On 4th June 2019, two important reports were launched. Margaret Doyle’s report A Place at the Table focuses on the participation of young people with SEND in the mediation process and Charlotte May’s Court of Protection: Mediation Research considers how mediation can be used for adults who lack mental capacity to make a specific decision.
Both authors are experienced mediators, one is not a practising lawyer, the other is, in the field of adult social care. The reports examine the nature of participation for the party at the centre of a dispute and how the mediation process accommodates their needs.
This short blog cannot do justice to either report, both of which are well-worth digesting. There are of course different statutory frameworks within which disputes arise. The Children and Families Act 2014 for young people and local authorities and the Mental Capacity Act 2015 for adults who lack mental capacity. The reports contain significant findings and practitioners in these fields would benefit from being familiar with the contents.
The stark statistics reveal:
- an increase from 75 SEND mediations in 2014 to 2,497 in 2017
- the number of SEND mediations outstrips the number of SEND Tribunals (1,599 SEND Tribunals in 2016-17)
- from 25 case studies in the Court of Protection, 76% said the best time to mediate was as soon as possible or before proceedings
- the cost savings of mediation in the Court of Protection were considerable, in some cases in excess of £30,000
SEND Mediator Practice Standards were published in September 2018 and Margaret Doyle highlights the need for data to be collected on participation in mediation by children, looked-after children and young people. The Court of Preotction Mediation Pilot which is due to start in October 2019 will be evaluated by Dr Jaime Lindsey at University of Essex.
While there are two schools of thought amongst mediators – to be or not to be a specialist – it is clear that in the arena of SEND and mental capacity, mediators need a comprehensive understanding of the relevant statutory frameworks as well as experience of balancing the competing dynamics which often characterise these disputes. This ought to go some way to ensuring that the party affected by the dispute participates directly and/or their wishes and feelings are reflected in the mediation process and any resulting agreement which will require Court approval.
Further research and evaluation it is hoped will provide a foundation upon which the mediation experience can be the best it can in these particular disputes.