Guest Posts, SEND Law, SEND Review, special needs

#SENDReview: Why mandatory mediation in SEND appeals isn’t wanted–or needed

with Margaret Doyle, author, accredited SEND mediator

One of the proposals in the SEND Review Green Paper is for compulsory mediation before parents can register an appeal at the SEND Tribunal. This isn't the first time that compulsory mediation has been mooted. In fact, the Department for Education first tried it in its draft bill for the previous reforms. It was fiercely opposed and in 2012, the Education Select Commmittee's pre-legislative scrutiny report recommended this be dropped in favour of mediation being considered, and this is what went on to be adopted. Tania wrote about it here at the time.

Therefore, since 2014 parents must either participate in mediation or attain a certificate to say they have considered it before an appeal. And now the DfE are trying again to cut the numbers of parents accessing the Tribunal. As Catriona explained here, getting LAs to not break the law is perhaps a better way.

But many parents do try mediation. In some cases, with a skilled mediator and a willing local authority, it has worked. Other times, we know that the LA refuses to attend, sends someone who isn't in a position to make a decision, or even brings their own lawyer, which is against the spirit of mediation. Parents have also encountered mediators inexperienced in SEND.

"The national standards will set clear expectations of how different parties should engage in mediation, including timescales for mediation to take place and ensuring that local authority decision-makers attend meetings. We will make sure there is appropriate support available to parents to help them understand the mediation process and how best to engage with it."

" If the national standards and mandatory mediation does not prove effective...we will consider whether it is necessary to introduce an additional redress measure in the form of an independent review mechanism. This could be the same multi-agency panel proposed in paragraph 13 that reviews evidence at the EHC needs assessment stage to ensure consistency. In these circumstances, the panel would be responsible for reviewing the evidence in any dispute cases that are eligible for tribunal appeal, including refusal to assess need, refusal to offer an EHCP and the content of a plan. Cases would need to go through mediation first and then be reviewed by the independent local panel prior to a tribunal appeal being registered. We would need to consider whether this panel could make the binding legal judgements required to overturn previous local authority decisions and how this would apply across education, health and care.

SEND Green Paper Chapter 2

The relevant consultation questions are six and seven.

Today, Margaret Doyle, an expert and accredited SEND mediator is offering her view of the proposals. The relevant consultation questions are six and seven.

Why we don’t need mandatory mediation in SEND (or even want it) by Margaret Doyle, Accredited SEND Mediator

I’ve been a mediator in SEND disputes for nearly 20 years. I’m not a mediation evangelist but I think it has a valuable role in helping families, parents, carers and young people work directly with local authorities to resolve disagreements and disputes. But I don’t agree that mediation should be mandatory in this context. Why? I’ve set out a few reasons here.

  1. We already have forms of mandatory mediation, and we don’t yet know the impact of those

What the SEND Green Paper doesn’t acknowledge is that we have had elements of mandatory mediation since the reforms in 2014. One is the requirement for parents and young people to obtain a mediation certificate before lodging an appeal. The other, even more mandatory requirement (also since 2014) is for local authorities (LAs) to attend a mediation if the parent or young person requests one.

The Green Paper also states that the ‘national standards’ will set clear expectations about the timescale for mediation to take place and that LA attendees must be decision-makers. We already have those too, set out in the SEND Regulations 2014. The problem isn’t lack of clear expectations but lack of compliance (I note that many SNJ readers report LAs’ not responding to requests for mediation, or not sending someone with decision-making authority, both of which are contrary to the mediation regulations).

What evidence has the DfE used as the basis for arguing for more compulsion? What research has been done on how these elements of mandatory mediation have been working for the past eight years? I’m concerned that we’re considering changes without an evidence base for what’s already been in place for the past eight years.

I’m also concerned that the Green Paper suggests that if mandatory mediation ‘does not prove effective in strengthening earlier redress’, a possible additional stage, called ‘independent review’, would be introduced as another mandatory step before an appeal can be lodged. 

