Today I wish to discuss a topic which may be somewhat controversial: the role of the Solicitor-Mediator. I will be focusing this debate solely on SEND Mediation as opposed to Family Mediation, which ordinarily uses solicitors as mediators as standard practice.
I was once asked by a parent (who also happened to be a Family Solicitor-Mediator) if I was up to date on my case law and legal precedent. The parent had misunderstood my role in the appeals process; she felt that I could not “win” her case without intimate knowledge of case law surrounding EHCP appeals. I am a SEND Mediator. I am not a Solicitor. I do not, have not, and indeed will not need to extensively study case law related to SEND appeals. That is not to say that I haven’t read the SEND Code of Practice; I can, and will, refer to it, or use it for evidentiary support and so that I know what other parties are referring to during a mediation.
I have seen it expressed online that if your Mediator is also a Solicitor, then as a parent, you will receive an “enhanced” mediation experience. I disagree with this premise. The role of Mediator and Solicitor is necessarily very different and I feel that it is best to keep that distinction. I would argue that being a Solicitor as well as a Mediator would simply muddy the water in the SEND service that I provide, although I think that the “enhanced” service of a Family Solicitor-Mediator can be genuinely useful. This is why…
SEND Mediators are not allowed to give advice. We have to remain completely impartial at all times. We are not there to take sides or point out who or what is right or wrong. We are not there to make any decisions or judgements or to help other people to make decisions or choices.
A Solicitor, on the other hand, is there to fight someone’s case, to inform on strategy and what to do next, to point out points of law and legal precedent, to highlight flaws in someone’s thinking and to correct errors. A Solicitor is used to “doing battle” with the other party and of seeing the conflict in terms of black and white – one side right and another wrong, where the desired outcome is a winner and loser. A Solicitor is used to working in a very formal, legal setting, where the use of authority and tactics are the name of the day.
A Mediator doesn’t do any of these things. It’s a very different role with a very different mindset. Restorative practice and mediation work from a totally distinct perspective; that of cooperation and win-win scenarios where everyone walks away from the meeting feeling listened to and respected, with an outcome that works for everyone. There is the expectation for a range of options and ideas to be discussed and explored openly, rather than just “my way is the only way”.
When I take phone call enquiries from parents who have to phone the mediation service to decide whether to mediate or to take their appeal directly to Tribunal, if they have spoken to a solicitor first, they invariably state that they have been advised to go directly to the SEND Tribunal and not to bother with mediation. This is despite the fact that SEND Mediation is free, and a solicitor charges a lot of money to represent clients in the Tribunal Hearing. Of course, a courtroom scenario is very comfortable for a Solicitor!
Often those whose only experience or knowledge of mediation is from Corporate, Workplace or Family Mediation, are very surprised by just how different the SEND mediation experience really is. In SEND mediation, you are not on trial and you do not need to “present a case” in a formal way. It is an informal chat to explain what you want and why and to hear from the LA representative as to why they have made the decisions they have and what can be done to resolve the situation. It is a two-way conversation. For this reason, a parent doesn’t need to be represented by a legal advisor (such as a Solicitor) although some choose to have a representative from a support and advice service, such as Support4SEND or IPSEA, or a friend or family member there for support.
A Solicitor excels in supporting their client and driving forward the argument to get the best possible outcome for them. They are single minded, driven and determined to win the case at all costs. They are in the perfect position to call people out if what they are saying contradicts the Code of Practice, case law or their argument. They are hardwired to spot the flaws in the other parties’ argument. This is exactly what is needed in the formal setting of the SEND Tribunal Hearing and this setting is the ideal time to have someone who you know will argue your case to the best of their ability and do all they can to get you the result you want. This is very reassuring for parents in a tribunal and can make a potentially intimidating situation seem far more manageable. The Solicitor will know the case law inside out as well as exactly the right thing to say at the right time to drive their argument forward.
In comparison, as a SEND Mediator I am there to facilitate the mediation meeting. By this I mean that I keep the meeting focused on the matter in hand and ensure that all points are covered and that everyone has been able to say everything that they need to. I keep the meeting calm and friendly and ensure that it is balanced. I make sure that everyone has had the opportunity to explain their side of things; to ask the right questions to guarantee that the whole picture is raised and discussed and is clear for all. If a topic is touched on but then the conversation moves on, I ensure that it is discussed later in the meeting at a suitable point. I ask the questions to help everyone consider alternatives and all the options available without prioritising or giving preference to a particular idea. I help people explore in their own minds what will work and what won’t and why, so that they can come to their own decisions that are right for them.
I also write down everything that is agreed in the meeting; all the action points, who will carry them out and by when. I am responsible for making sure that all the items raised are covered in the action points within this Memorandum of Agreement. I check that everyone is clear on what they have agreed to and are happy with it. During mediation, no one at any point is coerced or persuaded into agreeing something that they are not happy with.
To conclude, I feel that Mediators and Solicitors both carry out essential roles as part of the SEND appeals process, but with completely different processes and mindsets. On balance, I would argue that the two skill sets are hard to reconcile in this particular type of mediation, which makes it difficult for a Solicitor to act as a Mediator in these types of cases.
I would be interested to hear from others as to their views, particularly from solicitors who may themselves have trained in mediation – do you find you need to take off your “solicitor” hat when mediating SEND cases as a Solicitor-Mediator? Does this present a challenge for you or do you enjoy the dual role offered by this?
Loveday Penelope Fox
Independent SEND Mediator, Releasing Potential Mediation