Resolving disagreements through mediation
What is mediation?
Mediation is one of the forms of resolving disagreements about SEN matters that may avoid an appeal to the Special Educational Needs and Disability (SEND) Tribunal.
Why is mediation used?
Mediation is voluntary and confidential and can be used to resolve disagreements about education in relation to education, health and care (EHC) plans, including between parents/young people and early years providers/schools/colleges and local authorities (LAs). It can also be used to resolve disagreements with health commissioners and social care agencies.
How do I know when I can mediate?
LAs must make known to parents/young people the possibility of resolving disagreements through mediation procedures. Before an appeal can be lodged about an EHC needs assessment or the SEN element of an EHC plan, parents/young people must contact a mediation advisor.
What is the difference between a mediation advisor and a mediator?
A mediation advisor provides information about the benefits of mediation, whereas a mediator is someone who actually conducts the mediation. Both must be independent of LAs and/or health commissioners.
What mediation advice will I receive before mediation?
The SEN Code of Practice (CoP) says that mediation information which is given to parents/young people should be factual and unbiased, and should not seek to pressurise them into mediation. It also says that the mediation advisor should be ready to answer any questions from the parent/young person and explain: about certificates of mediation, and that 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. A mediation advisor/mediator should also explain the timescales that must be met, that the parent or young person’s use of mediation is voluntary, and that the LA will pay reasonable travel expenses and other expenses to the parent/young person and witnesses taking part in mediation.
Do I have to attend mediation before an appeal?
No, whilst mediation by independent mediators is often helpful in resolving matters, the only legal requirement currently is that, once the LA has issued the decision which can be appealed to the Tribunal, the parent/young person can only appeal to the Tribunal if they have obtained a mediation certificate. If the parent/young person contacts the mediation service that is informed to them and states clearly that they do not want to mediate, a mediation advisor will still have to issue a certificate for them within three working days, which they can then use to register an appeal. Also, if the parent/young person initially indicates that they want to go to mediation but then changes their mind, they can contact the mediation advisor who can still issue a certificate with which an appeal can be registered.
What happens after I receive mediation advice?
The CoP says that once the information has been provided it is for the parent/young person to decide whether they want to go to mediation before any appeal they might make to the Tribunal. Parents and young people have the right to appeal to the Tribunal but are not able to register an appeal without a certificate and the LA must tell them this in the notice sent to them with the LA’s decision. The certificate will enable the parent/young person to lodge their appeal, either within two months of the original decision being sent by the LA or within one month of receiving the certificate, whichever is the later.
What happens if I want to go to mediation instead of appealing?
If the parent/young person decides to proceed with mediation, the LA must ensure that a mediation session takes place within 30 days of the mediation advisor informing them that the parent/young person wants to go to mediation. If the parent/young person wants to go to mediation, then the LA must also take part. Parents/young people do not have to pay for the mediation session(s). If the LA is unable to arrange mediation in a case which involves a disagreement on a matter which can be appealed to the Tribunal within 30 days, it must tell the mediator. The mediation advisor must then issue a certificate within three days. On receipt of the certificate the parent or young person could decide whether to appeal immediately or to wait for mediation to take place. If the parent or young person initially indicates that they want to go to mediation about a matter which can be appealed to the Tribunal but changes their mind, they can contact the mediation advisor who can then issue a certificate with which an appeal can be registered.
What happens in the mediation process?
The CoP says that for mediation to work well the following should happen:
- the mediation session should be arranged in discussion with the parents/young people at a place/time convenient for all parties
- the body (or bodies) arranging the mediation must inform the parent/young person of the date/place of the mediation at least five working days before the mediation (unless they consent to this time being reduced)
- the mediator should agree with the parties on who needs to be there
- the LA/health commissioner representative(s) should be sufficiently senior and have the authority to be able to make decisions during the mediation session
- the parents or young person may be accompanied by a friend/advisor/advocate and, in the case of parents, the child, where the parent requests this and the LA has no reasonable objection (in cases where it is not appropriate for the child to attend in person the mediator should take reasonable steps to obtain the views of the child)
- young people with learning difficulties may need advocacy support when taking part in mediation
- if either party has legal representation they will have to pay for it themselves
- mediators must have sufficient knowledge of the legislation relating to SEN/health/social care to be able to conduct the mediation
- both parties should be open about all the aspects of the disagreement and not hold anything back for a possible appeal to the Tribunal on the SEN aspects of EHC plans.
What happens after the mediation?
Once mediation is completed about a matter which can be appealed to the Tribunal, the mediation advisor must issue a certificate to the parent/young person within three working days confirming that it has concluded. Mediation may not always lead to complete agreement between the parties. The CoP says that if the parent/young person still wants to appeal to the Tribunal following mediation, they must send the certificate to the Tribunal when they register their appeal. Parents/young people have one month from receiving the certificate to register an appeal with the Tribunal or two months from the original decision by the local authority, whichever is the later. When cases are registered with the Tribunal following mediation the Tribunal will deal with the appeal on the facts of the case. The Tribunal may cover similar ground to that explored in the mediation but will reach its own independent findings and conclusions. Mediation meetings are confidential and without prejudice to the Tribunal process and the Tribunal will disregard any offers or comments made during them.
Further information
Douglas Silas is the Principal of Douglas Silas Solicitors and runs the website: www.SpecialEducationalNeeds.co.uk. He is also the author of A Guide To The SEND Code of Practice (What You Need To Know), which is available for all eBook readers: www.AGuideToTheSENDCodeOfPractice.co.uk
The advice provided here is of a general nature and Douglas Silas Solicitors cannot be held responsible for any loss caused by reliance placed upon it.
