Save the planet and mediate!

Save the planet, mediate: could this be a new argument for mandatory mediation?

At a recent meeting about the SEND tribunal, which hears challenges to local authority decisions about special educational needs, I learned that the average evidence bundle is 350 pages, and some bundles run into the thousands of pages. Aside from sympathy for the parties who have to prepare these bundles, and for the tribunal members who have to read them, this fact should generate concern for the environmental impact of so much paper.

In contrast, mediations of these tribunal appeals usually involve a 1-2 page Agree to Mediate statement from each party and, where applicable, the child’s statement of special educational needs (SEN) (soon to be the EHC Plan). Parties might bring along their files and other papers, but they are rarely used during the mediation.

Arguing that its environmentally friendly approach is a good reason to make mediation compulsory is frankly absurd. But is it any more absurd than arguing that mediation should be compulsory because it is cheaper and faster than the tribunal?

From September 2014, we will see the introduction of the first mandatory mediation in the UK. That it has so far remained under the radar is due in part to the specialist area of SEN being an unfamiliar area of mediation practice. It falls between the cracks of non-family civil mediation, despite being the longest running area of mediation in the public law and administrative justice arena. Because the claims are not money-based, it isn’t reflected in the Ministry of Justice’s Civil Mediation Database. Because it isn’t commercial mediation, but nor is it family or community mediation, SEN mediators cannot join the Civil Mediation Council as individual mediator members.

In the UK we have resisted attempts to make mediation mandatory. We’ve had experiments with compulsion in the past, such as with the Automatic Referral to Mediation pilot in the London Central County Court in 2004-05 that was evaluated by Professor Hazel Genn. One of Genn’s findings was that efforts to introduce compulsion led to lower settlement rates, from 69% to 38% during the course of the pilot, and subsequently led to higher costs for parties. The pilot was not rolled out.

Other ways of compelling parties are more surreptitious. They include introducing or raising fees to lodge legal claims (as with employment tribunals), requiring parties to attend a mediation ‘information and assessment meeting’ (as in family cases), and withdrawing legal aid that allows parties to get advice (as in all but very few excluded types of cases). We’ve seen that the government’s attempts to promote the use of mediation in family disputes has spectacularly backfired, with the number of mediations plummeting since the withdrawal of legal aid means that people can no longer access the lawyers who can give them confidence in trying mediation.

With the new requirement in SEN cases, we see a different way of dipping our toes into the mandatory waters. Water is an apt metaphor, given the arguments made by some mediators and members of the judiciary that although you can’t make a horse drink by leading it to water, most horses do actually drink, once they find the water as pleasurable as it is marketed to be. In other words, once people get to the mediation table (even if that’s by force) they will find the process helpful.

The new measures to come in this September are part of the reform of special educational needs provision in the Children and Families Act 2014. If parents want to lodge a challenge to a local authority decision on SEN, they will be required to consider mediation – like the MIAM requirement in family mediation, this means obtaining information about mediation and a certificate from a mediation adviser. Without that certificate, a parent can’t lodge the appeal. If parents decide they want to mediate, the local authority is required to mediate. The twist is that compulsion is for the local authority only.

This is the first instance of mandatory mediation (not just mandatory mediation information) in this country, and it’s being introduced with very little outcry.

Don’t get me wrong – I’m a big fan of mediation for SEN and disability disputes. Mediation works well in these cases, as years of experience and hundreds of cases has shown. My colleagues and I at the London SEN Mediation Service, run by the national charity Kids, have since 2003 seen the way mediation can help parents, schools and local authorities reach holistic and long-lasting agreements that put the child or young person at the heart of the resolution. But we were also among the majority of mediator respondents to the Department for Education’s consultation last year who argued vehemently against mandatory mediation for these cases.

Mediation is a wonderful resource and should be available to all, but it isn’t the answer in all cases. It takes time and effort, and to get a sound result you need the right people, senior people, to attend. For a number of reasons parties might legitimately decide not to mediate, and it serves no one to have parties attend reluctantly or to send a representative to mediation who doesn’t have the authority to settle. Furthermore, the risks introduced by the new requirement and the associated timescales will make mediation less, not more, attractive.

We might find that money is spent on mandatory mediation information provision (paid for by already over-stretched local authorities) and the issuing of certificates, and that numbers of actual mediations go down while tribunal numbers remain the same. The winners in this game are likely to be only the certificate-issuing mediation advisers. The losers are the parents and local authorities who will be forced to jump new hoops, and the children and young people whose provision might be further delayed.