Q:
Can the LA refuse to attend a dissagreement resolution meeting and / or mediation prior to Tribunal?
I'm working with a family who were thinking of cancelling their Tribunal (luckily they haven't). They have been offered a Disagreement Resolution meeting by the mediation service. I am unsure if this is the same as formal mediation? Having waited 4 weeks for a meeting date the mediation service has responded as per below. I am at a loss as to what to advise further to the family now. Is there no statutory duty for the LA to attend either disagreement resolution and / or mediation?
After contacting your Local Authority, we have now received a response from them to your voluntary Disagreement Resolution request. On this occasion, your LA has, unfortunately, declined to participate in this meeting.
We are therefore closing this case. This does not preclude the possibility of the LA contacting you directly to attempt to resolve the problem. If we subsequently receive a response from your Local Authority, we will contact you to discuss further.
You may wish to consult your SEND Tribunal about your alternative options for proceeding with your Disagreement Resolution request.
A: SenseCheck
- 0 Yes
- 0 No
- 1 Other
- 10 Jan 2024
-
Other
Simple
Missing information.:
Ms. Walton,
I would like to begin by addressing the matter of language. Terms like "Dispute Resolution," "Conflict Mediation," "Alternative Dispute Resolution (ADR)," and "Conflict Resolution" are often used interchangeably with mediation. However, in these circumstances, I would recommend the term "mediation" be used as it promotes clarity. I am not sure if this is the case, but I am assuming that the question relates to mediation prior to presenting (making) an appeal to the FtT. In any event, I will address this scenario first. If the specific of the question relate to possible mediation options once and appeal has been made, I will address this later. I appreciate that this may seem a little longer than many answers on this website, but this is quite an important area which is a cause of frustration to many parents and young persons. Maybe this is an area in the Noddy Guide that can be developed.
Mediation – Before making an Appeal to the FtT
As stated in the Noddy Guide, there is a statutory right to mediation,
12.14 Does a parent have a right to mediation?
which can be found in s 52 CFA 2014:
https://www.legislation.gov.uk/ukpga/2014/6/section/52/enacted
Additionally, it's important to take note of the obligation outlined in regulation 37(1) of The Special Educational Needs and Disability Regulations 2014, which pertains to arrangements for mediation. This stipulates that those responsible for arranging mediation must ensure that individuals with the authority to resolve mediation issues should attend.
https://www.legislation.gov.uk/uksi/2014/1530/regulation/37/made
Therefore, in light of the information you've provided, it may be necessary for the ‘mediation service’ you mention to exert greater effort and remind the Local Authority (in this case) of their obligation to participate.
It may also be worth assessing how the specific Local Authority in question is likely to approach mediation. Are they inclined to approach it with an open mind and a willingness to engage? If such openness is apparent, that is a positive sign. However, if there are doubts about their readiness to engage constructively, it raises questions about the benefits of pursuing mediation. In the latter case, appealing to the FtT (First-tier Tribunal) and continuing efforts to resolve matters during this process may be a prudent course of action.
Mediation - Once an Appeal has been made to the FtT
If the question pertains to mediation following an appeal, there is less of a formal mediation infrastructure in place.
The First-tier Tribunal (FtT) does facilitate judicial mediation, concerning matters related to placement (Section I). If both parties agree, then an application should be made to the Tribunal and this can be arranged by them.
If the scope extends beyond just placement, parents or young individuals should further narrow down the issues under appeal by collaborating on a working document with the LA; this is expected and indeed required. This process may also involve initiating a 'without prejudice discussion' with the Local Authority (LA). A 'without prejudice' discussion is a confidential conversation between parties engaged in a dispute. During such discussions, any statements made cannot be used against them in subsequent legal proceedings, with the ultimate aim of potentially reaching a settlement or resolution of one or more of the issues.
In conclusion, this is undoubtedly an unfortunate situation, and it's entirely understandable if the family involved has had their confidence shaken. I hope the information provided above offers some guidance on how best to move forward. One thing I can say with unshakable certainty is you have pointed to an area people struggle with, and that deserves a big thank-you.
Sean Kennedy
Talem Law
|
4 Comments