Mediation is suitable for many disputes about special educational needs but needs better promotion and facilitation
Appeals about provision and support for children with special educational needs are often capable of being resolved through mediation rather than within the adversarial environment of a tribunal.
Our research revealed that parents do not make as much use of mediation than they could to resolve their disputes about special educational needs. We concluded that mediation needs to be better promoted and facilitated in order to increase its take-up and that it would work best if made a stage in the appeal process, which remains popular with parents.
Our research findings have changed the way in which appeals about special educational needs (SEN) provision are run.
Our evidence on parent and advisor views on using mediation has been incorporated into advice issued by the tribunal to parents and influenced Government policy and legislation on dispute resolution in this field.
Key changes to SEN disputes:
- A standard letter written by Judge Aitken, Deputy President of the tribunal judiciary with responsibility for SEN cases, is now sent to all 3,000 or so (per year) parents who appeal, advising them on the availability of mediation and recommending consideration of its use.
- Increased use of mediation following the introduction of Judge Aitken’s letter, from 2-3% up to 5%.
- Recommendation by the Administrative Justice and Tribunal Council to adopt mediation selectively in the administrative justice system.
- The Government introduced a policy stating that all parents wanting to take an appeal to a tribunal against a decision concerning their child's special educational needs (SEN) or provision must first receive advice and information about using mediation and then either try mediation or formally decide not to use it. This policy was implemented via legislation - the Children and Families Act 2014 in September 2014.
- A SEN Code of Practice, Special educational needs and disability code of practice: 0 to 25 years, which was published by the Department of Education in 2014, and subsequently revised in 2015, includes guidance on how cases should proceed, highlighting the mediation pathway.
The fieldwork for this research included surveys of 150 local authorities and parent support services, as well as in-depth interviews with key professionals, including judges, local authorities and parents.
Prior to this research, mediation was not used widely, despite its availability for a number of years and its active promotion by ministers. The researchers found that local authorities failed to advocate its use – regardless of a legal obligation to make it known to parents – and a lack of knowledge or trust in the process amongst parents and their advisors.
The research identified circumstances where mediation would or would not be useful and the wide-ranging pros and cons of its use.
- Better promotion of mediation services to raise awareness and understanding of this alternative approach and increase uptake
- Availability of mediation as a formal step in the appeal process, provided it does not unduly lengthen the process as a whole