sen mediation advice please

[MumuDeLulu]

awaiting tribunal re note in lieu. dd in y5 mainstream, asd & other bits
council have bought in to a service with professional mediators from a reputable SN charity
anyone here done this?
did it help at all?
sounds good to me but is it just a trick?

tia

[MareeyaDolores]

Sounds interesting, though any negotiation is only as good as both parties' capacity for mutual give-and-take.

Not done it ourselves, but bumping anyway...

[inappropriatelyemployed]

Interesting. Can you say who the charity are? I'd be interested to hear who is involving themselves in mediation.

I think the thing is not to let mediation delay any appeal/hearing and only to do it where you think the LA genuinely want to resolve things.

So for sorting out the nitty gritty of statement wording, it may be useful but they are either willing to issue a statutory assessment or they are not. I can't see how you can mediate over that.

Also, mediators are not lawyers and it is too easy for them to fall for policy arguments unless they know the law e.g. 'He's not severe enough for a statement' or 'we don't do statutory assessments for children unless they are X years behind'. So you need to find out the experience and credentials of the individual mediator.

That is just my view.

[StarlightMcKenzie]

I don't know Mareeya. In some cases you'd be right, but so many cases on here I have seen that there really is no room for 'give' on the part of the parents as that would result in the child's needs not being met.

It isn't a haggle process. Both sides don't need to 'win' something. All that has to happen is that the child receives appropriate services to meet need.

[MumuDeLulu]

thank u everyone. the charity is called kids & does lots of different things.

[StarlightMcKenzie]

Yes. They are reputable.

However, I do wonder what they would do as an impartial observer of blatent law-breaking by the LA (which is a very frequent reason why parents go to tribunal)?

Or would they not be trained to that level and so be unaware of LA law-breaking?

[MareeyaDolores]

Star, agree. When saying 'capacity' for give-and-take, I really meant 'do parents have realistic scope to reduce what's being asked for' and 'does the LA really want to agree to anything'

[AttilaTheMeerkat]

Do not accept any Note in Lieu; you want a statement as this is legally binding.

I would share the same concerns as Starlight has mentioned.

[StarlightMcKenzie]

When I was 'negotiating', the LA said 'No way can your child have a laptop'.


I conceded that, particularly as at no time had I ever requested one.

[MareeyaDolores]

Mediation styles might have your answer, star.

Looks like facilitative mediators would just watch the unfair fight. Evaluative mediators would referee it, and flag up rule breaking. Transformative mediators might try a marriage-guidance type technique to solve the speific issue and preserve the working relationship.

[MumuDeLulu]

aha. website says they just facilitate. best get my sencop ready to bang down on top of the la table staff's head illegal policy file

[MumuDeLulu]

no-one at all has tried it then?perhaps not a good sign
oh poo, as i briefly had hope re avoiding tribunal
might try it and see, anyway, just in case.
maybe LA person has a distant wedding to attend on our hearing date, or other personal reason to be flexible

[StarlightMcKenzie]

To be honest, I don't see the point of it.

Every step of the way I had been trying my bollocks off to engage and work through the various disagreements, researching and presenting arguments to repeatedly receive 'no, because I said so' replies if I got a reply at all.

If a LA is willing to work through differences of opinion and demonstrate clearly why they are not going to follow recommendations or evidence for need then there really is no need for mediation.

And if they're not, mediation can't make any difference.

The only possible thing mediation can do, is pose one more (and potentially the fatal) hoop for a parent to jump through. I doubt I would agree to it.

[MareeyaDolores]

[MareeyaDolores]

Demonstrate to school that LA is far more unreasonable than parents?

[MareeyaDolores]

National evaluation Nothing about outcomes though. And nothing to contradict star's viewpoint.

[inappropriatelyemployed]

I agree with everything that has been said. If LAs were willing to engage, they would engage and wouldn't need to go to mediation. But they generally are not because it costs them to engage and offer apropriate provision and it is more beneficial to drag things out as it saves money.

There is no point in sitting in a room with a mediator who doesn't know and can't enforce a basic legal framework in the mediation. Kids may be reputable but these charities do themselves no good when involving themselves in these mediation charades for the sake of contract funding. If they know anything about the reality of the system, they would say they would only get involved if the legal framework is followed and this would require them to be highly trained.

The fact is that mediation is so often used to bully parents into caving by making them feel unreasonable and demanding. In my case, they asked for our SLT to come along (who was a highly experienced Tribunal SLT) and when she rang to talk about it with the SLT team they said they just wanted her there to tell her how their package would work. They had no intention of negotiating.

Ask yourself - are they likely to suddenly concede to what you are asking for? If it is possible, why do they need to sit in a room to do it?

If you want to go, take your own representative/advocate but in my view it is a waste of your money and time.

[PeopleMediation]

Hi

This is a really interesting issue and I'd like to offer my perspective as a mediator. This is my first posting onto Mumsnet, so please bear with me and excuse any newbie errors - which I'll be happy to correct!

First of all, contributors have made really good points. I'm not surprised that MumuDeLulu started this thread asking for other parents' experiences. Mediation (the process, the potential benefits and how it fits in with other avenues such as an appeal) could be better explained and advertised. There is information on the Gov.UK site, and on websites for specific voluntary sector organisations, but its not always easy to find. LAs should also clearly explain to parents that mediation is an option that can be pursued alongside an appeal.

