Children and Families Bill

Memorandum submitted by Anna Tylor and Dr Mark Owen

(CF 94)


We support the introduction of mediation as a mechanism for dispute resolution but suggest that the bill, nor the associated proposed delivery arrangement, reflect the power of this medium as an aid to maintaining good communication, avoiding dispute, developing SEN leadership in schools and changing the culture that currently exists within SEN provision, from one of an adversarial relationship between families and schools to one of collaboration. While we would assert that this is a principle that applies across the scope of the whole bill, our comments are confined to SEN in schools, where children are either without a statement, journeying towards a statement or already have a statement.

1. Background

1.1. Mediation, as a means of resolving disputes, is now coming into it’s maturity, and the secretary of state for education sees the potential for the increased role of mediation in the settlement of SEN disputes. This represents a moment of opportunity as well as threat to the delivery of SEN provision. It is vital that mediation is appropriately delivered if it is to add value to the piece. (Lamb B and Tylor A. 2012)

1.2. The Bill, as it is currently drafted accepts the position of the mediator as having no requirement for specialist understanding of educational practice or of SEN, only for the relevant legislation. This is at odds with other sensitive areas of dispute resolution.

1.3. The Bill, as it is currently drafted, places no emphasis on the use of mediation as a means of achieving outcomes for children who are not statemented, but who are experiencing learning difficulties and where the school and families are in dispute, or where there is a risk of relationship breakdown. It may well have a contribution to make in this regard.

1.4. The Bill, as it is currently drafted, recognises the role of mediation in disputes between families, schools and LEAs but it currently places no emphasis on the value of mediation as part of multi-agency working. The Bill currently offers no effective dispute resolution provision for service providers in what is likely to be a complex collaborative framework with many relationships with competing demands. It may also have a role to play here.

1.5. The bill has no provision to ensure that families and children know how to access mediation and are guided through the process. While the indicative code does deal with this, it is scant.

2. The Mediator

2.1. There is some concern that mediators without any training around SEN may come to this process at a disadvantage and this could, in turn, impact upon the outcome of a mediation and the particular experience of families and young people using mediation. (Kill or Cure? Tylor A. Davies J. Connected Spring 2012)

2.2. In our experience of working around disability and other sensitive areas such as cross cultural issues, and of having mediated complex disputes with many stakeholders where disability, or similarly sensitive, is a core issue, we consider that the mediator who mediates without understanding of some basic issues, will have their chances of brokering an agreement, considerably reduced because they may misinterpret behaviours, lack understanding of disability discourse and be at risk of perceiving certain behaviours (particularly for those families with communication and developmental issues) as bad behaviour rather than impaired behaviour.

2.3. In order to better appreciate this point, a comparison could be drawn with mediating across cultures. As with disability, certain culturally informed behaviours are open to misinterpretation and misunderstanding. Without an understanding of at least a minimum of the influencing issues it is all too easy for mediation to fail. It is an established principle when mediating between groups who emerge from different cultural and religious traditions that a mediator seeks at least a basic level of understanding of cultural nuances in order not to offend participants and aid communication.

2.4. Many mediators working around SEN already make it their business to seek training around key issues in order to avoid this happening, and this should be an established principle within the regualtions. If it is not explicitly expressed there is a risk that it will be ignored by price conscious commissioning bodies.

2.5. There is no need for mediators to become experts on a particular disability or learning difficulty, as each individual experiences their disability differently, but a minimum level of knowledge and understanding should form part of a mediators professional resource, when working around such sensitive issues.

3. Children without statements

3.1. By far the largest group of children whose needs fall beyond current teaching provision, such as those facing speech, language, communication, literacy and dyslexia issues, will have to secure a solution within the school or between the school and the LEA. Most will not have statements and will be dependant upon their family’s powers of persuasion to secure the appropriate additional teaching input. This leaves tens of thousands of children exposed to inadequate or no additional resource and without a means of settling differences of opinion between school and family.

3.2. Mediation at school level could represent a significant move forward in helping schools and families to maintain open communication and working relationships, which often break down in the event of a SEN disagreement, thus compounding the problem.

