One of new features brought in by the Children and Families Act 2014 was that mediation must be considered before most types of cases can be brought to the Special Educational Needs and Disability (“SEND”) Tribunal. Mediation itself is not new. All LAs have some form of dispute resolution services which try to resolve disputes between parents and LAs. Such informal dispute resolution have continued to take place since the Children and Families Act came into force and this is not expected to change.
However dispute resolution of this nature is voluntary and it does not generally take the same form as mediation. True mediation arises where an independent third party endeavours to resolve a dispute between two opposing parties. Mediation works best when both parties have “equality of arms”, i.e. where are both in possession of the same information and resources.
The new requirement for compulsory consideration of mediation applies in almost all cases where a parent or young person wishes to appeal to SEND against certain decisions of the LA and about the contents of the education sections of an EHC plan. (A parent or young person may choose to go to mediation regarding the social care and health sections of a plan but these cannot be the subject of an appeal to SEND).
This means that for most types of appeal, a parent or young person will need to obtain a mediation certificate, and this will need to be lodged with their appeal to the SEND Tribunal. If a parent or young person does not want mediation, the certificate will be from a mediation advisor and will confirm that the parent/young person has received information about mediation, but has decided not to pursue mediation to resolve their dispute with the LA.
If the parent/young person does enter into mediation, but this does not resolve the dispute, the certificate will come from the mediator and will confirm that the parent/young person has participated in mediation but that it was unsuccessful. They will then be able to lodge this certificate with the SEND Tribunal and proceed with their appeal.