Frequently Asked Questions - Mediation
Bedford Borough Parent Carers Forum have collated the most frequently asked questions about mediation .
Two of the most common questions are, is mediation worth it and are the Local Authority just offering mediation so they do not have to provide a service.
Fuller answers can be seen below but the simple answer is yes, mediation is worth it. The current waiting times for tribunals is 12 months plus, if you can get agreement at mediation sooner your child can start receiving support rather than wait for the outcome of the tribunal.
The Local Authority are legally required to offer mediation and therefore they are not doing it to delay services. Acceptance of mediation is parental choice.
A step before mediation may be a Way Forward meeting. Should an Education, Health and Care needs assessment not be agreed by the Local Authority, a Way Forward meeting will be offered to families/the young person to allow for a discussion around the next steps of support for a child/young person. This meeting will be chaired and arranged by the SENCO Advice Line Professional and will be attended by the school/setting the young person attend, relevant practitioners who are directly involved or practitioners who may be able to offer further guidance or support on how to best meet a child/young person’s needs at SEND Support
What is Mediation?
Mediation is a type of disagreement resolution. The service is free and confidential.
Mediation is a voluntary process for parents and young people, which can be used if agreement cannot be reached about matters related to EHC plans. It is provided by a trained and accredited mediator who is independent of the local authority and Integrated Care Board (ICB). Mediation is a more informal way of trying to settle the dispute between a parent or young person and the local authority and/or ICB compared to an appeal. An independent mediator will join you and the LA and/or ICB, and their role is to help the parties reach agreement on the points of dispute.
You have a right to try mediation whenever the LA makes a decision which you could appeal to the SEND Tribunal.
Mediation Services can be accessed where a decision has been made by a Local Authority:
- not to carry out an Education, Health and Care (EHC) Needs Assessment
- not to draw up an EHC Plan
- not to amend an EHC Plan
- to cease to maintain an EHC Plan
Why Choose Mediation?
Mediation is an informal way of trying to resolve disagreement with the local authority and/or the health commissioner.
There are various reasons why it could work for you, for example where…
- you would like an opportunity to properly discuss your issues and find out more about how the local authority (or health commissioner) reached their decision
- you have some additional information or a new report you would like to share with the local authority.
- you believe the local authority missed some information provided during assessment or annual review
- you believe further assessment is required to determine needs
However, this is a voluntary process and you should not feel pressured into mediation.
Who is the Mediation Provider?
Bedford Borough Council currently commission KIDS Mediation Service to deliver an independent mediation and disagreement resolution service.
Mediation Advice for Tribunals
If you wish to register an appeal with the First Tier Tribunal (SEN and disability) you first have to consider mediation. This is called mediation advice. Before registering an appeal to the Special Educational Needs and Disability Tribunal about the SEN element of the EHCP, you must contact a Mediation Adviser within two months of the your EHCP decision letter to obtain a Mediation Certificate
Once you have had the mediation advice you can decide whether you want to go to mediation.
You do not need to seek mediation advice first if the appeal is only about the name of the school, or college, named on the plan, the type of provision specified in the plan or the fact that no school or other institution is named
Entering into mediation does not affect your right to appeal to the Tribunal.
Do I need to let the Local Authority know I'm going to mediation?
If you wish to go to mediation you must contact the Local Authority know by contacting the SEND Team on 01234 228 375 to let us know the following:-
• The fact that you wish to go to mediation
• The issues you wish to mediate
• Where the mediation issues are or include the fact that no health care provision, or no health care provision of a particular kind is specified in the EHCP, the health care provision that you wish to be specified in the EHCP.
What happens when you contact the Mediation Service?
The Mediation Advisor will provide information over the telephone about mediation and answer any questions about the mediation process. Once you have received this information you can decide whether you want to go to mediation about the SEN element of the EHCP.
Deciding whether to go to mediation or make an appeal to the tribunal
Once you have received mediation advice, it is your decision whether you want to try mediation before making any appeal to the First Tier Tribunal.
The Special Educational Needs (SEN) code of practice makes it clear that people and young people will not be disadvantaged at the tribunal if they have chosen not to proceed with mediation
You decide you do not want to mediate - what happens next?
If you are not interested you can simply explain that you do not want to mediate. The mediation advisor will then give you a mediation certificate.
The mediation adviser will provide you with a certificate, in accordance with section 55(4) (you do not wish to pursue mediation) or (5) (you have participated in mediation) of the Children and Families Act 2014, confirming that you have received mediation information. The mediation adviser must send you the certificate within three working days of you telling them that you do not want to go to mediation.
