Mediation, Lawyers and Special Educational Needs: Ensuring a Balanced Approach to Dispute Resolution

Abstract

Mediation is intended to provide a less formal and more collaborative forum for dispute resolution than a court or tribunal and one in which the parties themselves can actively participate in reaching a settlement. There is an assumption that, guided by a skilled mediator, they can do so without lawyer assistance. Indeed, the presence of lawyers tends to be discouraged, deemed not conducive to the informality and the non-adversarial character of mediation. Yet in a mediation there is often an imbalance of power and inequality of arms and fundamental rights can be at issue. One such area is special educational needs (SEN), applicable to nearly 1.5 million children in England, a field where disputes between families and local authorities are common. This article examines the case for and against lawyer involvement in mediations of this kind and considers what might be the most appropriate model of such involvement.