have the proportionality of the eviction determined by an independent tribunal in the light of the relevant principles under Article 8 echr. Consequently, member states of the Council of Europe are obliged to implement a minimum level of protection against the loss of the home. This paper analyses how the requirements are implemented in Dutch and German tenancy law with a focus on eviction cases concerning anti-social behaviour. With the help of a comparative analysis several methods of implementing the European requirements are identified. The Netherlands and Germany seem to comply technically with the requirements because of national built-in proportionality checks. However, it is questionable whether the European requirements really improve the position of tenants or whether they should be characterised primarily as a procedural hurdle that courts have to meet.

Adjudication in tenancy deposit scheme disputes: Agents’ perspectives

Purpose – The purpose of this paper is to examine empirically the operation of tenancy deposit protection within England and Wales. The paper consciously focuses solely on the views and perspectives of letting agents operating in the various schemes. Design/methodology/approach – The paper is based on a series of semi-structured qualitative interviews with lettings agents in two distinct geographical urban areas, Birmingham and South Wales. Participants were selected for their market presence within a given area and the fact that they were all members of approved regulatory schemes. Findings – Overall, most agents were broadly happy with the process and considered adjudication to be an appropriate form of resolution for tenancy deposit disputes given the often small monetary value of the disputes and the large volume of cases. Concerns were raised, however, regarding the heavy bureaucratic burden placed on agents and on the perceived evidential burden on the landlord. There being a widely held view that a...

Compulsory mediation: civil justice, human rights and proportionality

Purpose – This purpose of this paper is to critically examine jurisprudentially the current judicial and academic scepticism that exists in some quarters with regard to compulsory mediation primarily from the context of England and Wales. In doing so, it seeks to respond to well-articulated and established concerns with regard to any compulsion in mediation as outlined by Hazel Genn among others as well as some senior members of the judiciary. Design/methodology/approach – This paper seeks to critically examine jurisprudentially the current judicial and academic scepticism that exists in some quarters with regard to compulsory mediation primarily from the context of England and Wales. In doing so, it seeks to respond to well-articulated and established concerns with regard to any compulsion in mediation as outlined by Hazel Genn among others as well as some senior members of the judiciary. Findings – This paper argues that the worries concerning compulsory mediation are unnecessary as they are based on a narrow reading of Article 6 rights, one not shared by many European lawyers, in particular the view taken by them with regards to proportionality. It further argues that compulsory mediation can be an appropriate, proportionate method of dispute resolution in some cases recognising that mediation is not a bar per se to subsequent litigation. Originality/value – Mediation is an important topic in contemporary law. The theoretical and jurisprudential aspects of mediation have as yet been underdeveloped. This paper is a contribution to this developing debate.

Selective licensing and resident satisfaction in social housing: a UK case study

Purpose – The purpose of this paper is to examine empirically the effects of selective licensing on an area of social depravation. The paper consciously focuses solely on the views and perspectives of the residents as opposed to that of the landlord or housing professional.Design/methodology/approach – The paper is based on a series of structured qualitative interviews with a statistically significant percentage of residents in the given area.Findings – The selective licence has had some limited but positive effects on the well‐being of the residents. Standards of property management and perceptions of anti‐social behaviour had also improved to a degree. It was clear, however, that many residents could not distinguish the selective licensing process from more generic local authority intervention. Many residents reported an increase in their “self‐esteem” due to the interventions of the local authority, however labelled.Originality/value – The paper provides original data on the attitudes and perspectives ...