The certificate will enable you to lodge your appeal, either within two months of the date of the EHCP letter or within one month of the date of a mediation certificate whichever is the later.
You decide you do want to mediate - what happens next?
If you choose mediation the local authority (or ICB) must take part. The meeting will be arranged within 30 days of your request.
An independent mediator runs the meeting. The LA representative who attends the mediation meeting must hold decision-making authority, and be able to make decisions for the LA in the meeting. They can't say they have to get someone else’s approval.
The LA cannot refuse mediation or make you attend another form of meeting beforehand.
After the mediation, the mediation advisor will give you a mediation certificate within three working days. You would need this certificate to register an appeal to the First Tier Tribunal.
Mediators must be trained and accredited and are independent of the local authority or ICB
What is the Mediation Meeting?
KIDS will make arrangements for you to meet with the local authority (and/or health commissioner) at a time and place convenient to all parties.
The mediator (who will have some knowledge of SEND legislation) should:
- agree who needs to be there*
- clarify your issues and the nature of the disagreement
- try to obtain the views of your child
*Local authority and health commissioner representatives should be at a level where they are able to make decisions during the mediation meeting. (11.38, SEND Code of Practice 2015)
Ahead of the mediation meeting it would be helpful to:
- 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
- gather any new information about your child that you would like to share with the local authority or health commissioner representative. (you may want to send this in advance to allow the opportunity for all parties to read)
Who else will be at the Mediation Meeting?
You are entitled to have someone else there to support you in the meeting. If you would like someone to do so, the LA or ICB cannot refuse to participate if it disagrees with who you chose to help you. This includes if a parent wants to be supported by a lawyer (see here for case law on this).
Other relevant people such as somebody from the child or young person’s school or college may also attend mediation. You and the LA (and ICB if you are mediating about health) would need to agree to them attending. If you don’t agree about this, the mediator could still let them attend
You have a mediation certificate - what next?
A mediation certificate must be sent to you within 3 working days in the following situations:
- after telling the mediation adviser you have thought about mediation but do not want to try it (unless your disagreement only relates to placement),
- after attending mediation, whether it resolved the issues in whole, part, or not at all, or
- where you want to mediate but the LA is unable to arrange mediation within 30 days. When this happens the LA must tell the mediation service as soon as it can. The mediation adviser will then give you a mediation certificate within 3 working days of hearing from the LA. (This does not mean the (delayed) mediation cannot still go ahead. It should go ahead if you still want to try it, even if you have your certificate and / or have submitted your appeal.)
Once you have your mediation certificate, if the dispute (or part of it) remains unresolved you can appeal to the SEND Tribunal. You need to make sure you get your appeal to the SEND Tribunal within two months of the date of the LA’s decision letter or one month from the date of the mediation certificate, whichever is later.
What is a Mediation Agreement?
If parties reach an agreement a Mediation
- it has to be recorded in writing and is binding
- where the issues resolved are those in which a child 's parents or young person had a right to appeal to the SEND Tribunal, yje Local Authority has to comply to the time limits
- where there is agreement the LA/ICB do something but there is no right to appeal to the SEND Tribunal the LA/ICB must do the thing within 2 weeks of the meduiation agreement
- where the LA was not a party to the mediation, the ICB must notify the LA of the mediation agreement within 1 week of the date of the agreement
After the mediation meeting - what next?
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).
Where agreement was reached at mediation the local authority must comply with these legal timescales:
- To carry out an EHC needs assessment: they must notify you within 2 weeks
- To issue an EHC plan: they must issue the draft plan within 5 weeks and the finalised EHC plan within 11 weeks
- To change the name of a school in an EHC plan: they must issue the amended EHC Plan within 2 weeks
- To amend an EHC plan: they must issue the amended EHC Plan within 5 weeks
Help and Further Information
What is a Way Forward Meeting?
Should an Education, Health and Care needs assessment not be agreed by the Local Authority, a Way Forward meeting will be offered to families/the young person to allow for a discussion around the next steps of support for a child/young person. This meeting will be chaired and arranged by the SENCO Advice Line Professional and will be attended by the school/setting the young person attend, relevant practitioners who are directly involved or practitioners who may be able to offer further guidance or support on how to best meet a child/young person’s needs at SEND Support. A letter is sent to families/the young person following the decision with contact details of the SENCO Advice Line Professional. The number is 01234 718131.
A Way Forward meeting is a space for parents/the young person and carers to raise any ongoing or future concerns relating to a young person’s provision, and allow for a clear plan and agreed actions on how best to provide support where an EHCP is not required. A Way Forward meeting does not limit a parents/young person’s ability to request mediation and to submit an appeal to the First Tier Tribunal, these processes are able to run simultaneously.