Mediation
Do I have to think about mediation?
Unless the appeal is solely about which school or college is named in an EHC plan, you will need to show that you have ‘considered’ Mediation. This does not mean you have to go to mediation - you just have to show that you have thought about it by speaking to a Mediation Adviser and obtaining the Mediation Certificate.
You will get a Decision letter from the Local Authority. This must give you the right of appeal to the Tribunal against the decision made.
The letter must include details about:
- the right of the child's parent or young person to request mediation,
- the requirement to obtain a Mediation certificate before any appeal can be made to the Tribunal
- the contact details for the mediation adviser that the child's parent or young person should contact to obtain the certificate
- the timescales for requesting mediation
- the requirement to inform the Local Authority if the parent or young person wishes to pursue mediation, and the mediation issues
- contact details for any person acting on behalf of the Local Authority whom the parent or young person should contact if they wish to pursue mediation
Should I go to a Mediation meeting?
There is no legal obligation on parents to attend a Mediation meeting.
In some cases, a Mediation meeting can be helpful. For example, if your appeal is against the contents, in particular Section B (Special Educational Needs) and Section F (Special Educational Provision) then a Mediation meeting may be helpful as an opportunity to explain your point of view in neutral surroundings with a trained Mediator.
Local Authorities will have contracts with one or more Mediation companies. The Mediation company (there should be a telephone number of the Mediation company on the Decision letter) will set up the Mediation meeting at a time that is convenient to you and the Local Authority representative. They will also arrange the venue for the meeting.
When does Mediation take place?
You have two months from the date on the Decision letter to submit an appeal to SENDIST.
If the appeal requires a Mediation Certificate to be sent to the tribunal before the appeal can be registered, then the date for making the appeal will be one month from the date of the mediation certificate if it is later than the two month deadline.
Points to remember at a Mediation meeting:
Ask the Mediator to clarify with the Local Authority that the representative the Local Authority is sending to the Mediation meeting has the authority to make a decision. This should happen as a matter of course. Unfortunately experience has shown this is not always the case.
If you have a professional who is supporting your appeal (such as a SENCo or Speech and Language therapist) then you can ask them to attend the Mediation meeting with you. This can be very helpful in achieving a good outcome and can be less stressful than going through the appeal process.
At the end of the meeting, the Mediator will produce a Mediation Agreement. All discussions at the Mediation meeting are confidential so, if you have achieved an agreed outcome, for example regarding amendments to your child’s EHC plan, you need to ensure there is absolute clarity about the date the Local Authority will issue an amended Education, Health and Care plan that will include the amendments agreed at the meeting. Do not give up your right of appeal until an amended EHC plan has been received that includes all the agreed amendments.
If you are unable to reach an agreement, the Mediator will issue a Certificate which records that you have participated in Mediation but not reached an agreement. You can then lodge your appeal.
When mediation isn't appropriate
There may be circumstances in which Mediation may not be appropriate. For example, if time is short or if you are already aware that the Local Authority is not going to change their mind. If you decide not to go to Mediation, the Mediator should issue the Certificate within three days.
Where the Mediation meeting concerns the contents of an EHC plan.
The Mediation meeting should result in a Mediation Agreement. Unless all participants at the Mediation meeting agree otherwise, the Mediation Agreement is confidential and cannot be used as evidence for a subsequent appeal if a satisfactory outcome is not achieved. Basically, if an Agreement does not result in a satisfactory final EHC plan being received, then you will need to lodge your appeal as though there has been no Mediation. The Local Authority can issue a draft or final EHC plan following the Mediation meeting. It cannot be an Amended EHC plan or a Revised EHC plan.
Legal references:
Child and Families Act (2014)
SEND Regulations 2014, Regulations 32 - 42