Understanding Mediation 

Mediation is a free way to resolve disputes before going to the SEND Tribunal. An independent person, called a mediator, helps everyone involved talk about the problems and find solutions. 

You can mediate on education, health, or social care issues. 

If you reach an agreement, it should be written down in a mediation agreement, which acts as a contract and must be followed.  

You have a right to try mediation whenever: 

  1. a decision is made which you could appeal to the SEND Tribunal, including if you only disagree with the name or type of setting, or the fact no setting or type has been named in section I of an EHC plan, or 
  2. an EHC plan is made, amended or replaced. 

When you can mediate 

You have a right to try mediation where a decision is made which you could appeal to the SEND Tribunal or where an EHC plan is made, amended or replaced. 

The decisions made by your local authority (LA) which you can appeal are decisions: 

  • not to carry out an EHC needs assessment 
  • following an EHC needs assessment, not to issue an EHC plan 
  • when first made, amended or replaced, in relation to sections B, F and/or I of an EHC plan 
  • not to carry out a re-assessment of needs under section 44 CFA 2014 following a request to do so 
  • not to secure the amendment or replacement of an EHC plan following a review or re-assessment under section 44 CFA 2014, or 
  • to cease to maintain (or stop) an EHC plan under section 45 CFA 2014. 

What you can mediate about  

If you have a right to mediation, you can mediate about the following matters: 

  • education 
  • health, and/ or 
  • social care. 

There does not need to be an educational element to the mediation in order to discuss health care or social care. You can discuss just education, just health care or just social care, if that is what is relevant to your situation.  

That said, if you want to appeal following mediation there will need to be an educational element to the matter. As well as ordering changes relating to section B (needs), section F (provision) and/or section I (placement), the SEND Tribunal can recommend changes to:  

  • section C (health needs) 
  • section D (social care needs) 
  • section G (health provision), and 
  • sections H1 and H2 (social care provision). 

The SEND Tribunal can make these recommendations in all appeals except refusal to assess appeals. 

What you need to do 

In some situations, you need to consider mediation before you can make an appeal in the SEND Tribunal. 

You do not have to consider mediation if: 

  • Your dispute with the LA only relates to placement – so the name, or type, of setting in section I of the EHC plan, or the fact no name or type is in section I. Remember though, often section B and/or F will need appealing too and you should consider widening the matters you want to discuss in mediation/appeal to include these.  
  • You want to make a claim for disability discrimination. There is no right to mediation here. 

In all other appeals, you need to consider mediation first and obtain a mediation certificate. There is no duty to try it mediation.  

Step 1: Call the Mediation Advisor 

  • Contact the adviser using details on the LA’s decision letter or final EHC plan. 
  • If you want to appeal, contact them within 2 months of the LA’s letter. 
  • Even if your dispute is only about placement, you can still call to get information. 

Step 2: Tell the mediator what you want to do  

  • Decide whether you want to try mediation. 
  • If you do not want to go to mediation, the adviser will send a mediation certificate within 3 working days (needed for appeals). 
  • If you do want mediation, tell the adviser and the LA what issues you want to discuss. Include any health care you feel should be in the plan. 

Preparing for mediation  

The mediator must have sufficient knowledge of the law relating to special educational needs, health and social care to be able to conduct the mediation. Their role is to help the parties discuss matters and see if agreement can be reached. Their role is not to advise you best or ensure your child or young person’s legal rights are protected. 

  • Make notes on key points and evidence supporting your case. 
  •  Share information about your child’s strengths, challenges, and needs. 
  • Update the LA/ICB if anything has changed since their decision. 
  • Prepare a short closing statement.  

IPSEA has a helpful table on this link which will help you to understand what your child or young person is legally entitled to Preparing for mediation 

The mediation process  

Step 1: The mediation issues  

You need to tell the mediation adviser and your local authority (LA) what the issues are that you want to discuss in mediation. 

Step 2: arranging the mediation  

  • Health only: ICB arranges mediation within 30 days. 
  • Health + education/social care: LA and ICB arrange mediation within 30 days. 
  • Education + social care: LA arranges mediation within 30 days. 
  • The LA cannot refuse mediation or make you attend another meeting first. 

Delayed mediation  

If your LA is responsible for arranging for mediation and cannot arrange it within the 30 days then: 

  • your LA needs to tell the mediation advisor about this as soon as it can once it realises this 
  • the mediation adviser must give to you a “deemed mediation” certificate within 3 working days of the LA telling them this, and 
  • you can decide if you still want to try the (delayed) mediation even if you are sent this certificate and/ or have lodged your appeal in the SEND Tribunal. If you do decide to try the delayed mediation, you will receive another certificate after the session and can use this to lodge your appeal if not already done so. 

Step 3: Notice of Mediation  

  • You must be told at least 5 working days in advance when and where mediation will happen. 

Step 4: The Mediation Session 

  • Everything is confidential. 
  • LA/ICB representatives must have decision-making authority. 
  • The mediator must be independent and knowledgeable about SEND law. 
  • If agreement is reached, it is written in a mediation agreement. 
  • If partial or no agreement is reached at mediation, then you retain your right to appeal.  

Step 5: After Mediation 

  • You will receive a mediation certificate within 3 working days (unless it was only about placement). 
  • If full agreement is reached, the LA/ICB must follow the agreed actions within the timescales below: 
Action Timescale 
Start EHC needs assessment 2 weeks 
Decide not to issue EHC plan 10 weeks 
Send finalised EHC plan 14 weeks 
Issue draft EHC plan 5 weeks 
Issue finalised EHC plan 11 weeks 
Change school name in EHC plan 2 weeks 
Amend EHC plan 5 weeks 
Other agreed actions 2 weeks