As anyone who has ever been involved in litigation can confirm, it is exhausting. Mentally, emotionally, and frequently financially, it drains time, energy and resources. Recognising this, the government took steps when it overhauled the Special Educational Needs and Disabilities (“SEND”), system in England in 2014, to encourage alternative forms of dispute resolution. This means that if you are unhappy with certain decisions of a local authority, s.52 of the Children and Families Act 2014 (“CAFA”) provides a legal right to mediate, rather than going straight to appeal.
In theory, mediation is a less formal, less adversarial and less time-consuming route to resolving disagreements. You can mediate any decision that you could appeal to the First Tier Tribunal SEND (“FTT SEND”), including where the local authority has refused to conduct an Education Health and Care Needs Assessment (“EHCNA”), where they have refused to Issue an Education Health and Care Plan (“EHC Plan”) and regarding the content of any EHC Plan that has been issued. Both the Health and Social Care elements of an EHC Plan as well as the sections relating to Education, can be subject to mediation.
Mediation is completely voluntary for parents and carers. The local authority, however, cannot refuse mediation and must arrange it within 30 days of being asked; although mediation can still take place beyond this time.
Mediation as a process works best where there are a range of possible outcomes to a dispute and everyone involved can come away feeling as though they have achieved some, even if not all, of what they wanted. As such, mediation is not ideally suited to resolving binary disputes such as whether an EHCNA should be conducted or an EHC Plan issued. Nonetheless, it is possible to persuade local authorities to overturn these types of decisions at mediation, often where new evidence has come to light between the original decision being made and the mediation meeting.
Done well, mediation fosters a cooperative environment where all parties can express their concerns and work together towards a solution. As a non-adversarial process, mediation can help maintain positive relationships between parents/carers and local authorities, and compared to an appeal, mediation is generally both quicker and less stressful.
However, the success of mediation hinges on all parties' willingness to participate and to compromise. It can only be effective if local authorities send someone to the mediation who has the authority to make binding decisions, and this does not always happen. Further, mediators are not judges and they cannot order either party to do anything.
Despite these challenges, it can be worthshile to pursue mediation. To get the best out of mediation it is important to remember the following:
Be clear on what you want to achieve. This will guide your discussions and help you stay focused on your objectives.
Keep an eye on timescales. If the mediation is not arranged within the statutory 30 days you can still go ahead, but it might be a better use of your time simply to appeal as this may suggest an absence of willing on the part of the local authority.
Don’t be disheartened if mediation doesn’t resolve the issue. This doesn’t mean that your case isn’t a good one and plenty of parents/carers who fail to get the result they want at mediation go on to win their appeal.
SEND Advocacy is able to support you through mediation, including appearing at a mediation meeting. If you need someone in your corner to help you secure the education your child deserves, contact us today.
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