Here we set out what will happen once you have decided you do want to mediate.

Step 1 - the mediation issues

You need to tell the mediation adviser and your local authority (LA) what the issues are that you want to discuss in mediation.

If this includes the fact that no health care provision, or no health care provision of a particular kind, is specified in the EHC plan, you need to also tell the LA what health care provision you would like to be specified in the plan.

If you want to discuss health care provision in (or its absence from) the EHC plan your LA must, within 3 working days of you telling your LA about this, tell each relevant integrated care board (ICB):

  • what the mediation issues are, and
  • where the mediation issues are, or include, the fact that no health care provision is in (or health care provision of a particular kind is missing from) the EHC plan, what health care provision you want to be specified in the plan.

Step 2 - arranging for the mediation

If you only want to discuss health care provision, the ICB/ICBs must arrange for mediation between it (or them) and you within 30 days from the date the LA told them what the mediation issues are.

If you want to discuss heath care provision and education/social care, your LA must arrange for mediation between the LA, each ICB and you within 30 days from the date you told the LA you want to mediate.

If you want to discuss education and social care, the LA must arrange for mediation between you and the LA within 30 days of you telling the LA you want to mediate.

The LA cannot refuse mediation or make you attend another form of meeting beforehand.

Delayed mediation

If your LA is responsible for arranging for mediation and cannot arrange it within the 30 days then:

  • your LA needs to tell the mediation advisor about this as soon as it can once it realises this
  • the mediation adviser must give to you a “deemed mediation” certificate within 3 working days of the LA telling them this, and
  • you can decide if you still want to try the (delayed) mediation even if you are sent this certificate and/ or have lodged your appeal in the SEND Tribunal. If you do decide to try the delayed mediation, you will receive another certificate after the session and can use this to lodge your appeal if not already done so.

If your delayed mediation relates only to placement (section I), remember you will not receive a mediation certificate. This means that you will not receive a “deemed mediation” certificate once the LA realises mediation is going to be late. You will also not receive a certificate once the delayed mediation has taken place. You must make sure you submit your appeal paperwork on time. It might be that mediation has not taken place by the time you need to send in your appeal paperwork but you should not wait for mediation to take place before sending to the SEND Tribunal your appeal form. (Please see step 5 below for more information.)

Step 3 – notice of mediation

Whoever is arranging for the mediation, whether your LA or the ICB, they must tell you at least 5 working days before the mediation when and where it will be held.

You can agree to a shorter notice period, but do not have to.  

Step 4 – the mediation session

Everything that is discussed in the session is confidential. Neither you nor the LA would be able to say what was discussed in a later SEND Tribunal appeal.

The LA/ICB representative who attends must hold decision-making authority, and be able to make decisions for the LA/ICB in the meeting. They can't say they have to get someone else’s approval.  

You are entitled to have someone else there to support you in the meeting. If you would like someone to do so, the LA or ICB cannot refuse to participate if it disagrees with who you choose to help you. This includes if a parent wants to be supported by a lawyer (as confirmed by case law).

Other relevant people such as somebody from school or college may also attend mediation, and it may be helpful to have them attend. You and the LA (and ICB if relevant) would need to agree to them attending. If you don’t all agree about this, the mediator could still let them attend.  

The mediator attending the session is legally required to have enough knowledge of the legislation relating to special educational needs, health and social care to be able to conduct the mediation. They must also be independent, and cannot be employed by any LA, an ICB or NHS England. It is a good idea to ask before the session if the mediator assisting with it is a SEND accredited mediator. We suggest wherever possible you should use an accredited mediator.  

If agreement is reached in the session then this should be written down, to form a mediation agreement. This is binding on the parties, and acts as a contract between you. The LA/ICB must do what they agree to in the agreement. We have heard of cases where agreement was reached but no mediation agreement was produced. If you are not given a mediation agreement at the end of mediation, before you leave the session you should ask the mediator to confirm they will issue one.

Step 5 – after the mediation session

You will receive a mediation certificate with 3 working days following mediation, unless mediation was only about placement (section I).

What happens next depends on the outcome of the mediation session.

If full agreement is reached

If full agreement has been reached between the parties, the mediation agreement will detail this.

Unless different timescales have been agreed in the mediation agreement, the LA/ICB must do what was agreed within legal deadlines. These are set out in Regulations 42 and 44 of The Special Educational Needs and Disability (SEND) Regulations 2014 and will always apply unless you agree different timescales.

Regulations 42 and 44 of The SEND Regulations 2014 say that if the parties agreed that the:

  • LA will carry out an EHC needs assessment: within 2 weeks the LA must tell you that it is starting, then either let you know the LA has decided not to issue an EHC plan within 10 weeks, or send a finalised EHC plan within 14 weeks, of the mediation agreement.  
  • LA will issue an EHC plan: the LA must issue the draft plan within 5 weeks and the finalised EHC plan within 11 weeks of the mediation agreement. 
  • LA will change the name of a school in an EHC plan: the LA must issue the amended EHC plan within 2 weeks of the mediation agreement. 
  • LA will amend an EHC plan: the LA must issue the amended EHC plan within 5 weeks of the mediation agreement. 
  • LA or ICB will do something else (such as agreeing to some temporary funding or professional input), they must do it within 2 weeks of the mediation agreement. 

If the LA or ICB agrees to take certain steps in a mediation agreement but then fails to do so, it is acting unlawfully. You can use our model letter to complain.

If partial or no agreement is reached

If some agreement is reached but there are some matters which have not been resolved through mediation you retain your right of appeal. For example, if the LA agrees to provide some temporary funding to the school but does not agree to issue an EHC plan, you can still appeal that decision. If no agreement has been reached in mediation, you can also still appeal the disputed decision. For example, if the LA continues to refuse to amend sections B and F of an EHC plan, you can appeal.

If some or all of the matter remains in dispute, you can use your mediation certificate (if required) to lodge your appeal in the SEND Tribunal.

In all appeal situations, you must make sure your appeal is submitted within two months of the original decision letter or one month of the mediation certificate, whichever is the later. If your appeal relates only to section I (placement) you do not need a certificate and you won’t receive one so your appeal will need to be submitted within two months of the original decision letter.

If you want to appeal following mediation there will need to be an educational element to the matter. As well as ordering changes relating to section B (needs), section F (provision) and/or section I (placement), the SEND Tribunal can recommend changes to:

  • section C (health needs)
  • section D (social care needs)
  • section G (health provision), and
  • sections H1 and H2 (social care provision).

The SEND Tribunal can make these recommendations in all appeals except refusal to assess appeals.

If the LA sends you an amended EHC plan reflecting partial agreement reached at mediation after you have submitted your appeal, the SEND Tribunal is generally happy for this EHC plan to be treated as a working document in the appeal.

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