Mediation

Mediation is a way to try to settle the dispute and involves meeting between the parent and the Local Authority and an independent mediator to try to reach an agreement. In most cases, you must have obtained a mediation certificate in order to appeal a Local Authority decision. 

If you have already had a lot of informal discussions or meetings with your local authority you may feel a mediation meeting will not be so helpful and you may want to ask for your mediation certificate straight away, in order to begin processing your appeal to the SEND tribunal.

You may also consider a mediation meeting to give yourself more time to appeal, if it extends your appeal deadline. You can read below the various types of appeals to consider if mediation is the right step for you:-

Refusal to Assess appeals

It is always a good idea to continue talking to the local authority about your concerns or any questions you have and the local authority may have already offered to meet with you – this is sometimes called a Way Forward meeting.  

 

If you have already met with the local authority and explored their decision in detail, mediation meetings may not be beneficial, and you may decide to save time and lodge an appeal.

 

If you have not had a proper talk with the LA about why they refused assessment, mediation or a way forward meeting may help as this gives you the chance to explain your points, give more context and get a better understanding of the local authority decision which may help you build your case to appeal, if you continue with it.  You can read more about Way Forward Meetings and Mediation on Refusal to Assess and Way Forward Meetings

 

Section B and/or F and I appeals

Mediation may be beneficial if you disagree with how your child’s needs and provision have been described in the EHC plan. It is sometimes worth considering appealing against section B and F of your child’s EHCP, as well as section I.  This is because the school named in section I of a plan should be a logical conclusion to what B and F say. 

 

What happens next depends on the outcome of the mediation session.  If following mediation you have not been able to resolve your disagreement, you will be issued with a mediation certificate which will enable you to appeal to the SEND Tribunal (within two months of the original decision or one month from the mediation certificate whichever is the later).

 

Section I appeals

If you are solely appealing section I of an EHC plan, you do not have to obtain a mediation certificate to lodge the appeal.  This does not mean you are not entitled to mediate if you would like to.  However, it is important to remember that since a mediation certificate will not be issued, you must lodge your appeal within two months of the notice of appeal from the LA or the final EHCP plan.  You may wish to consider not to delay and go straight to lodging an appeal. 

 

From start to finish, the process of making an appeal is currently taking up to 12 months, depending on the type of case and hearing date set.  If the appeal is concerning a “phase transfer” e.g. between primary and secondary school, the First Tier SEND Tribunal may be able to offer an earlier hearing but you may wish to consider lodging your appeal as soon as possible.  

 

We have noticed that hearing dates are being set later than expected and so it is important that when you are ready to lodge an appeal, you make it clear to the tribunal if this is a phase transfer placement so they can consider an earlier hearing date.  The Tribunal will try to prioritise those appeals where the child or young person is most disadvantaged e.g. out of school/ education, a looked after child.

Global Mediation will ask you:

• Have you contacted the service (Global Mediation) within two months of the date of your local authority decision letter?
• Does your disagreement relate only to placement or the needs and/or provision of your child's EHC plan?
• Do you wish to engage in mediation meetings or do you need a mediation certificate?

If you decide mediation is not for you, they will issue you a certificate confirming you have been told about your right to mediation, but you do not want to do so.  This certificate will enable you to Appeal to SEND Tribunal either within two months of the original decision letter or within one month of receiving the certificate, whichever is the later.  This certificate must be issued within 3 working days of you telling them that you do not want to go to mediation. 

If you do decide to have the mediation meetings, the certificate will be issued after mediation has concluded. The certificate will enable you to lodge your appeal, either within two months of the original decision letter or within one month of receiving the certificate, whichever is the later. 

Ahead of the meeting:-

• prepare a bullet point list of your issues and concerns, so you can easily reference
• think about any questions you have around why the local authority reached its decision, or is refusing your proposed changes
• highlight sections of reports to help you evidence your points
• check they have all the evidence that was provided. Share any new information such as recent letters or reports.
• was there any information you forgot to put in your parent views form that you would like to share? 
• gather any new information about your child that you would like to share with the local authority (you may want to send this in advance to allow the opportunity for all parties to read)
• share your child's views on how they feel about their school setting or how they are currently being supported at school
• if your child has an EHC plan, make sure you have check through the sections of the plan and have highlighted any proposed changes 

If the local authority is unable to arrange a mediation meeting within 30 days it must tell the mediator and Global Mediation must then issue a certificate within 3 days.  You can then decide if you wish to appeal immediately or wait for the mediation to take place.

At the mediation meeting there should be a representative from the local authority with the authority to make decisions.

At the meeting, the mediator will

• Introduce all parties attending
• Read through an agreement and ensure all parties wish to sign and move forward with the meeting
• Confirm the role of the mediator
• Provide an overview of the issues to be discussed as presented
• Ensure all parties understand what is said and have an opportunity to discuss and ask questions
• Confirm agreed actions and issue a Mediation certificate

Some ideas for when you speak to the local authority

• Ask them to explain what they expect the setting to provide. Make notes about this because you might need to go back to the setting to discuss this with them.
• Ask them to be clear about the evidence they would need before carrying out an assessment. For example, this might be more information about your child or young person’s progress and the impact of any previous advice or recommendations.
• Check they have all the evidence that was provided. Share any new information such as recent letters or reports.
• Was there any information you forgot to put in your family views form that you would like to share? 
• Are they recommending the setting seek any specialist advice? Ask about the service being suggested and what is hoped to be achieved by their involvement.
• Have the local authority considered all of your child or young person's needs? For example, you might feel the local authority have identified support or a specialist service to help with some areas of need, but not all.
• The legal test for a local authority to carry out an EHC Needs Assessment is outlined in Section 36 (8) of the Children and Families Act 2014 (C&FA 2014).  It states that the LA must secure an EHC needs assessment for the child or young person if the child or young person has or may have SEN, and, it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.  This means that it is not a requirement that they definitely have SEN only that they may do, and if your child requires support which is different to or additional than other children of the same age then they may meet this criteria. 

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

If following mediation you have not been able to resolve your disagreement, you can appeal to the SEND Tribunal (within two months of the original decision or one month from the mediation certificate whichever is the later).

Remember that if you are solely appealing against school named (Section I) then you will not need to obtain a mediation certificate.   This does not mean you are not entitled to mediate if you would like to.  However, it is important to remember that since a mediation certificate will not be issued, you must lodge your appeal within two months of the notice of appeal from the LA or the final EHCP plan.

No, mediation is completely free. 

Parents and young peoples rights to mediation are set out in Section 52 of the Childrens & Families Act 2014

You don’t have to go to a mediation meeting – this is voluntary and you mustn’t feel pressured into going.  For Refusal to assess and Section B and/or F and I appeals you must contact the service providing SEND mediation and consider it. 

Global Mediation are the mediation provider for Essex.