Mediation and the SEND Tribunal

When Can Mediation be Used?

A right of appeal against a decision involving special educational needs is triggered by any of the following decisions: as:

• Decided to not carry out an Education, Health and Care needs assessment
• Decided to not issue an Education, Health and Care Plan (EHCP) following an Education Health and Care Needs Assessment (EHCNA)
• Issued a final or amended EHCP
• Decided to not amend an EHCP or
• Decided to cease maintaining an EHCP

With each right of appeal, there is a right to mediation if the parent wishes to do so. It can also be used to resolve matters that can’t be appealed to the Tribunal or disagreements around the health and social care elements of an Education, Health and Care Plan.

When there is a right to mediation, the letter the Local Authority sends you, informing you of the decision triggering a right to mediation, must set out your right of appeal to a Tribunal, as well as your right to mediation. It must also contain the contact details of your area’s mediation service and the timescales to contact this service.

You might not want to take on your Local Authority – it may feel really daunting and you may not know where to start – but there is always legal advice you can get before going down the route of mediation.

Our specialist team of SEN Solicitors are here to provide you with expert and accessible advice on how to proceed with mediation and the best ways to approach it.

Mediation Certificate

If you’re appealing to the Tribunal, you must obtain a mediation certificate in most appeals. If you get in contact with us early on in the proceedings, we can help advise you on how to do all of this. We will walk you through how to get a mediation certificate to begin this process.

You don’t have to engage in mediation to obtain the mediation certificate, but you must at least contact the mediation company for them to discuss mediation options with you. We can help advise on this stage of the process too, letting you know how each step of getting the medication certificate works and what happens next.  

You must contact the mediator within 2 months from the date on the decision letter. If you don’t, they won’t be able to issue you with a mediation certificate.

What Happens after Mediation?

After mediation is concluded or if you inform the mediation company you don’t want to engage in it, you’ll be issued a mediation certificate within 3 working days by the mediator.

You can take some time after mediation to think about what is being proposed and get legal advice from one of our specialist Education Solicitors.

If there is agreement on outcomes following mediation, the terms should be drawn up and signed, and all parties involved should comply with them. If agreement couldn’t be reached, your right to appeal isn’t affected, which means you can still proceed to appeal to the Tribunal.

Can I Say No to Mediation?

As it’s a voluntary process, you can say no to mediation.

However, if you wish to lodge a Tribunal appeal, you still must contact the mediation service before registering an appeal, unless your case comes under one of these exceptions:

• Your appeal only relates to Section I of an EHCP, which is about placement
• You’re seeking to bring a discrimination claim.

In any other case, you must still contact the mediation service and inform them that you don’t wish to mediate, within 2 months of the date of the covering letter, which triggers the right of appeal. Within 3 working days of doing so, you’ll be issued a mediation certificate, allowing you to lodge your appeal.

Get in Touch

At Simpson Millar, our team of Education Law Solicitors are experts when it comes to SEND and education mediation.

We can act as a  resource for advice and support, offering essential insights into how everything works and what the mediation will look like. We can be there throughout the process to help make sure that you know what’s happening at all times. No one likes being confused, especially when it’s around something as important as making sure their child is educated.

We therefore provide a judgement-free and open approach, so that you feel listened to and supported throughout your experience with us. We’re here to listen to any worries and issues you have, and we can always offer advice tailored to your situation.

We aim to be mindful and sensitive, as we understand that protecting and caring for your child with Special Educational Needs and Disabilities will be your first priority. We want to help take some of the stress off your shoulders, helping you find the right result for both you and your child or children.

We’ll be in your corner to make sure you get your points across, and maximise your chances of securing a successful outcome in your case.