The terms ‘Disagreement resolution’ and ‘mediation’ are often used interchangeably and mediation can also be described as a form of disagreement resolution. However, under the Children and Families Act 2014 they actually refer to different processes.
As you will see in more detail below, Mediation can generally only be requested when an appeal is being considered to the SEND Tribunal about specific decisions during the EHC needs assessment process and/or the special educational element of the EHC Plan. It can also be used for the health and social care elements of an EHC plan (as these cannot be appealed on their own). Disagreement resolution has a wider remit and can be used for all children with SEN, not just those with an EHCP or in the EHCNA process.
Why is it important to know about them?
The Send Code of Practice (2015) states that Local authorities (LAs) must make known to parents and young people the possibility of resolving disagreements across education, health and social care through disagreement resolution and mediation procedures.
Local authorities may contract disagreement resolution services and mediation from the same providers – in West Sussex this is Global Mediation.
As mentioned earlier, mediation applies specifically to parents and young people who are considering appealing to the Tribunal about EHC needs assessments and the special educational element of the EHC Plan or who disagree with the health and/or social care elements of an EHC plan.
The purpose of mediation is to look for a way forward that all parties agree with, and therefore often involves more discussion and decision making on both sides than in a Tribunal setting. A mediator should be independent of either party and be able to provide opportunity for both sides to voice their views in a controlled environment.
Mediation can be particularly beneficial when a parent carer is wanting to challenge a decision that has been made around health & social care aspects of an EHC plan but are happy with the educational elements. (in this case an appeal cannot be lodged as there must be an educational element to be able to do so).
Who organises Mediation in West Sussex?
In West Sussex, mediation services are provided by Global Mediation. Parents/carers who want to lodge an appeal should contact Global Mediation who will help them decide whether to take up the option of mediation before appealing. Their details should be included in the letter you receive from SENAT setting out their decision and the reasons for making it. If you choose mediation, the mediation adviser will contact the LA with your request and the local authority must then ensure that a mediation session is arranged within 30 days. Mediation will be between the parent carer and a representative of the LA (often someone from or with links to SENAT).
If a parent of young person decides to go to mediation, there is a duty on the LA to take part. If the mediation is about the health element of the plan as well as either the education or social care parts of the plan then the health commissioning body or bodies must also take part.
If you decide against mediation, a mediation certificate will be issued and sent to you (generally via email) within 3 days. You must submit this certificate with your appeal to the SEND tribunal.
Is mediation compulsory?
Before bringing an appeal to the SEND Tribunal, you need to have considered having mediation. It is not compulsory to have mediation, but must have been considered*. If you decide to have mediation and are not satisfied with the outcome, you can then continue to appeal. Alternatively, you can go straight to appeal but you will need to have a mediation certificate to submit with it, so you need to have talked it through with a mediation adviser. This certificate proves that you have completed or at least considered mediation.
*If you are appealing on Section I of the EHCP (placement) only – you do not have to consider mediation and therefore a mediation certificate is not needed to lodge an appeal.
We would always advise that a parent/carer at least considers mediation before dismissing it. It does not prevent an appeal from being lodged but it does give an opportunity for you and the local authority to re-consider the situation and possibly reach an agreement locally and in a more timely way than going to appeal. We also advise parent carers to keep talking to their planning coordinator and the school (if appropriate) throughout this process, as support is still likely to be needed whilst waiting for a mediation date etc. Mediation does not affect your appeal in any way.
A decision by parents and young people not to use disagreement resolution services (including Mediation) has no effect on their right to appeal to the Tribunal and no inference will be drawn by the Tribunal if the parties to a disagreement have not used the disagreement resolution services. Disagreement resolution meetings are confidential and without prejudice to the Tribunal process and the Tribunal will disregard any offers or comments made during them. Partial agreement achieved by use of disagreement resolution services can help to focus on the remaining areas of disagreement in any subsequent appeals to the Tribunal.
SEND Disagreement Resolution – Mott MacDonald (sendpathfinder.co.uk)
What makes mediation effective?
