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

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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 the need for a lawyer’s involvement. Indeed, the presence of lawyers tends to be discouraged on the basis that it is 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 one and half million children in England, where disputes between parents or young people and local authorities are common. Taking its cue from a recent High Court judgment upholding the right to attend SEN mediation with a lawyer, 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.

Bibliographical metadata

Original languageEnglish
Pages (from-to)1-23
Number of pages23
JournalKing's Law Journal
DOIs
Publication statusPublished - 1 Aug 2021