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Review of arrangements for disagreement resolution (SEND) – Part 2: Impact of compulsory mediation information on appeals to the First-tier Tribunal SEND

Mairi_Cullen

In a two-part blog post, Mairi Ann Cullen, Senior Research Fellow, University of Warwick, reports on the Department of Education-funded review of new arrangements for disagreement resolution in special educational needs disputes. Part 1 explored the element of the study that aimed to understand the effect of the recent pilot extending the powers of the First-tier Tribunal SEND. Here, in part 2, and following on from Ben Walsh’s blog post about the participation of children and young people in special needs mediation (Feb 22, 2017), Cullen reports on the impact on take-up of mediation and on rates of appeal of the introduction of compulsory mediation information prior to lodging an appeal to Tribunal.

 

The Children and Families Act 2014 introduced a requirement that, from 1 September 2014, all those wishing to appeal to the First-tier Tribunal (SEND) must first contact their local authorities’ independent provider of SEND mediation to find out what mediation could offer. The one exception was where the appeal was only about the name or type of placement or that no placement was named in the education, health and care plan (EHCP). The Department for Education (DfE)-funded Review of arrangements for disagreement resolution (SEND) included an objective to examine the impact of this on increasing the use of mediation and reducing appeals.

Increased demand for SEN mediation

The research found that, of just over 3000 parents/young people from 109 LAs, the majority (58%) chose not to go to mediation. A substantial minority (42%) decided to go to mediation. This minority represented a marked increase in demand for SEN mediation, compared to before September 2014, according to the 19 mediators interviewed from 11 different mediation provider organisations.

Mediation reduced likelihood of appeal to the Tribunal

Of the group who chose not to use mediation, 36% went on to appeal compared to 22% of those who had been to mediation. This 14 percentage point reduction in the likelihood of registering an appeal, where mediation had been taken up, was statistically significant. Over time, as the new legislation embeds, the impact of mediation on lowering rates of appeal may increase. (There was a marked increase in impact from Year 1 to Year 2 of the new system.)

Mediation created cost savings in the disagreement resolution system

The decreased likelihood of lodging an appeal following mediation also determined a further finding, based on economic analysis by colleagues from London Economics[1]. This was that using mediation was associated with cost savings in the disagreement resolution system. The analysis took into account aggregate disagreement resolution costs incurred by LAs and parents, and the public cost of the First-tier Tribunal SEND. Given the different rates of take-up of mediation found across LAs, further research would be needed to explore the extent to which these cost savings are evident at individual LA level.

The Government’s policy response to the findings on SEN mediation

In its policy response to the Review, the Government committed to supporting the development of a voluntary system of standards and accreditation for SEN mediators. As part of its review of family support services, it also committed to exploring how best to ensure families were signposted to mediation services and supported through the process.

Interested in further Review findings about SEN mediation?

The full Review report and the Government’s response to it can be found at this web address:

https://www.gov.uk/government/publications/send-disagreement-resolution-arrangements-in-england-review

If you would like to know more about the findings summarised above, read Chapter 4 (Part 1) and Chapter 8 of the Review report.

If you would like to know what a sample of SEN mediators thought about the introduction of mediation information and the resulting increase in demand for SEN mediation, read Chapter 4 (Part 2), which also includes the views of a sample of parents and young people who had used SEN mediation.

 

About the author:

Mairi Ann Cullen led the research team that conducted the Review of arrangements for disagreement resolution (SEND). She is a Senior Research Fellow in the Centre for Educational Development, Appraisal and Research (CEDAR), University of Warwick.

[1] Gavan Conlon, Cecilia Caliandro, Viktoriya Peycheva, Daniel Herr

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