The problems with the “secret” consultation on improving standards for SEND Mediation (and how to respond)

With Margaret Doyle, mediation expert and research fellow

If you want to appeal against a decision concerning an Education, Health and Care Plan (EHCP), you need to either participate in mediation, or obtain a mediation certificate saying you don’t want to. The quality of mediation is sometimes lacking, and councils sometimes unlawfully refuse to participate, don’t show up, or send someone who cannot make a binding decision.

As part of the SEND Improvement Plan and Change Programme, the Department for Education wants to make SEND mediation work better. It’s been a a plan that’s already had one u-turn (as you will read below) and now, after launching a short consultation so secret even mediators and lawyers didn’t know about it, the DfE has been forced to extend the deadline for responses to 12 March 2024. If you work in the SEND sector, are a parent who’s experienced mediation, or are otherwise interested, expert mediator, Margaret Doyle, has very kindly written for us what it’s about and her views on the plans.

What’s wrong with the plans for improving SEND mediation — and its consultation by Margaret Doyle

In March 2023, the Department for Education (DfE) published its long-awaited SEND and Alternative Provision Improvement Plan: Right Support, Right Place, Right Time. This followed its March 2022 Green Paper that, among many proposals, was a plan to make mediation mandatory in SEND disputes. In its response, the Government referred to ‘concerns’ about this proposal and fears that it could contribute to delays in securing support:

‘18. For appeals about decisions regarding EHC needs assessments and plans, we proposed in the green paper to make mediation a mandatory part of the Tribunal appeals process. The consultation showed some support for mediation and giving it a greater role to play in redress. We also heard that for mediation to be effective, it needs to be high-quality. However, there were concerns about how making mediation mandatory could lengthen the resolution process for cases that do need to go to Tribunal and how this could delay children and young people with SEND receiving appropriate support.’

SEND and Alternative Provision Improvement Plan: Right Support, Right Place, Right Time

Proposals for mandatory mediation went down like a lead balloon

Nearly 60% of respondents to the Green Paper consultation disagreed or strongly disagreed that the proposals for mandatory mediation would strengthen redress. Thankfully, the DfE decided to put those proposals on hold – although as far as I know they have not been permanently shelved. For a commentary on the proposal for mandatory mediation, see my piece here for the UK Administrative Justice Institute blog and here, on SNJ.

Chapter 5 of the Improvement Plan, which addresses the issues of accountability and routes of redress, suggests that this fear of delay was the primary concern about making mediation mandatory. Reading between the lines, and knowing a bit about the views of SEND mediation held by family support groups in this sector, I believe a greater concern about SEND mediation is that it is thought to be ineffective and cannot hold local authorities to account.

Presumably as a response to this concern, the Improvement Plan states, in chapter 5 para 19:

‘…To ensure that mediators understand the SEND system and are properly equipped to understand all views and appropriately guide families through the process, we will review and build on existing professional standards for SEND mediators. Local authorities will remain responsible for commissioning and funding mediation at no cost to families.’

SEND Improvement Plan, chapter 5 para 19

It promises the following action to improve the quality of mediation:

‘Working with the Civil Mediation Council, the College of Mediators, other sector partners and families to review and build on the professional standards for SEND mediators.’

Note that this action includes a commitment to working with sector partners and families.

Reviewing the Mediation Standards

Following on from this, the DfE convened a Working Group to review the mediation standards. The working group’s membership is not publicly known, although it includes hard-working SEND mediation providers volunteering their time). In late January 2024, a consultation was circulated via the two mediation professional bodies overseeing accreditation in SEND, the Civil Mediation Council (CMC) and the College of Mediators (CoM), inviting responses to the proposed changes.

The background to the standards is that until 2018, there was virtually no regulation of SEND mediators in England; this is common for most mediation in this country. All mediators are bound by the codes of conduct of their professional bodies and the EU Code of Conduct for Mediation. However, until 2018, there were no specific training or practice requirements for SEND mediation aside from what is set out in the SEND Regulations. This states that SEND mediators must be trained in the SEND context and relevant legislation (‘Mediators must have sufficient knowledge of the legislation relating to special educational needs, health and social care to be able to conduct the mediation’).

The standards were developed as a way to provide consistency in training and practice by ensuring that only mediators accredited under the standards, and listed on the national Register, could practice in this area. It was hoped this would increase confidence in mediation as a reliable mechanism for resolving disputes and disagreements between families and local authorities (and to some extent health bodies). The standards and Register were made available on the websites of the two professional mediation bodies involved.

Concerns about the new consultation

Fast forward to the current consultation. I don’t know whether the Working Group had only an advisory role, nor do I know what discussions went on among members of the group and the DfE. However, I have a number of concerns about the consultation, which I know others share. We have raised them with the DfE but have not yet had a response. These include:

  • The consultation appears to have been circulated only to mediator members of the two professional mediation bodies, and not publicly to wider audiences with an interest in SEND mediation (families, schools, local authorities, advocacy and support organisations).
  • The consultation is presented as one coming from the CMC and CoM, the two professional mediation bodies involved in maintaining the SEND Mediation Register. Let’s be clear - this is a government consultation from the DfE, arising from its own response to the Green Paper. It should be expected to comply with the government guidance on public consultations, which sets out key principles for consulting*
  • The initial deadline given was only three weeks. This has since been extended, but only after it was raised by interested organisations.
  • No alternative formats, such as EasyRead, were published, which is a particular concern as the consultation relates to support for disabled children and young people. (Initially, the DfE also failed to produce alternative formats of the Green Paper when it was published.)

