Special Educational Needs Mediation

Special Educational Needs Mediation

For many parents, having a child with SEN is hard enough, without then having to engage in what may seem (to some of them) like a perpetual conflict interface regarding their child’s education. As I mediate SEN cases in over half the UK (and have done so for over 10 years), I have seen dozens of Local Authorities (LA’s), scores of schools, and literally, hundreds of parents in the field of SEN mediation.

Time and time again, familiar patterns emerge. From a professional perspective, I’m interested in conflict avoidance and management (way before it becomes dispute resolution) and so I hope this brief article provides a number beneficial insights for parents (and indeed anyone) who finds themselves involved in an SEN dispute.

Perhaps the most fundamental misunderstanding out there I hear is that LA’s are there to say ‘no’.  No they are not! LA’s will however (quite reasonably) say ‘no’, in the absence of the information they need to say ‘yes’, so in SENmediation, we focus not on the LA decision that triggered the referral to SENmediation, but the information which informed it. So time and time again, we see that the LA panel did not have all of the information it needed at the time, to make the decision that parents (and schools) wanted the LA to make. Remember that unpicking the narrative is essential, as is re-inserting the required information at the critical point (usually resubmission to panel).

We see a range of familiar conflict issues, from schools not having completed the ‘graduated response’ through School Action/Plus, so the LA has a clear evidence base for Statutory Assessment, to parents assuming that LA’s will automatically be copied into specialist medical reports (no they are not!) Some smaller primaries may request SA without reference to the LA or Code of Practice criteria, or even be providing below 5 or in excess of 25 hours support without ever raising SA with LA’s or parents as a way forward. Sometimes parents request a particular provision simply because another child has it, or will not make a request for any additional help as they “don’t want to make a fuss”.

In SEN mediation, we always begin by asking parents, LA’s and schools what they know about the child – frequently they do not all know the same things, and establishing a common framework of understanding is pivotal in helping everyone to reach that ‘fundamentally wise’ child-centric solution. So communication is key. Sadly, we see too many situations where failure to communicate, or even failed communication (for whatever reason) causes or perpetuates the problem. Do not become trapped by semantic polarities! Objective discussion and option investigation, followed by constructive problem solving (whether in SEN mediation or not) will provide the route forward.

Sometimes the timetable doesn’t help – for instance, parents have only 2 months from an official LA refusal to lodge an appeal with the SEND Tribunal; the clock is ticking. Sometimes someone is ill, or on holiday. Sometimes SEN mediation referral takes several weeks… or longer. Also there’s often the inherent misunderstanding that as a Tribunal has been lodged, parents can’t continue to ‘negotiate’ direct with LA’s and must go through the Tribunal (not true!) Whilst the best PPS and IPSEA reps (if involved) will ensure that everyone ‘keeps talking’ irrespective of SEND, sometimes that becomes range-bound by legal processes – which is never constructive.

Maybe the child has Specific Learning Difficulties and needs small class sizes, not available in maintained mainstream? Private schools with smaller classes may provide the answer – particularly if parents are happy to take care of transport (so any actual cost differential is negligible). Maybe the child has complex medical needs that a mainstream school feel cannot be met there? Perhaps the answer might not be to move to another school, but to provide training and facilities which better enables the current school to fully meet need. Maybe the child has ASD as well as behavioural difficulties, and parents recoil in horror at the prospect of a BESD special school? The answer in all such cases is for parents to actually visit the school in question to see it for themselves – and agree child specific protocols; what works for one child may not be right for another. Decisions are always best grounded in fact, but often we find both rumour and misunderstanding creep in there instead – so we help people recalibrate using an empirical evidence base.

Parents often feel at an inherent disadvantage in SEN disputes, simply because LA’s and schools are generally more knowledgeable and experienced in SEN. There’s sometimes a parental perception that as a particular provision is generic, or not 1:1, or not provided by a therapist (SLT & OT particularly) that it cannot be beneficial. Really?

It’s often a ‘learning cliff’ for parents, where they shuttle from Paediatrician to Educational Psychologist (et al) trying to do their best for their child, often (unjustly) feeling that they are somehow failing them, because ‘the system’ doesn’t appear to be working for them as well or as quickly as it should or could. This is where utilizing SEN mediators’ experience will be a tremendous parental resource, in drawing from similar situations (what other parents have found helpful or otherwise, and why), managing expectations (what might be possible and what may not be, and why), to helping problem solve potential outcomes (what other parents is similar situations have found works, and maybe what doesn’t, and why).

SEN mediators empower parents (and other Parties) by applying a range of many available techniques (see my earlier ‘Mediation is a Science’ blog article) to help them get from where they are, to where they need to be – always with a child-centric focus. Sometimes SEN mediation meetings result in totally unforeseen outcomes that surprise everyone – but they are happy to agree that particular outcome, because crucially, it works for the child – even though it was not apparent until generated and problem-solved in SEN mediation.

That being said, there will always be some cases where parents really want (or need) to take their case forward to the SEND Tribunal – and that in any SENmediator’s book is absolutely fine (particularly if they have also tried mediation) as there is nothing we do in SEN mediation which detracts from any parental rights. If anything, parents end up better prepared as a result of SENmediation, if Tribunal is the route they then choose to progress. In such cases, it’s quite usual to have an outcome statement which details the basis of disagreement, to both underline the resolution efforts previously made by Parties, and to aid Tribunal’s focus in resolving them.

There will also always be many cases which parents, school and LA’s will be able to resolve directly between themselves, without a referral to SENmediation – which again, is absolutely fine. Many LA officers were teachers in a previous life, and have a great experience in effective ways of addressing child need. In the vast bulk of SEN ‘disagreements’, mediation will not be needed; indeed, many issues are resolved direct with LA officers, and do not even become SEN ‘disputes’. But it’s good to know that a dedicated and experienced SEN mediation team is on hand, if any help is needed.

If any acronyms (there are quite a lot of them in SEN), or anything else is unclear – or if you would like further details, please do contact the Global team, who will be happy to provide further information.

Charles Horn, MSc MCIArb CEDR Accredited Mediator
Conflict Resolution Consultant
Global Mediation

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