Mediation before issuing an appeal to the First Tier Tribunal
In the case of most potential tribunal cases a family will have to obtain a mediation certificate before they appeal to the First Tier Tribunal. This involves, discussing with the mediation adviser the prospects of undertaking a formal mediation process with the Local Authority. A parent has a right to refuse mediation so long as they have discussed the prospects of mediation with the mediation adviser.
There are many positives associated with mediation the idea, that a matter can be resolved by way of agreement with the Local Authority with a neutral arbiter, assisting the parties to reach an agreement. There are many cases that reach me when all communication between the family and the Local Authority have broken down and it would indeed be of great assistance to all if all parties can merely sit down and discuss the case.
However, it is the writers view that although mediation is a very useful tool in seeking to resolve disputes between parties there are inherent difficulties involved in mediating in cases involving children with Special Educational Needs.
Firstly, there is no provision to redress the balance within the parties to assist in any mediation process the Local Authority can obtain any legal support or advice from any expert it sees fit this option is simply not available to parents and as such they are by far the weaker party. The resources available to a parent are far more limited than those available to a Local Authority who will by the very nature of their responsibilities have access to legal representatives, specialist teachers, therapists and be able to resource any provision to advance their case.
As the mediation process is collaborative by nature it will not determine the legal rights that a Local Authority owes to the child. It follows that there is a danger that parents through no fault of their own will reach an agreement which is legally inappropriate. There seems to be no ‘check and balances’ to ensure that agreements reached through the mediation process are legally appropriate to include any agreed new wording to be place in the Education Health and Care Plan. This can cause significant difficulties when a parent believes that an agreement reached will give right to direct therapy and in fact the words specified within the plan do not provide for it.
Finally, what is critical in all Special Educational Needs cases is that there is a clear understanding of what needs the child has and what provision a child requires. There is no provision with the context of mediation to seek out this evidence before reaching an agreement and there is therefore a danger that a decision can be made by every party based on an incomplete picture of what the child’s needs are. For this reason, it is far better in the writers view for mediation to take place when all the evidence in relation to any tribunal matter has been disclosed.