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Should I go to Mediation or the SEN tribunal?
- AuthorAndrew Barrowclough
Our specialist education law solicitors are often asked about the issue of mediation and whether it is worthwhile for parents in England.
The Children and Families Act 2014 introduced for the first time the need for mandatory mediation to be considered by a parent in England prior to being able to lodge an appeal to the SEN Tribunal. The original plan as per the Bill before it became law would have forced parents to actually attend a mediation meeting. This proposal was softened in the new act and now it is only necessary for parents to consider mediation.
The process is essence is that a parent is informed of an LEA’s decision such as a refusal to assess or a refusal to agree to their named specialist school. The refusal letter gives details of the mediator and a parents can then either elect to go to mediation to try to get the LEA to reverse their (usually unreasonable) decision or they can pursue a tribunal appeal. The catch is that before lodging the appeal they must telephone the mediation company to hear about mediation first and only thereafter can a mediation certificate be issued. The certificate is needed to enable any new appeals to be lodged when they relate to an EHC assessment or EHCP.
The mediation companies used throughout England vary in terms of their independence and expertise. Some are practically within the LEA whereas some are entirely independent. The Mediator has to discharge it’s ‘duty’ under The Children and Families Act 2014, Part 3, section 55(4)(a) in terms of giving standard information.
All of the above seems entirely reasonable and possibly helpful. The difficulty however is that the mediation companies are obviously paid a premium for arranging mediation. They are private companies and charge for their services. They therefore have a vested interest in getting parents to sit down and discuss matters with the LEA before an appeal is lodged. LEA’s are also very keen on results and a result for them is that the parent does not lodge an appeal against their flawed decision. Therefore what tends to happen is that parents who are confused and daunted by the Tribunal process are scared off from even proceeding or convinced to engage in mediation.
The view of our SEN solicitors at HCB is that mediation at some point of the tribunal process can be helpful but not at the start. Before refusing to agree to the parents’ request for assessment or placement a LEA has usually had weeks to consider all of the evidence. They have expert reports and usually should agree with the parental views and independent experts. They often don’t. They refuse such requests for a variety of reasons but at that initial stage mediation is largely a waste of time because it is very unlikely that they will suddenly reverse their decision. Whilst parents are mediating they are usually becoming further exhausted by the process and they are being fed misinformation which deflates them and makes them think they are wrong (which they probably aren’t). In addition the tribunal process is even further delayed.
Mediation does have a role and at HCB our education law solicitors try very hard to settle every case before tribunal but formally mediating before a tribunal is lodged is rarely in our experience a success. If you need advice regarding the SEN tribunal mediation process please contact our specialist education lawyers on 02920 291704.