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Civil and commercial mediation, is it time for a radical overhaul?
November 29, 2019
Kate Aubrey-Johnson explores what we can learn from the use of mediation in Special Educational Needs and Disability (SEND) Disputes
As all practising lawyers are aware, mediation provides a mechanism for resolving legal disputes. However, all too often, mediation is only considered once parties have embarked on litigation. In my experience, the earlier a dispute can be resolved, the greater the potential for resolution. One area where this is proving to be effective is in Special Educational Needs and Disability (SEND) mediation.
The Children and Families Act 2014 (‘the 2014 Act’) introduced a new special educational needs and disability (SEND) legislative framework. Among many changes, one significant difference is that it requires a parent or young person to consider mediation before lodging an appeal to the Upper Tribunal.
Mediation in SEND disputes isn’t new, it builds upon the introduction of mediation as a mechanism for resolving SEN disputes in the 2001 Code of Conduct.
The key, practical difference is that a case can only be lodged after a mediation information and advice meeting has taken place, in practice this is often a chat on the phone, and a certificate issued. Local authorities are required to fund the full cost of mediation and as a result often establish a positive relationship with a mediation provider and this enables mediation to be offered to families before litigation is contemplated.
SEND disputes that are mediated are broadly concerned with the refusal of a local authority to assess a child or disputes over the contents of the Education, Health and Care Plan. The importance of a prompt resolution means children remain in education – where, for example, a placement is disputed. Unnecessary delay doesn’t arise where a child needs to be assessed and the imminence of a key transition such as moving from primary to Secondary isn’t missed, as it would be if the case waited to be heard by the Upper Tribunal.
The statistics speak for themselves, since the 2014 Act came into force, the number of mediations has steadily risen. From 75 mediations in 2014; 1,400 mediations in 2015; 1,886 mediations in 2016; 2497 mediations in 2017 and 3200 mediations in 2018.
Perhaps more significantly, in 2017 there were more SEND mediations conducted than SEND Tribunal decisions (2,497 mediations in 2017 compared with 2,298 SEND Tribunal decisions in 2017-18).
For mediation to be properly considered as an alternative to going to court, schemes such as the small claims mediation service could be extended to fast track and multi track claims. The closure of the Ministry of Justice Civil Mediation Online Directory is an example of how civil mediation isn’t being given the profile and explosure it deserves.
The SEND system isn’t perfect, research has revealed that children and young people don’t have sufficiently active voice, but it is driving a sea change in the use of mediation. A lesson that might be helpfully learned by the civil and commercial lawyers and litigants who could benefit from mediation at an early stage.