* It is interesting to compare this consultation on standards with a current consultation by the General Optical Council (GOC) on revised standards for its members. To be fair, opticians are regulated in a way that mediators are not. However, the aim of both consultations is to ensure standards for registrants are fit for purpose and foster confidence. The GOC consultation follows a year of stakeholder engagement, sets out the changes proposed, is available in alternative formats, provides a 12-week deadline for responses – reflecting the principles of good consultation practice.

Even if one managed to find the consultation and respond by the initial deadline, the consultation has no clear set of questions and no overview of what changes are being proposed to the existing standards. As a result, I imagine it will be nearly impossible for respondents to direct responses at particular proposed changes and for the DfE to set out a response to the comments in any meaningful way.

What are the changes proposed?

As an accredited mediator on the SEND Register, I’m familiar with the original standards, but I found it difficult to identify what exactly was proposed in the way of changes. From what I can see, the proposed changes primarily relate to:

  • The accreditation and registration process will be tightened up by requiring actual mediation practice following successful completion of training, and a written assessment of the trainee’s knowledge of SEND legislation. That’s positive, but training providers should have an obligation to provide the practice opportunities that allow their trainees to become accredited; otherwise we are potentially establishing a gravy train for trainers with no responsibility to see their trainees through the accreditation process.
  • For mediation providers, there is expanded ‘guidance’ (suggesting that it is expected to be followed but not required), including a new emphasis on pre-mediation work with the parties, something that is very welcome but will be difficult to monitor. As delivery of joint mediation meetings has been pared down to a short online meeting, the importance of pre-mediation preparation with the parties has increased. But I understand that many mediations are taking place with no preparation work with local authorities.

There may be other proposed changes, but it’s difficult to identify what they are.

What’s missing from the consultation?

What’s missing? Firstly, one of the enduring criticisms of SEND mediation is that local authority representatives turn up to mediations without decision-making authority. This baffles me, because it’s not only an expectation on the part of mediators and mediation providers to ensure we get decision-makers in the room (or on screen), but it is a requirement for local authorities. So how do we explain this disconnect between statutory requirements and people’s experiences?

If mediators are not insisting on decisions being made at mediation but are allowing decisions to be shunted down the road to a panel, it compromises one of the aims of mediation. Because it is a process in which the parties themselves decide on the outcome, there is always a risk that an agreement won’t be reached – but having people there who have the authority to make decisions is essential. This is particularly important because parents and young people have a deadline of 30 days following the mediation if they still want to appeal to the SEND Tribunal; delaying decisions that should be made in mediation puts this right to appeal at risk. I may have overlooked it, but I can’t see in the revised standards where this requirement is emphasised.

Secondly, I believe another aspect of the standards that should be strengthened is the way mediation providers engage with young people whose support is the subject of the dispute. In my 2019 report on young people’s involvement in resolving SEND disputes, I recommended that:

  • mediation training and guidance should cover young people’s participation,
  • mediation providers should produce accessible information for young people and
  • anonymised case studies of mediations involving young people, and data should be collected on young people’s participation in mediation. 

The existing standards from 2018 do refer to mediators ensuring the ‘child’s or young person’s views are incorporated appropriately’ and exploring ‘the active participation of the child or young person in mediation’, but it is unclear if this is a requirement or guidance – and as far as guidance goes, it’s fairly vague as to how this should be done. As far as I can tell, the proposed standards make no change to that.

What SEND mediation should be

I want SEND mediation to be a robust process of supported, collaborative decision-making that has the confidence of all parties and engages with young people. I want it to remain a voluntary option for families. It should be an option that helps them achieve more holistic, more sustainable resolutions to disagreement. It should foster more trusting relationships between families, young people, schools, and local authorities. I believe it can be that.

But mediation has increased exponentially since the 2014 Children and Families Act—see my analysis of that increase here. In 2022 there were 5,500 SEND mediations, up from 75 in 2014, according to the most recent DfE published statistics). The process has seen its reputation plummet as it increasingly is portrayed by the Government as a cheap and speedy alternative to going to tribunal. Good providers are ground down by a system of competitive tendering that means cash-strapped local authorities often reach for the lowest cost provider.

What worries me is that – despite the best intentions of mediation providers involved in the DfE Working Group - this “under-the-radar” consultation will contribute to the public’s misunderstanding and mistrust of mediation. It will fuel suspicions that mediation lacks transparency and is unable to hold public bodies to account.

It’s difficult to know if the proposed changes will make a difference once implemented; no research has been carried out on what issues need to be addressed to respond to the concerns of families and local authorities. I would rather have seen an open and honest process that was publicised widely, that made it clear what changes are being proposed and why, and that invited respondents to suggest what they would like to see in the standards and what would give them the confidence to try mediation. Despite my reservations about the limitations of the consultation, I urge SNJ readers to engage with it and contribute to shaping standards for mediation in SEND.

Respond to the consultation here by 12th March 2024

About Margaret Doyle

Margaret Doyle is an independent accredited mediator and an associate of the Garden Court Chambers Mediation Team. She is also a Visiting Research Fellow at the University of Essex and Senior Visiting Research Fellow at the University of Reading.

She is the author of A Place at the Table: A report on young people’s participation in resolving disputes about special educational needs and disabilities (UK Administrative Justice Institute 2019) and co-author (with Nick O’Brien) of Reimagining Administrative Justice: Human Rights in Small Places, (Palgrave/Macmillan 2019).

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