Compulsory Mediation – Good Idea?

17 Sep

So the draft legislation has been out a few weeks now and one of the biggest changes that has stood out most to me is that of Compulsory Mediation.

As things stand at the moment, A parent can lodge an appeal to the first tier tribunal as soon as the local education authority (LEA) has written to the parent setting out a child’s proposed provision in the form of a draft statement. If the parent doesn’t agree with the provision offered they then have the instant right to appeal. This is done by making an application to the first tier tribunal. In the meantime the parent can request that the LEA meet for Mediation which is conducted by an independent mediator. However, the appeal process is still well underway and most will find that this gives the LEA that much needed kick up the backside.

The draft legislation which has been written to assist the changes in SEN provision in the near future states…

… Mediation: This section applies where a child’s parent or young person intends to appeal to the First-tier Tribunal under section 28 in respect of anything done by a local authority, or the content of an EHC plan maintained by a local authority.
This section does not apply in respect of an appeal concerning only of

(a) the school or other institution named in an EHC plan;

(b) the type of school or other institution specified in an EHC plan;

(c) the fact that an EHC plan does not name a school or other institution.
The childís parent or young person must notify the authority of his or her intention to appeal.

The local authority must then arrange for mediation between it and the parent or young person.

The child’s parent or young person must take part in mediation under this section before making an appeal.

The authority must arrange for the mediation to be conducted by an independent person.

For the purposes of subsection (6), a person is not independent if he or she is employed by a local authority in England.

At the conclusion of the mediation, the mediator must issue a certificate to both the local authority and the parent or young person
(a) setting out what has been agreed by the parties (including any agreed time limits), or

(b) stating that no agreement has been reached.

The parent or young person may make the appeal only if

(a) no agreement has been reached, or
(b) the local authority does not act in accordance with what is set out under subsection (8)(a) before any agreed time limits expire.

Regulations may make provision about mediation under this section, in particular
(a) about giving notice;
(b) imposing time limits;
(c) enabling a local authority to take prescribed steps following the conclusion of the mediation;
(d) about circumstances in which mediation under this section is not necessary;
(e) about the circumstances in which the parties to mediation need not meet face-to-face during the mediation;
(f) about the consequences of failure to take part or properly take part in the mediation;
(g) about who may attend the mediation;
(h) where a childís parent is a party to the mediation, requiring the
mediator to take reasonable steps to ascertain the views of the child;
(i) about the provision of advocacy and other support services for the
parent or young person;
(j) requiring a local authority to pay the other partyís reasonable travel expenses and other expenses of a prescribed description, up to any prescribed limit;
(k) about the training, qualifications and experience of persons who may act as a mediator;
(l) requiring a parent or young person to take prescribed steps when appealing to the First-tier Tribunal under section 28 after mediation;
(m) requiring the First-tier Tribunal not to determine an appeal under section 28 if requirements imposed under this section have not been met.

Appeals which only concern the name of a school, college or other institution specified in the Education, Health and Care Plan or the type of school, college or institution specified in the Plan or the fact that the Plan does not name any school, college or other institution can be made without going to mediation. This is because the parent or young person will already have been able to request a particular school or institution in the further education sector, and had discussions with the local authority about which institution should be named on the Plan. Requiring mediation in these circumstances would involve repeating the same discussions. The clause gives the Secretary of State regulation-making powers concerning mediation as listed in the clause.

So, what does this mean exactly? Basically parents will not only have to agree to mediation but undergo it before lodging an appeal with the tribunal.

This seems somewhat odd to me. There is no mention of tribunal timescales which will need to be adjusted to fit the proposed changes. The only timescales mentioned are those agreed during mediation.

Worryingly, from what I have read this new legislation will only make the appeals process longer than it currently is which in all honest is already far too long! I understand that we need to reduce the number of appeals reaching the tribunal but this should only be due to the fact more children are getting their needs met and therefore no longer require the help of a judicial decision to ensure it happens.

Let’s be honest here! For most parents it’s only the lodging of the appeal that makes the LEA that little bit more active when it comes to communicating with parents! Most parents will request mediation but the majority of LEAs will take forever to respond. I understand that the legislation states the LEA must arrange this but as mentioned there is no mention on just how long they have to do so.

The draft legislation also states that the Mediator must be independent (not work for the LEA)! This is already meant to be the case and most mediators work for independent charities. However, it’s my experience that most parents feel bullied by the LEA even with a mediator present. The majority of SEN case workers come armed with a legal representive for the LEA as well as half the council. Most parents can’t afford to do the same and it’s often the case that only one parent can attend.

It was my understanding that the proposed changes to SEN were being put in place to not only help the child but lower the stresses put on parents. The Government should be confident enough that the proposed changes are enough to reduce the number of cases being brought to tribunal. Compulsory mediation is just another hurdle a parent must overcome before getting their case heard by a tribunal.

