Education, Health and Care Plans
Mediation and Dispute Resolution
As part of the reforms to special educational needs, a greater emphasis on resolving matters without the need of a tribunal was a key government aim.
Going to a tribunal is a stressful, uncertain and often expensive experience for all concerned. Following an assessment, of up to 20 weeks, then with a two-month window to lodge an appeal, and then a further 20 weeks the appeal to be heard, the timeframe can really impact on what is right for the individual child.
Mediation as a process came in with the 2001 Code. Mediation was considered tobe successful. Getting everyone involved with the child around the table, discussing disagreements about provision, needs, outcomes and resources was extremely effective in a significant proportion of cases.
Mediation cannot resolve every dispute about provision and SEN, but in those cases where an agreement can be negotiated it means that steps can be taken to make the necessary changes that child very quickly.
Mediation is not compulsory. A parent or young person does not have to go to mediation. Mediation is a free service for the learner. The parent or young person pays nothing.
Unless the dispute is about naming a specific educational institution, a mediation certificate is necessary to enable a tribunal claim to be made. In practice, this means that aparent or young person or carer leads to speak to a mediation adviser to consider if they wish to proceed with mediation, and if not a certificate is issued.
Mediation looks at resolving conflict between individuals it is particularly appropriate for SEN disputes. Finding a way forward, agreed by all parties is achievable using mediation.
Mediation offers a confidential, safe environment to discuss the difficulties and work towards solutions. Discussions are protected by legal professional privilege and the safeguards are built into the process.
By seeking to work with the parties in dispute, mediation provides a completely unique environment.
The local authority are obliged to attend a mediation if the parent, carer or young person requires it. Other professionals can who have knowledge of the child and situation can be invited. Having a meeting that is chaired by an independent, neutral third party is often a very different experience for everyone involved.
The mediator always remains as a neutral, impartial third party who is there to facilitate discussion and negotiation. The mediator does not take sides, make judgements or have any financial or emotional interest in the outcome.
The mediator can ask questions to understand the situation more fully. The mediator can seek to understand the practicalities of what is available, the issues at home and at school, logistical problems and to ensure everybody has an opportunity to state their case.
The mediator can never provide advice about a course of action, options are available or comment on the actions of one or other party.
As mediation is voluntary and the parties are there by express agreement the pressures are reduced. Parties determine the agenda for the mediation, ensuring that everyone gets to raise the issues that matter to them.
Mediation relies on a careful assessment of the situation. Not every situation is suitable. Even if the parties wish to proceed it may not be right case.
The initial work involves ensuring that the participants understand the process. They must be willing to take part, and have authority to make decisions and fulfil agreements. If appropriate it would always be preferable to meet the person at the heart of the dispute too.
Sometimes there are third parties involved, and sometimes not. Additional information may be fed into the process with the agreement of all parties.
Before the mediation, a number of discussions will take place. It is important to try and get everybody to attend the meeting, but if people cannot attend within the timeframe that they can be invited to submit written reports, or for information through one of the attendees. The local authority special educational needs officers, the parent, carer or young person do need to be present.
In the meeting, there is a discussion about what’s actually in dispute, what has already been done, what people feel needs to change, and an exploration of each other’s perspectives.
Sometimes, it becomes obvious within the mediation that there has been a misunderstanding all information becomes available which leads to a change of opinion on the part of the local authority. Mediation meetings can lead to agreements to assess, to amend the plans, to issue plans, to see greater information and understanding, to set review timeframes - there is no limit to what can be agreed in a mediation.
If an agreement is reached it must be realistic. It needs to be clear. The terms need to be agreed by everyone. Everyone who is party to that agreement needs to be happy to work to it.
When the mediator is contacted, information has to be given about the process. If mediation is to be pursued, the local authority must be told within three days of that decision. The mediation appointment should then be arranged within 30 days. After the mediation, a certificate must be issued within three working days.
Appeals have to be lodged following the local authority decision either within two months of the decision letter, or 30 daysafter the mediation certificate has been issued. The will say whichever is greater time is the deadline date.
When mediation works it can lead to agreements about what should happen next, it can help the rebuild relationships between professionals, parents, carers and young people. It can lead to really good, positive outcomes that meet an individual’s needs. It can provide access to the right educational provision, in the right educational institution, with a clear plan that everybody understands and is committed to.
Mediation is so flexible it fits around the situation. Every mediation fits the needs of the disputants and not the requirements of the process.