I've trained as family and relationship mediator and am also a qualified lawyer with experience of advising and representing parents in SEN cases. I've also worked for national charities as a senior legal adviser, which included advising families on education issues. I'm mentioning this so people can get an idea of my background and perspectives on disputes.

Its worthwhile remembering the key principles of mediation: its voluntary, its independent, its confidential and the decision making power rests with the parties - not the mediator. The first and last principles are the clearest difference with an appeal or other litigation.

Mediation may not work in your situation, as it might not be suitable for mediation. If you do mediate, you might not get the result you want. That can also be true of litigation. However, its worth considering mediation as it can provide a quicker and less stressful alternative to tribunal. It can also be a lot cheaper than instructing solicitors/counsel.

A mediator is impartial, but not powerless. In particular, a good mediator can level the playing field and correct any actual or perceived power imbalances between an LEA/school etc and parents. InappropriatelyEmployed makes a valid point in saying that parents can be pressured into an agreement. However, a good mediator should be able to detect this (we are trained to do so after all!) and address it - robustly if necessary.

A mediator does have to have a detailed knowledge of the law (or be a lawyer) to mediate in a given area, as mediators don't give advice, but rather information. Mediators who are lawyers and have experience of the issues, as I do for education cases, can potentially offer an enhanced service as we will have a good understanding of the issues and law. Although we have to be careful not to give advice, we can help the parties to "reality-test" any points or proposals. Also, there are differences between the different styles of mediation, and its worth finding out in advance what style the particular mediator uses.

InappropriatlyEmployed and Starlight both ask a good question: if an LA is willing to talk/make concessions, why does it need to be in a room to do so? Equally, if parents are willing to make some concessions (which could be harder) then why be in a room to do so? The answer could be that the process of a structured face-to-face discussion with a neutral third party could be what's needed for the parties to reach agreement. I know that parents may well have had meetings with the LEA/school, and might be thinking, so what's different about mediation? The answer is that it's a neutral process, overseen by an impartial person who can take action to keep the discussion on track and moving forward.

At the end of the day, mediation may not be the answer for your situation. You can still try it without undermining your other options, such as an appeal. You can run mediation alongside an appeal (and its always prudent to know your limitation dates and deadlines) and you could lodge an appeal to protect your own position whilst still moving forward to mediation. Any LEA lawyer should understand that.

I hope that this post is useful and its certainly offered in that spirit. I'm happy to post any further information if that would be helpful. Finally, a general point, my posting is just information and not legal advice, so please don't take it as advice!

Thanks
Simon

[StarlightMcKenzie]

Mediation assumes that there are two sides to a story and a potential compromise.

Where are the child's rights in this?

Having seen a recent Dept of Ed response here: educationandrights.blogspot.co.uk/p/children-and-families-bill-department.html I suspect that the government has sympathy with Local Authorities breaking the law and thinks that it is reasonable to do so in a variety of circumstances.

How else would they claim that parents appeal to 'up the ante'. Any 'ante' can only get a parent from where they are to their child's legal entitlement. A tribunal can award nothing extra, nothing more, only a level playing ground. By the time the parents have to involved SENDIST the opportunities for mediation are long gone.

[PeopleMediation]

StarlightMcKenzie: that's a really good point. Its important not to forget that the person at the centre of these issues is the child. The same point applies to SEN appeals. In both instances its the parents who bring the issue forward, whether that's to a tribunal or to mediation. This is because of the way the domestic law is framed.

The UN Convention on the Rights of the Child (Article 12) requires the state to provide a child with the opportunity to be heard in any judicial or administrative proceedings affecting him/her. There is a comparable provision in Article 7 of the UN Convention of the Rights of People with Disabilities. These are points which I've used in meetings and cases with LAs and they can be helpful.

Its very likely that there will be different perspectives on any given situation. As a mediator, I don't assume that there is a potential compromise. I will work on the basis that there is the potential for the parties to work out their own resolution. Whilst I agree that mediation may be more difficult once a parent(s) have appealed to SEND Tribunal, I feel that the mediation can still be helpful as it can narrow the issues and enable everyone to address points which a Tribunal can't deal with.

[StarlightMcKenzie]

But the child's rights are not the same thing as the child's voice.

Parents are advocates of their child's rights. Their voice is only a part of that.

[StarlightMcKenzie]

I'm not talking about the child's right to be heard. I'm talking about their rights to be educated in accordance with the law and the LA's statutory duties.

[StarlightMcKenzie]

'I will work on the basis that there is the potential for the parties to work out their own resolution'

But what if that resolution is not in the child's best interest regardless of what is agreed? What it if denies them their rights? What if it is illegal?

Does the mediator take their pay cheque (provided by whom?) tick their 'successful' box and bumble along to the next mediation with a satisfied sigh?

[PeopleMediation]

StarlightMcKenzie: I take your point, although the child has the right to express his or her view and to expect the state to take account of it. That is one of a child's rights.

You've asked an important question, and I'd be interested to hear your answer: where do you think the child's rights are?

[StarlightMcKenzie]

The child has a right to an adequate education, as defined by the evidence and not by their preference for art over maths.

[PeopleMediation]

Indeed. All children have a right to an effective education. That is one of their human rights. The courts have said that local authorities must not neglect the educational needs of children with even the most complex special educational needs.