Mediation can avert many battles in SEN disputes.
Very often, when it comes to SEN, there is a substantial gap between the views of the parent and those of the local authority (LA). Parents who feel that school support isn’t working for their child can become involved in a struggle with the LA to try to secure the right provision.
Parents can challenge an LA’s decision through the SEND tribunal, which deals with disagreements about education, health and care (EHC) plans. Many see these coveted legal documents, which specify funded support, as passports to provision. When resource-strapped local authorities refuse to conduct an assessment for a plan, or decide not to provide one, parents have the right to appeal. Parents can also appeal the needs, provision or placement specified in an EHC plan.
This legal move may seem unavoidable for parents. The message to them from peer-support groups can often be “arm yourself and prepare for battle”. In fact, parents win over 80 per cent of appeals. The strain and long-term impact of a tribunal, though, can be immense. On top of the financial fallout, there is a draining “cost to the emotional, mental and physical well-being” of families, as described in the University of Warwick’s Review for the Department for Education (SEND disagreement resolution arrangements in England: review, March 2017). Proceedings also risk disadvantaging those who may struggle to argue their child’s case or pay for professional reports and lawyers.
The 2014 SEN reforms gave new emphasis to the option of free, independent mediation. If this process can lead to early agreement focused on a child’s best interests, the value of mediation is plain to see.
How does mediation work?
Mediators do not judge or propose solutions. They facilitate a controlled and balanced conversation through questioning, encouraging parties to hear each other’s perspectives and explore new ways forward. LAs must arrange mediation for any parent who asks for it. Parental choice to partake is voluntary, but appealing parents must seek advice on what mediation could offer.
LAs have to balance high caseloads and ever-limited resources, but mediation is typically the first chance for them to get a real picture of the child as a person rather than a case on paper. The meeting “opened up the conversation”, one parent told me, “the decision was rescinded in the first five minutes”.
In other cases, key information is exchanged and parties explore what actions should be put in place to provide the best support. “I left mediation with a very clear idea of what the right steps were and who to involve next”, said one SENCO. The atmosphere is usually cordial, constructive and far from combative, leaving parents satisfied their child is at the heart of the resolution. No-one, though, should be pressured to compromise; if rifts remain, the tribunal remains an option.
Mediation isn’t the answer in all cases; I spoke to one parent who felt that “the local authority just wouldn’t engage”. There are also questions about how a non-judicial forum can safeguard rights. I argue that mediators, although impartial, should be trained in SEN law. This is not current practice across-the-board and there will be less confidence in the process until it is.
Parents who can do their homework often get the most out of mediation. This means knowing what to prepare. An understanding of the law will empower parents to make all-important choices. My own research has shown that it is vital for children and young people to have their say, too. Their views are critical to the solution and it is our duty to listen to them.
Before seeing it in action, I was cynical about how mediation could forge fruitful dialogue in SEN, where positions appear polarised and ingrained. Actually, they are often not, and mediation brings a unique opportunity to establish this. That makes it a brilliant resource, if not a panacea. The University of Warwick review found that the majority of mediations led to resolution and significantly reduced the likelihood of appeal. If engaged with effectively by LAs, mediation has the potential to spare families months of strife and give them back their lives.
Ben Walsh is an English teacher and volunteers as a mediator in EHC plan disputes between parents and local authorities. He is part of a working group advising the Department for Education on the SEN reforms.