  1. Compulsion affects local authority behaviour

In my experience, the first element of compulsion is helpful. A requirement to get information about the options is a good thing, and if the MIAS process is working as it should, it helps parents and young people make informed decisions about whether or not to use mediation, without coercion. 

As for the second element of compulsion, on LAs, the jury is still out. Has mandatory mediation led to more accountability and to better outcomes for children and young people? It has certainly led to more mediations, an exponential increase, from 75 in 2014 to 4,100 in 2020 (I’ve written about this exponential increase here). Before the reforms, LAs would sometimes decline to mediate even when the parent or young person wished to. Mediation is the default position now for some LAs in responding to a SEND dispute. 

Mandatory mediation won’t improve initial decision-making. On the contrary, requiring LAs to mediate can be a disincentive to improve initial decision-making and communication with families. This is based on my own experience of mediating both before and after the 2014 reforms. Cases are coming to mediation that should have been dealt with earlier and more locally. In addition, making mediation the default appears to have resulted in less preparation for mediation by some LA representatives (by no means all), which makes mediation less likely to result in good outcomes and more frustrating for all. 

  1. Mandatory mediation devalues mediation by making it all about settlement

Not all mediations go well. More than a quarter go on to appeal, either on all or some of the issues that remain unresolved. But nearly three-quarters of them don’t lead to Tribunal appeals. What is that about? Are the issues resolved? Or do parents simply give up? 

The Green Paper states that mediation "helps to maintain and improve relationships…which is important for long-term collaborative working and supports better outcomes for children and young people". This is a bold claim, and one I wish we could support with evidence. I’m not against settlement or resolution. In many contexts, it’s what parties want. In the SEND context, however, rather than measuring the success of mediation by the number of settlements achieved, we should be aiming for mediation to be measured in terms of sustainability – whether it offers an alternative to the assembly line of complaints and appeals that the administrative justice ‘system’ increasingly resembles.

Margaret Doyle

What is the value of mediation?

What is the added value of mediation, beyond offering what is sometimes glibly called a ‘resolution’? I think mediation has the potential to offer more than the resolution of the appealable issue. How?

  • Shorter timeframe (potentially) Mediation generally and takes place much sooner than a Tribunal decision. Where agreement is reached at mediation to carry out a needs assessment, the assessment process can begin right away. Getting clarity on who is doing what by when is part of what mediators do.
  • Testimony is evidence ‘Evidence’ is everything that helps give a full picture of the child/young person and her or his needs and aspirations. In mediation we look at specialist reports and assessments, but we also value the young person themself explaiing what it’s like to try to go to school with extreme anxiety. We value the parents who describe changes in behaviour, disengagement, frustration in their young person. All of this is evidence too.
  • Getting everyone to the table This includes young people themselves, with support or advocacy. It also includes schools and colleges and others who are involved in providing support. 
  • Information exchange If an assessment is agreed, the parent or young person will learn who their named caseworker is. They can ask questions about the assessment, and they can suggest experts from whom they want the LA to seek advice during the assessment.

Most significantly, a positive experience at mediation can help to build trust between the family and the LA. This is likely to be an ongoing relationship for many years, and it requires trust and good communication. This is what the Green Paper is referring to. But requiring parties to participate in mediation is unlikely to help with building that necessary trust. 

  1. We need fewer disputes, not more mechanisms for resolving them

What’s needed is not more compulsion, but more sustainability. How do we achieve that? There are, I think, three key obstacles to building a more sustainable system, one that is likely to foster the trust that should underpin these relationships.

Obstacles to a sustainable system

  • One obstacle is the panel decision-making process. Too often the panel process is hampered by not having the correct information – information might be out of date or missing and, crucially, there is no personal ‘testimony’ to supplement the written word. 

