What you should know before starting SEN mediation

Parents are increasingly concerned about the new system of mediation that has been introduced by the Children and Families Act 2014.

The Children and Families Act 2014 requires that before a parent, or young person, appeals to the Special Educational Needs and Disability Tribunal they must at least consider mediation and speak with their local mediation service. This will result in the issue of a mediation certificate which must be sent to the Tribunal with the appeal form. The mediation requirements do not apply if parents or young people wish to challenge the school only within the Education, Health and Care Plan (EHCP).

Mediation is an informal process and should not involve lawyers for parents and the local authority making legal arguments in the way that they would at Tribunal. It is a process whereby parents and local authorities can discuss their disagreements, in a manner which is guided and aided by a mediator. The purpose of mediation is to try to find common ground so that a resolution to the disagreement can be reached which both parties can be happy with.

Whilst mediation is not meant to be as legal a process as an appeal before the Tribunal, the local authority will always have an eye on its legal obligations within the Children and Families Act 2014. As local authorities are very unlikely to agree to anything which goes beyond their legal obligations, parents will need to know what those obligations are.

Before mediation therefore, parents should become familiar with what their disagreement is about, the law that underpins that issue and try to secure as much evidence as they can which supports their point of view. If parents are able to demonstrate that the provision they seek is the only way that the local authority can properly comply with their legal obligation then mediation is likely to be ‘successful’.

It is worth seeking legal advice about the legal obligations which need to be discussed at mediation and to consider what evidence exists and what else could be sought to support parents’ views.