A place at the table: young people’s participation in SEN mediation
Posted: 2 December 2016 Filed under: Dispute resolution, Mediation, Special educational needs | Tags: children and young people, Equality Act 2010, inclusion, mediation styles, SEN Leave a comment
One of the issues that worries me, and many of my mediator colleagues working in the special educational needs and disability (SEND) field, is how to encourage more young people to participate in decision-making in mediation. Both mediation and tribunals are options for dealing with unresolved disputes with a local authority or school about SEND support or provision. These are disputes about a young person’s entitlement to support, and there is generally widespread recognition that young people, as rights holders, should have their voices heard in the determination of such disputes. Yet the reality is that young people rarely attend mediation or tribunal hearings, and the mechanisms by which they can be involved as decision-makers are very limited. This reality for tribunal hearings is the focus of a recent blog post on www.ukaji by Dr Orla Drummond, whose research also resonates for mediation in SEN disputes.
The new SEN framework[1]
The Children and Families Act 2014 (CAF) brought in an element of compulsion in that individuals wishing to challenge a local authority decision on SEN are required to consider mediation before lodging an appeal with the First-Tier Tribunal (SEN and Disability). The CAF also emphasises the participation of children and young people in decisions about their support and requires local authorities in England to have regard to their views, wishes and feelings; the importance of their participation, as fully as possible, in decisions; and the need to provide information and support to enable that participation.
The framework now applies to young people up to age 25, and the Act gives new rights directly to young people at age 16: when they reach the end of compulsory school age, it is the young person, and not their parent, who has the right to make decisions about their support. The Special Educational Needs and Disability Code of Practice (2014) sets out that the specific decision-making rights about SEN include requesting a needs assessment for an Education, Health and Care (EHC) Plan; challenging the contents of the Plan; requesting a particular school or college; and appealing to the tribunal about decisions concerning their EHC Plan.
It is this final point, and the participation of young people over age 16, that is the focus of this piece.
Mediation
Mediation has been part of the SEN framework in England and Wales since the 2001 Code of Practice articulated the importance of independent disagreement resolution for these disputes and the duty of local authorities to make such independent disagreement resolution available. It has been given new prominence in the CAF and the 2014 Code because it is now a requirement, in all but a few exceptions, for parents or young people to consider mediation before they can lodge an appeal with the tribunal.
As mediators, our approach has been to explore how best to involve the child or young person in the mediation. Where the child is under 16 and the parents feel it is appropriate, we invite them to attend the mediation, and this has worked well where a young person is willing to participate. I have had a number of young people involved in mediations I have conducted, most aged 11-14 but more recently in the 18-20 age range. In the vast majority of mediations, however, parents attend without the child or young person. My experience bears this out: this past year I have conducted more than 40 SEN mediations, and only a handful have been attended by the young person. This is despite the introduction of the new framework and Code, with its emphasis on young people being involved.
In all cases, even if the child or young person is not attending the mediation, we invite them, via their parents or carers, to contribute their views on their educational needs and preferences. Depending on the issue in dispute, this might involve views on support in school or college, type of school, or even whether or not to proceed in education past age 16. We use a form that allows the child or young person to write or draw their responses to specific questions, or to dictate their responses for someone else to record them. We encourage parents to bring photographs or videos that convey useful insights into their child’s needs.
Current research
An evaluation of a pilot of young people’s rights to appeal to the SEN Tribunal in Wales[2] indicated strong support for the principle of extending the rights of children and young people to participate in decision-making, but limited evidence of practice. Participation has most often been promoted as a duty on adults (eg parents or local authority officers) to obtain the views of children and young people. A recent project[3] explored how mediators and local authorities are addressing pupils’ views and/or enabling their participation in SEN mediation. Other relevant research includes current work on modeling legal participation in courts and tribunals (G McKeever, Ulster University) and a review of current SEN disagreement resolution arrangements in England (M Cullen et al, Warwick University).[4] In the US, a guidance document[5] was produced in 2003 by the Consortium of Appropriate Dispute Resolution in Special Education (CADRE), drawing on research on pupil involvement in individual education plans meetings and peer mediation.
