Compulsory mediation – lessons from Kumar v L.B. of Hillingdon: a personal perspective

by Jon Lang
The judgment of Mrs Justice Collins Rice in

Kumar v L.B. of Hillingdon

[2020] EWHC 3326 is, to my mind, essential reading, particularly given the present debate around compulsory mediation. It’s not in itself a case about compulsion, although Hillingdon were told in no uncertain terms to just get on with it, Mrs Justice Collins Rice saying in the last paragraph of her judgment that ‘

….the case for getting this mediation back on foot …… is pressing, and Hillingdon must now do so’.

But it’s a case that demonstrates that whatever the justifications for introducing a system of compulsory mediation, at ‘local’ level parties can have very different ideas as to the way it should be approached such that if disputing parties of unequal power are forced to use mediation, manifest unfairness could arise. It’s also a case that touched a nerve for reasons I explain below.

Hillingdon tried to block Mrs Kumar bringing her lawyer to a mediation concerning a dispute that had arisen over provision for her son’s special educational needs. This led to judicial review proceedings. Hillingdon employed various arguments but the one that surprised me the most, described by the Judge as their negative technical argument and summarised at paragraph 20 of her judgment was that

‘…for mediation to work it is not only unnecessary to have a lawyer, it is necessary not to have a lawyer, unless the local authority agrees or the mediator consents. A lawyer advocate is likely to be objectionable, it is said, and contrary to the spirit and place of mediation in the statutory scheme, because they inevitably formalise mediation proceedings, introduce an adversarial approach, and put a strain on local authority resources in requiring the deployment of their own legal team to ensure equality of arms’.

What poppycock!

A personal view

The benefit to a parent in having their lawyer attend mediation didn’t seem to feature much in Hillingdon’s thinking. Part of a lawyer’s job (at mediation) is to make sure their client is happy with the direction, tone, pace and amplitude of debate (and if not, to do something about it), and to make sure their client doesn’t feel unduly pressured or swept along towards a sub-optimal settlement just for settlement’s sake. Clients have the comfort of knowing that someone is

on their side

and that that someone

only

has their (or their child’s interests) at heart. Perhaps local authorities in these types of cases should be under a

positive

duty to ensure parents

always

have legal representation available to them!

I was a litigation lawyer for around 20 years. I’ve been a full-time mediator for almost as long. Most importantly, for present purposes, I was in the shoes of Mrs Kumar for a long time, battling on and off with my Local Education Authority (LEA) for the best part of 10 years. I did seek advice from specialist lawyers and if we had mediated, I would have wanted them with me. I would have been horrified if that had been blocked.

Hillingdon’s arguments were given short shrift by the Judge. At paragraph 31 of her judgment, Mrs Justice Collins Rice said ‘

Parenting a child with special needs is demanding enough; disputing with a local authority is daunting for the most confident and best-equipped parent; the right to have a supporter is just that. It does not matter who they are, lawyer or not. It is none of the local authority's business’.

The Judge captured so well the essence of these types of disputes and went on to find against Hillingdon, concluding ‘

Ms Kumar is entitled to bring along any supporter she wishes. That supporter may be her lawyer, or anyone else she chooses. In refusing to accommodate her choice, and in refusing to arrange and participate in mediation, Hillingdon is in breach of its statutory duties’

(paragraph 36).

Lessons for the future

So let’s unpick this a little. We have a mediation about a child. We have a party (the local authority) that holds all the cards and with very different interests to the parent of that child, but telling the parent who they can and can’t have at a mediation. Enter the mediator, the third party neutral who builds trust with each side and then sets about brokering a resolution. Many mediators will do what they can to address stark imbalances of power, but it’s not their role to police fairness; it’s to bring finality. The harsh reality of many of these types of cases is that the mediator is part of a process whereby the LEA does their best to encourage a parent to accept less support for their child than they (the parent) has been advised is needed. For the child, the outcome may be life-changing; for the local authority, it’s about the allocation of scarce resources. A parent should have as much support available to them as possible!

For those minded to think that this is a cynical view borne out of my own personal experiences rather than one grounded in reality, I suggest they spend some time talking to charities offering support to parents like Mrs Kumar. I attended a weekend workshop organised by SOS!SEN some years ago. Beforehand, I thought I was having a hard time. I came away feeling quite fortunate, such were the awful experiences (with LEAs) recounted by others.

As dispiriting as I found the case of

Kumar v L.B. of Hillingdon

to be, as a mediator, there’s always a silver lining. Here, it’s what Mrs Kumar’s case demonstrates, namely that even with a process as wonderful as mediation, dangers lurk, and that as we begin to seriously consider a system whereby disputing parties, often of unequal strength and differing approaches, are compelled to embark on a by and large unregulated process behind closed doors, the need for appropriate checks and balances becomes absolutely essential.