Why not state that LEAs and parents must take part in mediation before the case is heard by the tribunal. Stating the parent has to overcome all these hurdles before even lodging an appeal is nothing other than barbaric. It just seems like another way of putting parents off.

I’ve read the entire draft and there are a number of areas that concern me. Nonetheless there is only so much writing I can do tonight!

So, are you a parent of a child with SEN? Have you ever undergone mediation with the LEA? Have you ever take the LEA to the tribunal? What do you think of the proposed legistation in regards to mediation?

Check out the draft legislation here

7 Responses to “Compulsory Mediation – Good Idea?”

  1. Alan Sharland October 2, 2012 at 1:10 am #

    Claire, and others, to support the validity of your concerns about compulsory mediation here’s a ‘high level’ lawyer and senior academic stating similar views about the idea so you / we are in good company. I don’t see it as being a sustainable idea long term…’s a long video but gives many reasons why compulsory mediation is a no-no. Professor Dame Hazel Genn DBE, QC (Hon) from University College London Faculty of Law I don’t normally agree very much with lawyers views on mediation but I’m pleased to hear someone in such an influential position state views that pretty much exactly match my own.

  2. clairelouise82 September 23, 2012 at 9:39 pm #

    Thank u for your comment its very useful to hear the opinions of a mediator who has in fact done lea and parent mediation. I’m pleased I’m not the only one who think this isn’t right.

  3. Alan Sharland September 23, 2012 at 11:04 am #

    As a Mediator I would totally disagree with the idea of compulsory mediation and much of what you mention above seems incredibly and unnecessarily complicated. Mediation should be offered alongside a complaints or other process rather than be a step within it so that it doesn’t delay the steps within the complaints process and can be running in parallel with it. It saddens me because the original SEN Mediation guidelines were well written and in line with mediation practise and thinking. This seems more in line with ‘legal speak’ which is what mediation is meant to avoid. It also ‘requires’ an outcome that is either ‘agreement’ or ‘no agreement’ meaning the only purpose of the meeting is to come to an ‘outcome’ rather than enable a more effective and mutually understanding ongoing working relationship between parent and LEA/School. This may not need an ‘agreement’ as such, just a better insight into each other’s challenges so that conversations in the future are more co-operative rather than adversarial. I’ve been out of the SEN mediation ‘loop’ for some time as I mediate in other types of dispute now, so didn’t see these proposed changes coming but am quite astounded at how restrictive they seem to be and how, ultimately, ineffective it will make mediation within the process if implemented. Thank you for highlighting it. I notice it is draft legislation only so I hope there is a tide of protest at the notion from parents and practitioners alike, and, hopefully LEA’s. Someone mentioned ‘human rights’ above (clairelouise82) and I think the idea of compulsory mediation could be challenged on that basis as it is at risk of denying people their right to justice if they are ‘forced’ to have mediation instead. And that’s from a Mediator who recognises its appropriate use and where it may not be appropriate and would never claim it to be a panacea.

  4. Catherine September 21, 2012 at 11:32 am #

    Mediation might be usefull if it is led by someone completely independent and is about achieving a workable compromise. My local authority prides itself on being available to parents and it’s willingness to discuss issues. What it doesn’t seen to understand is that parents don’t want to keep having the same conversation. I have had reams of letters and dozens of pointless meetings where I have submitted detailed requests for specific information, only to receive vague generalisations. I am convinced that they have in-service training on how to use as many words as possible to say as little as possible. If mediation can be used to reduce this time wasting tactic, then it will be of value. I suspect though it will just increase the delays.

  5. clairelouise82 September 19, 2012 at 7:16 pm #

    Couldn’t agree more Deb. I see it as just another way of putting parents off! Just prolonging the battle if you like! I get that there is a need to reduce tribunal numbers though in my opinion this is only done by taking away the need to appeal in the first place… Meeting the child’s needs. Mediation should always be a choice, you should want to be there and value it as a positive step. Being made to do so feels like a breach in our human rights.

  6. Deb at aspieinthefamily September 19, 2012 at 5:32 pm #

    If I have read it right, I don’t like the idea of having mediation imposed on parents and also put in place by the LA. Also, who are these mediators; are they truly independent or do they emerge from a single interest charity or other organisation? I interpret this development as deliberately blocking parents going to appeal and creating more bureacracy. It undermines parents in my opinion.

  7. Mum September 18, 2012 at 6:09 am #

    You are spot on! The hurdles set before us are massive already, this will only add another one.

    We are going to tribunal imminently, from start to finish the whole process, since originally asking the school to statement will of taken 2 years. (lost 8 months before realising the school had no intention of applying on my childs behalf) It is only now in the last couple of days that our LA have actually started to listen, and it is only because I have learnt so much along the way and have a fab charity related representative that I have known how to respond to their dirty delay tactics.

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