Young people as decision-makers
When the young person is over age 16, it is legally their decision to make (unless there is a question of capacity – see below). Again, it is invariably the parents who attend mediation on behalf of the young person, even those over age 16. In such circumstances, we seek authorisation that the young person agrees to the parents taking the case, and decisions on the issues, on their behalf. I am heartened to see more young people age 16+ attending mediations, but it is still the minority. In only one of the cases I mediated was the young person represented by an independent supporter, someone who can advocate on the young person’s behalf.
‘Capacity’ is a complex issue. The right of a young person to make decisions about SEN support is subject to their capacity to do so, as set out in the Mental Capacity Act 2005. This explains that capacity applies to individual decisions and may vary according to the nature of the decision; someone might be deemed to have capacity to make a decision about one issue and not another. In relation to SEND, the underlying premise is that young people, age 16+, even if they are deemed to lack capacity to make a particular decision, should be empowered to make as many decisions about themselves as possible (see 2014 Code of Practice s.8.21). One of the fundamental principles of the Mental Capacity Act is that a person is not to be treated as unable to make a decision merely because she makes an unwise decision. And local authorities should not use parents’ views as a proxy for the views of a young person (see SEN4You factsheet).
Welfare versus citizenship approaches
Aside from the issue of capacity, whether or not it is ‘appropriate’ for a young person to participate in mediation (or tribunal hearing) is not a straightforward assessment. It is not simply a matter of age – when is too young to be involved will depend on the individual and the issues in dispute. Presumptions about capacity can be misleading and disempowering. The nature of an individual’s needs or extent of their disability is often more about how we enable the participation – eg putting in place the structures and support that allows a young person to participate meaningfully.
In encouraging participation of young people of all ages, we as mediators are taking what has been called a child-focused approach. We work to guidance developed in 2004 for the SEN Mediation Regional Network, ‘The Voice of the Child in SEN Mediation: Guidelines for Practice’ (Shropshire Mediation Services, November 2004). This guidance emphasises the need to identify the purpose of the young person’s involvement – is it primarily to feed back information to the parents and local authority (a welfare approach), or is it to encourage the involvement of the young person (a citizenship approach)?
The welfare approach has been the predominant one in SEND mediation (and also arguably in family mediation). It was only in 2002 that children and young people were allowed to attend tribunal hearings, and even then this was at the discretion of the tribunal. The old 2001 Code of Practice expected local authorities to seek to ascertain the views of children and young people who, it states, ‘will be able to contribute valuable information about themselves and the ways in which they might like their needs to be met’ (s.7.85).
But this approach doesn’t sit well with the rhetoric on children’s rights, which reflects the role of young people as citizens and rights holders. One example is the final report of the Voice of the Child Dispute Resolution Advisory Group (March 2015), which argues that a shift is needed to a child-inclusive, rather than child-focused, approach by mediators. This report looked primarily at mediation of family disputes, but the findings and recommendations are applicable to the SEND context as well. The report states that the Advisory Group found ‘very few children and young people were being provided with the opportunity to have their voices heard during the mediation process. The evidence showed that hearing children’s voices was a minority activity.’
The Group also recognises that ‘embracing child inclusive practice raises questions about the mechanisms that are appropriate for including children and young people, ethical considerations about taking a children’s rights perspective, and implications for meeting the cost of providing this opportunity’ – issues it addresses in the report’s recommendations.
The UN Convention on the Rights of the Child sets out the rights of children and young people to be involved in decisions which affect them, to have their views listened to and taken seriously and to participate in proceedings. The Children’s Commissioner for England notes how young people’s participation is not only good for young people by improving their confidence, relationships, aspirations and their role as active citizens. As the Commissioner points out, it can help to build trust with adults and can improve decision-making: ‘Children and young people are key to coming up with new and helpful ways to improve their own and other children’s lives.’
Barriers to participation
Many barriers to children’s and young people’s participation in SEN mediation have been identified in research,[6] including psychological damage to the child, the risk that the child may come across as more capable than parents had presented and the length of tribunal hearings. Barriers are also identified, as are ways to address these barriers, in Drummond’s comparative study of children’s participation in SEN tribunals in Northern Ireland and Wales.[7] Many of these barriers and recommendations are relevant for mediation as well as tribunals. Attitudinal barriers about ability to participate reflect often misguided assumptions about capacity, as noted above. Potential conflicts between the views of the young person and her parents can be difficult to reconcile – but not impossible. Concerns about anxiety of the young person, and the need to shield her from negative or sensitive information about her needs, prioritise safety over participation.
