Our volunteer advisers are often asked by parents and young people if they should mediate, or go straight to appeal. It is a personal decision and will depend entirely on your child or (if a young person) your circumstances.

When you have the right to mediation, there are lots of things you might need to consider when deciding whether or not to try it. Here are some of these factors to consider.

Right to mediation

Remember you always have the right to try mediation if you can appeal a decision in the SEND Tribunal or where an EHC plan is made, amended or replaced. This includes placement (section I) only issues.

Previous discussions with your local authority (LA)

If you have had a lot of discussions already with your LA you may feel mediation would be of little use and you want to save time. If you have never had a proper discussion with the LA about why it has reached its decision, mediation may help. You might also think about mediating to give yourself more time to appeal. 

Current SEND Tribunal appeal hearing timelines

You may want to consider that currently it can take a year for an appeal to the SEND Tribunal to be heard, and this may affect your decision on mediation.

Although asking for mediation will delay the point at which (if still required) an appeal is submitted, it will only delay it by a maximum of 30 days. This is because if the LA cannot arrange it within the 30 days, the mediation adviser must give you a “deemed mediation” certificate within 3 working days of the LA telling them this. This certificate (which is not the same as the certificate that you are given if you don’t want mediation) allows you to submit an appeal, but you retain the right to mediation and can insist that this happens even if you have registered an appeal. Mediation has the potential to resolve all or some of the issues that are in dispute much more quickly. This means that it is possible to achieve some improvements to an EHC plan well in advance of the outcome of the appeal.

In situations like this, where the LA issues an amended plan reflecting the agreement reached at mediation, but you have submitted an appeal to the SEND Tribunal because there are still aspects of the plan that you are unhappy with, the SEND Tribunal will generally be happy to treat the new plan as a working document in the existing appeal.

It is also possible to achieve some improvement to your child’s or your situation, if not the EHC plan, during mediation. For example, an LA may agree to provide some temporary funding to the school, or to send in an educational psychologist, or other professional, to carry out an observation or provide advice to the school.

Annual reviews

If mediation is arranged around the time of the annual review, your mediation session should still go ahead.

This is because mediation is an opportunity for parties to try and find agreement, with the help of an independent mediator. This person will be experienced in helping people reach agreement and will have knowledge of SEND law. You may find it helpful to have a ‘middle person’ as it were to talk to you and the LA on what the issues are before the session, and help you and the LA talk these through in the session. You may find it especially helpful if you have not previously found communicating with your LA easy or productive.  

If an annual review is due at the same time you are mediating or appealing a decision, the annual review must also still happen.

It’s the latest version of the EHC plan which has effect. This means that the child/young person is entitled to the special educational provision in an amended final EHC plan issued after mediation, even if a SEND Tribunal appeal is still required to correct or update other parts of the plan.

Get support

If you are still unsure whether to try mediation or appeal to the SEND Tribunal or which sections of the EHC plan you should challenge, you can use our Tribunal Helpline or Call-in Helpline. We have lots of information on where else to get help with making an appeal on our website.

For more information on this topic, see our main advice page on mediation.