Of the 8,579 appeals lodged last year, almost more than one-quarter were for refusal to assess. Yet if you look more closely at these, only 792 were actually decided by the Tribunal. The rest were withdrawn or conceded, presumably with the LA agreeing to carry out an assessment. Why didn’t that happen earlier? Refusals to assess shouldn’t need to go to Tribunal. They shouldn’t need to go to mediation. Far better is to improve the initial decision-making and the discussions following the decision.

More collaboration would help, and more proactive gathering of relevant information, Hearing from young people. And learning. I don’t think we need new ‘statutory multi-agency panels’ to decide on assessment requests and on issuing EHC Plans. What we need is more interest in learning from appeals and disputes to improve initial decision-making and communication. Why have more and more mediations and appeals when we don’t use those as a way to stop disputes from arising?

  • Another obstacle is that the law doesn’t allow us to be as ambitious as we could be in our reimagining. 

What if we looked at it through a different lens and considered that aiming for ‘correct’ decisions is not ambitious enough? ‘Getting the basics right’, as the LGSCO urges LAs to do, should be a given, as should legally sound decisions. The law is an essential framework. But I don’t want to live in a world where everything is determined by what’s legal or not. Accountability isn’t just about complying with the law. Decisions can be correct and perfectly legal, and tick all the right administrative boxes, and they still don’t get to the ‘right answer’ for that child or young person or that family.

But the emphasis on what’s right for that child or young person needs to be balanced with LA duties to do what’s right for all children and young people. There are both individual needs and wider public needs that must be met. It’s one of the things I find so fascinating about SEND; its multi-layered, polycentric nature, and what it says about our relationship, as regular people, with the state institutions we rely on. 

Most of our legal processes can’t accommodate that multi-layered nature. Mediation potentially can, but only if it’s valued. It can accommodate many voices and issues and it can complement other accountability mechanisms. Mediation works in tandem with the SEND Tribunal and with the LGSCO, not as an alternative. It can also work as a complement to judicial review and the Court of Protection, often in complex cases in which disability rights are at the core.

  • And a final obstacle is the recasting of mediation as a cheap ‘redress’ mechanism, something that more compulsion makes more likely.

When I started in SEND mediation nearly 20 years ago, the norm was a 3-4-hour in-person meeting: long, yes, but also an indication of the commitment required and the time needed to allow for constructive and collaborative working. Today, the norm is a 1½-hour meeting (since Covid, usually online) and often there is pressure from LAs to squeeze mediation into the margins of a busy day. 

Would mandatory mediation improve outcomes?

Mediation requires commitment and engagement. It takes guts, and I always acknowledge at the start of a mediation meeting the courage it takes, for all parties, to agree to sit together to work on the issues. There is no point in forcing someone to attend mediation; it isn’t right for everyone or for every situation. And I expect, although we don’t have evidence for this, that making it mandatory will set many more on the road to the SEND Tribunal. Outcomes are unlikely to be positive.

In a book I co-authored with Nick O’Brien (a SEND Tribunal judge), we used SEND as a case study in reimagining the relationship between public bodies and people. Our vision is not for many layers of what is called ‘redress’, as proposed in the Green Paper, but for a holistic network. The Tribunal, mediators, the LGSCO---we all need to know what each other does, and we need to ensure that what we do is a means of improving initial decision-making---not part of a never-ending assembly line of complaints and disputes. 

Instead of consultation questions on ‘strengthening redress’, I’d like to see the Green Paper prompting more reimagining that would strengthen relationships, with questions such as:

  • Can we imagine a more collaborative form of initial decision-making by LAs? 
  • Can we imagine a system where mediation is more than a settlement mechanism, where it is valued as a collaborative process of change? 
  • And can we imagine a system where mediation, the LGSCO and the Tribunal work in collaboration, as complementary accountability processes that offer the best chance of holistic and sustainable oversight of SEND decision-making?

Margaret Doyle is an accredited SEND mediator. She is also 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). Margaret is also a Visiting Research Fellow at the University of Essex School of Law, and in that role carried out research in 2018-19 on young people’s participation in resolving SEND disputes.

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