Spotlight on recent case law - the benefits of a lawyer advocate

SEN mediation isn’t my usual area of practice but a case that recently caught my eye was Kumar v The London Borough of Hillingdon [2020] EWHC 3326 (Admin) which concerned the issue of whether a mother who was challenging her son’s Educational and Health Care Plan (EHCP) was allowed to bring a lawyer with her to the mediation. The discussion in the judgment made me think further about the role of the lawyer at a mediation.

The background

The background to this matter was, unlike many mediations, prescribed by statute and by a statutory code of practice. The Children and Families Act 2014 (the Act) makes provision for families in dispute with their local authority over an EHCP. They have a right of appeal to the First Tier Tribunal and there’s also a right to mediation. Where a parent invokes that right then the local authority must arrange for mediation between it and the parent, ensure the mediation is conducted by an independent person and participate in the mediation. The Special Educational Needs and Disability Regulations 2014 (the Regulations), made pursuant to the Act, sets out in more detail the provisions related to mediation. Regulation 38 (1) of the Regulations provides:

The following persons may attend the mediation-

• the party to the mediation

• any advocate or other supporters that the child’s parent or the young person wishes to attend the mediation

….

• any other person, with the consent of all of the parties to the mediation, or where there is no such agreement with the consent of the mediator

Ms Kumar wanted to bring her lawyer to the mediation. The local authority refused to agree to this, arguing that a lawyer wasn’t an advocate under Regulation 38(1)(b) and that if she wished to bring a lawyer to the mediation she needed to rely on Regulation 38(1)(e) which required the consent of the local authority or, without that, the consent of the mediator.  Ms Kumar challenged this by way of judicial review proceedings.

The court examined the wording of the relevant pieces of legislation and the Regulations and found in favour of Ms Kumar.

Mediating the mediation

Before considering the role of a lawyer at mediation, I think the initial response of the mediator to Ms Kumar’s request merits some consideration. The mediator initially supported the local authority’s position saying that ‘as mediation is an informal and non-legalistic process, unless both parties agree to the attendance of legal representatives, we will not be able to facilitate the meeting’ [para 7]. On receipt of Ms Kumar’s letter before action, in which she asserted her right to bring a lawyer under Regulation 38(1)(b), the mediator reversed their position.

To my mind – and with the reservation that I don’t know all the facts – I think this was a missed opportunity by the mediator. On occasion parties to a dispute can’t agree on various parts of the mediation – the venue, the date or, indeed, on who should attend. At that stage I see it as my role as the mediator to ‘mediate the mediation’ and try to help the parties resolve their differences. My job as mediator starts from the moment of appointment and in similar circumstances I would’ve worked hard to persuade the opposing party that the presence of a lawyer at the mediation may well be beneficial.

The lawyer advocate

However, what really caught my attention in this decision was the local authority’s view of the role of a lawyer at mediation. The authority argued that, as the Code stated, mediation is ‘an informal, non-legalistic, accessible and simple disagreement settlement process run by a trained third party and designed to bring two parties together to clarify the issues, and reach a resolution’ and that because of this there was no need to have a lawyer present. The local authority continued – ‘a lawyer advocate is likely to be objectionable and contrary to the spirit and place of mediation in the statutory scheme, because they inevitably formalise mediation proceedings, introduce an adversary approach, and put a strain on local authority resource in requiring the deployment of their own legal team to ensure equality of arms’ [para 20].

Such a position is, to my mind, a failure to understand the role of a lawyer advocate at mediation. In my experience lawyers have a key role to play in the success of a mediation, particularly in cases where, like this one, ‘there is a fundamental and frightening inequality of power’ [para 31].

Influence and persuasion

Of course, a lawyer is there to be an advocate for their client. But this doesn’t mean expressing the same hostility to the case and/or the opposition as the client holds.  Representing the client’s interests at mediation means helping the client to identify their true needs and wants and also exploring where there might be room for compromise. A skilled mediation advocate will appreciate that advocacy is about influence and persuasion and will focus on how the recipient receives messages which improve the prospect of settlement.

The valuable mediation advocate helps to create an atmosphere of compromise both in their own room and with the other side – and that starts before the mediation day. The mediation statement should be open, express a willingness to settle and identify which issues are the sticking points between the parties. It shouldn’t be a repetition of the legal issues which will have already been thrashed out in pleadings.

Dealing with emotions

In even the most commercial of cases, there is emotion – held by both the client and their legal team (I know from my private practice days that one can become very emotionally invested in a case that one has worked on for months and even years). A good mediation advocate assists by both managing their client’s emotion and also recognising their own so they can consciously put it aside on the mediation day.

Without the support of a lawyer (or friend) it can be difficult for the litigant to separate emotion from the facts and risks inherent in their case and begin to focus on the future, not the past. Indeed, in my experience, the absence of such support can be a significant barrier to the success of a mediation.

Risk assessment

Mediation is about assessing risk – what are the risks in not settling today? A lawyer at a mediation is there to guide their client, where necessary on the law but also in many circumstances to assist the mediator in reality testing their client’s position and advising their client on the risk analysis. Mediation is about compromise and a worthy mediation advocate can use their wisdom of experience – of the law and the process – to assist their client to reach a decision on settlement.

Lawyers at mediation

Of course there are some lawyers who, frankly, don’t assist at mediation – those who continue an adversarial approach or fail to give a reasoned assessment of the risks of not settling to their client. But, as Ms Justice Collins Rice noted in her judgment, it’s the role of the independent mediator to facilitate a constructive and problem-solving atmosphere and to challenge where it’s felt that a party’s advocate isn’t aiding the process. It’s not, as the court held, appropriate (or indeed lawful) for a local authority to simply assume that the presence of a lawyer at a mediation will take the process from an informal, non-legalistic one to an adversarial one.  In addition, there was no need for the local authority to field a legal team because Ms Kumar was bringing a lawyer - indeed, unnecessary participants at a mediation can also be unhelpful to the process.  The key is to have present those who need to be there and careful thought should be given to this before the mediation day, in consultation, if wished with the mediator.

The court noted that there was some evidence that the local authority has a policy or at least a practice of participating in mediation on the basis that no lawyers attend. It’s hoped that the court’s decision will lead to a review of the local authority’s practice because there really is no reason for a fear of having lawyers at mediation. Indeed, they should be welcomed as a key party to the process.