For mediation to work well:
- the mediation session should be arranged, in discussion with the parents or young people, at a place and a time which is convenient for the parties to the disagreement. The body (or bodies) arranging the mediation must inform the parent or young person of the date and place of the mediation at least 5 working days before the mediation unless the parent or young person consents to this period of time being reduced.
- the mediator should play a key role in clarifying the nature of the disagreement and ensuring that both sides are ready for the mediation session. The mediator should agree with the parties on who needs to be there.
- mediators must have sufficient knowledge of the legislation relating to SEN, health and social care to be able to conduct the mediation
- the local authority and health commissioner representative(s) should be sufficiently senior and have the authority to be able to make decisions during the mediation session
- the parents or young person may be accompanied by a friend, adviser or advocate and, in the case of parents, the child, where the parent requests this and the local authority has no reasonable objection. In cases where parents are the party to the mediation and it is not appropriate for the child to attend in person the mediator should take reasonable steps (within terms of time, difficulty, expense etc) to obtain the views of the child. Young people with learning difficulties, in particular, may need advocacy support when taking part in mediation
- both parties should be open about all the aspects of the disagreement and not hold anything back for a possible appeal to the Tribunal on the SEN aspects of EHC plans
- where a solicitor has acted as the mediator, under the Solicitors’ Code of Conduct (rule 3 Conflict of interests), he or she should not also represent either party at the Tribunal
- generally, legal representation should not be necessary at the mediation, but this will be a matter for the parties and the mediator to agree. If either party does have legal representation they will have to pay for it themselves
Local authorities must make the availability of disagreement resolution services known to parents, young people, headteachers, governing bodies, proprietors and principals of schools and post-16 institutions in their areas and should make them known to others they think appropriate.
Disagreement resolution arrangements cover all children and young people with SEN, not just those going through the EHCNA process or who have an EHC Plan. In situations where EHCNA process / EHCP does not apply, disagreement resolution would be between parent(s) / young person and school / college.
They can provide a quick and non-adversarial way of resolving disagreements.
Unlike mediation, where parents and young people must contact a mediation adviser before registering an appeal about EHC needs assessments or the SEN element of an EHC plan, Disagreement Resolution is not compulsory at any time.
What sort of disagreements does Disagreement Resolution cover?
The disagreement resolution service helps to resolve four types of disagreement or to prevent them from escalating further. Parents are more likely to use disagreement resolution in type 2 situations:
The first is between parents or young people and local authorities, the governing bodies of maintained schools and maintained nursery schools, early years providers, further education institutions or the proprietors of academies (including free schools), about how these authorities, bodies or proprietors are carrying out their education, health and care duties for children and young people with SEN, whether they have EHC plans or not. These include duties on the local authority to keep their education and care provision under review, the duties to assess needs and draw up EHC plans and the duty on governing bodies and proprietors to use their best endeavours to meet children and young people’s SEN
The second is disagreements between parents or young people and early years providers, schools or post-16 institutions about the special educational provision made for a child or young person, whether they have EHC plans or not
The third is disagreements between parents or young people and CCGs or local authorities about health or social care provision during EHC needs assessments, while EHC plans are being drawn up, reviewed or when children or young people are being reassessed. Disagreement resolution services can also be used to resolve disagreements over special educational provision throughout assessments, the drawing up of EHC plans, and while waiting for Tribunal appeals, at review or during re-assessments
the fourth is disagreements between local authorities and health commissioning bodies during EHC needs assessments or re-assessments, the drawing up of EHC plans or reviews of those plans for children and young people with SEN. In relation to EHC plans, this includes the description of the child or young person’s education, health and care needs and any education, health and care provision set out in the plan. These disagreements do not involve parents and young people.
How do I request Disagreement Resolution (that isn’t mediation)
The term ‘Disagreement Resolution’ itself is generally used to mean mediation (which as mentioned earlier is for statutory purposes for EHCNA and EHCPs). However as the law is quite clear that disagreement resolution must be made available for all children with SEN, should you want to explore this option as a way of resolving disagreement (especially with school / college) then contact Global Mediation’s SEN Case Manager on 0800 064 4488 or email firstname.lastname@example.org