Mediation

SEND And You’s February topic is Mediation⁠
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If you disagree with a decision about an EHC needs assessment or a part of an EHC plan, you will be offered the chance to go to mediation to try and settle the disagreement before going to First-Tier Tribunal.⁠
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This information series breaks down key information about the mediation process.⁠
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For further help contact our Information, Advice and Support line on 0117 989 7725.

What is mediation?

Mediation is an informal, confidential, “non-legalistic” process involving the parties in dispute and an impartial and independent mediator. A mediator does not judge or impose a solution but helps both parties work towards a mutually satisfactory outcome.

What is the purpose of mediation?

A local authority in England must make arrangements for mediation with a view to avoiding or resolving disagreements.⁠

When do I have the right to mediation?

If parents or young people want it to, mediation can take place following;

😟 a decision by a local authority not to carry out an Education, Health and Care (EHC) needs assessment
📝a decision not to draw up an EHC plan
⌛ after they receive a final EHC plan or amended plan
🙅 after a decision not to amend an EHC plan
⛔ or a decision to cease to maintain an EHC plan.
– SEND Code of Practice 11.13

Parents and young people can also go to mediation about the health and social care elements of an EHC plan.
– SEND Code of Practice 11.31

When does mediation not apply?

The mediation advice arrangements do not apply to disability discrimination claims or if you disagree only with the education setting named in your plan.

What information must the Local Authority provide?

SEND Code of Practice (11.14) states:
“Local authorities must make arrangements for parents and young people to receive information about mediation so that they can take part in mediation if they so choose before a possible appeal to the Tribunal.”

What information must the Local Authority provide?

If the parent or young person wants to go to mediation the Local Authority must take part. If it’s not possible for the LA to arrange mediation within 30 days, where there is a right to appeal, it must tell the mediator who will issue a certificate within 3 days, giving the parent or young person the right to appeal immediately if they don’t wish to wait for mediation. ⁠
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A parent or young person’s right to appeal is not affected by entering into mediation. ⁠
– SEND Code of Practice 11.19⁠

What information must the Local Authority provide?

When a Local Authority sends notice of a decision which can be appealed to the Tribunal it must tell the parent or young person of their right to go to mediation, and explain when they must contact a mediation adviser before registering an appeal. They must also provide contact details.

The contact number for the Global Mediation service for Bristol, South Gloucestershire and North Somerset families is 0208 441 1355.

Do I have to consider mediation?

An appeal to the SEND First Tier Tribunal can be made only if a mediation adviser has issued a certificate to the person making the appeal, unless the appeal is only about section I of the plan, in which case the certificate is not required.⁠

Do I have to consider mediation?

There is only a statutory obligation to consider mediation. You do not have to attend a mediation meeting if you do not want to. However, you do have to contact the mediation provider in order to obtain a mediation certificate before you can lodge an appeal to the SEND Tribunal. Details of the mediation provider will be on the decision letter sent to you by the Local Authority.

Do I have to consider mediation?

Where a parent or young person does not wish to pursue mediation but is required to obtain a certificate, the mediation adviser must issue a mediation certificate within 3 working days of being informed by the parent or young person. ⁠
– SEND Regulations 14-1⁠

If you request a mediation meeting…

The Local Authority, or Bristol, North Somerset, South Gloucestershire health commissioning (NHS), if mediation issues relate solely to health care provision, must arrange for mediation between it and the child’s parent or young person, within 30 days from the date it was informed by the child’s parents or young person (or the Local Authority in the case of health.)

The Mediation Process

SEND Regulations 37 – (1) The body (or bodies) arranging the mediation must ensure that it is attended by the persons who have authority to resolve the mediation issues. ⁠
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Mediators must have sufficient knowledge of the legislation relating to special educational needs, health and social care to be able to conduct the mediation.⁠

Mediation agreement

If mediation takes place and is successful, the results will be entered into a mediation agreement. This will be legally binding on the parties.

If unsuccessful, a mediation certificate will need to be issued under Section 55 (5) of the Children and Families Act 2014 to allow an appeal to the tribunal.

Parents and young people have one month from receiving the certificate to register an appeal with the Tribunal or two months from the original decision by the local authority, whichever is the latter.