3.3. It would also be a means of extending and embedding the co-operative principles of successful programmes such as Achievement for All.

3.4. Mediation at school level would also help governors to fulfil their SEN obligations through demonstrating a pro-active rather than a re-active approach, which is currently the prevailing culture.

3.5. Evidence suggests that mediation can be deployed at a range of stages to sustain, support, improve, resolve, damage limit and end relationships in a successful way. This is especially so around such emotive issues as a child struggling to learn and a school with limited resources. Effective mediation as part of a SENCO’s resource could reduce the burden upon them and be a significant help to them.

3.6. Mediation as part of a Head Teacher’s resource, could also help them to grow in confidence in giving leadership and delivering services in this area, by providing a safe route to understanding a family’s or individual pupil’s challenge. Currently, many report their lack of understanding around SEN. (A head teacher recently reported to one of the authors that SEN was a monumental expensive pain and not what he signed up for). Mediation would be one of the means at a Head’s disposal, of claiming leadership in this area.

3.7. Because of the gulf that can sometimes exist between school and families that we have touched upon here and are already well understood, it should be incumbent upon governors to establish a "light touch" mediation provision to resolve these issues.

3.8. Further, LEA’s who often deal with families by taking months to respond, or not responding at all, could also benefit from such a provision for children who are not statemented but in need of resource beyond available teaching within the school.

3.9. Too many children remain outside any effective means of resolving disputes. This in turn may compromise their educational outcomes.

4. Multi-Agency Working

4.1. The Bill makes heavy demands upon agencies involved in children’s lives across health, education and social care and so forth, to collaborate in the delivery of services, but it does not make provision for the breakdown of those critical relationships. In turn, there is no mechanism for restoration.

4.2. In our experience of working with many stakeholders, it is inevitable that competing views will emerge and these will not always be possible to resolve through normal working, particularly given the unseen influences that may be being exerted upon individual organisations.

4.3. Experience of working around disability suggests that variations in understanding between professional disciplines (professional cultures) can be quite destructive, particularly when competing views argue passionately. This can threaten trust and hobble a working relationship. Mediation can offer a remedy to this at the point it begins to emerge and thus go a considerable way to preserving the collaborative approach. It affords professionals a safe place to explore difference.

4.4. In turn, this can save a huge amount of resource for a small investment as a problem begins to emerge, and can help maintain focus on the interests of the client or individual at the centre of discussions.

4.5. The complexities of multi agency working are well understood and if this is to be the gold standard, it cannot rest upon the integrity of those charged with delivering it, but must have a dead man’s handle where discord emerges. Mediation offers this.

4.6. We do not believe that it need be a heavy formal process but one that agencies become used to using in helping them to broker solutions and that can enable them to deliver a more efficient service because a mediator can help manage the process around resolution.

5. Supporting Families who mediate.

5.1 As has been pointed out by the APPG on disability, the bill lacks any demand to explain to families the points at which mediation can be accessed, how it works, checks and balances and so forth. It is crucial that this is prominent within the codes if mediation is to have credibility.

5.2 The indicative code does not do this and we are concerned that by failing to take on board widely voiced concerns about the way that mediation is administered, the benefits of mediation could be undermined.

6. Conclusion

6.1. Mediation has a valuable role to play in a reformed delivery of services and the move to a less litigious method of dispute resolution for families is to be welcomed. However mediation should not be seen just as a means of setting matters straight when they have all gone horribly wrong, but as a means of keeping a complex system well oiled.

6.2. In an increasingly demanding and complex landscape, mediation has a role to play in prevention as well as cure.

6.3. By it’s nature mediation is designed to be a flexible human process and so embedding it within the new proposed system need not be onerous nor administratively demanding, since the mediation sits outside of the formal process and is there to aid it rather than to replace it or be a parallel solution.

6.4. Finally, it is in keeping with the spirit of an early intervention ethos, where resource used now can prevent a problem escalating into poor outcomes for service users and providers alike; where a problem languishes as too difficult to tackle and the cost of remedy for service user and provider alike grows financially and in terms of wasted human potential.

April 2013

Prepared 24th April 2013