These concerns are not unreasonable, but many can be mitigated with process changes, such as incorporating greater flexibility in the structure of meetings and hearings. My experience of conducting mediations of disability discrimination claims brought by disabled students against universities demonstrates to me that it is possible to include young people as full decision-makers in mediation. Those claims were brought by the young person, who attended the mediation and made the decision on settlement of the claim. There is no reason that most young people with SEN or disabilities cannot be the decision-makers in their own claims.
There is no doubt an issue of training – for the judiciary and for mediators – and a need for skilled independent supporters and advocates to work with children and young people and support their decision-making engagement. This research, and the work of the Voice of the Child Dispute Resolution Advisory Group mentioned above, shows that most of the barriers identified are societal ones that need to be addressed by mediation providers and tribunals.
Conclusion
Enabling young people aged 16-25 to participate in decision-making and resolving disputes about SEN is one of our biggest challenges as mediators. The Children and Families Act and new Code of Practice make it essential that we consider how we can address the barriers. Although this is a challenge also faced by the SEND tribunal, it is perhaps more important that in mediation, which fosters an element of collaborative working, young people’s right to make decisions is delineated from the rights of their parents. But this also carries more of a risk in mediation, where the parties themselves, and not tribunal judges, are the decision-makers.
It is not a simple challenge to meet. There is the issue of decision-making capacity and parents’ concerns about their child’s best interests. There is also the unique dynamic between young people and their parents, and between young people and those perceived to be in power, such as local authority officers. Young people may feel coerced into agreement, or their silence might be taken as tacit acceptance. There is the danger that disagreement will occur between the young person and her parents: ‘Mediators may find themselves in the position of eliciting input from a student when the parents do not want the student’s perspective to be considered,’[8] leading to ‘mediations within mediations’. There are attitudinal and structural problems to overcome, and there is a need for training.
So I don’t suggest this will be easy. But it is necessary, if we’re going to make a place at the table for young people.
[1] This blog post applies to the SEND framework and legislation in England. As SEN policy is devolved, separate frameworks apply in Northern Ireland, Scotland (where the term Additional Support Needs, or ASN, is used) and Wales. The issue of children and young people’s participation in SEND dispute resolution, however, is relevant UK-wide.
[2] D Holtom et al (2014), ‘Evaluation of a pilot of young people’s rights to appeal and claim to the Special Educational Needs Tribunal for Wales’, The People and Work Unit, Government Social Research No 65/2014.
[3] See B Walsh (2016), ‘An exploration of how the views of children and young people are addressed in Special Educational Needs Mediation’, profile on the Research Register of www.ukaji.org.
[4] See profiles on the Research Register of www.ukaji.org.
[5] Mueller, Melissa, Anita Engiles and Marshall Peter (2003), ‘The Involvement of Students in Their Special Education Mediations’, a briefing paper for The Consortium for Appropriate Dispute Resolution in Special Education (CADRE), October, 2003, at www.directionservice.org/cadre/student.cfm.
[6] See, eg, N Harris, S Riddell, E Smith (2008), ‘Special Educational Needs (England) and Additional Support Needs (Scotland) Dispute Resolution Project: Literature Review’, University of Manchester/University of Edinburgh.
[7] O Drummond (2016), ‘Access to Justice Barriers for Tribunal Users’, Ulster University.
[8] Mueller et al. (2003/2007), p.10, http://www.directionservice.org/cadre/student.cfm
Making rights worth having: the report of the Lords Select Committee on the Equality Act 2010 and Disability
Posted: 27 April 2016 Filed under: Disability, discrimination, Dispute resolution, Mediation, ombuds | Tags: dispute resolution, Equality Act 2010, House of Lords, ombudsmen Leave a comment
‘We recommend restoring the Equality and Human Rights Commission’s power to arrange the provision of conciliation services for non-employment discrimination claims. The service specification should provide for a range of delivery methods to ensure it is accessible, including provision of face-to-face conciliation, and the service should take direct referrals from the Equality Advisory and Support Service or its replacement.’
Last month the House of Lords Select Committee on the Equality Act 2010 and Disability reported on its inquiry into the Act and concluded that government inaction is failing disabled people. The inquiry, which started in June 2015, received 144 responses to its Call for Evidence and heard oral evidence from 53 witnesses. The published report sets out the committee’s conclusions on a range of issues including the Public Sector Equality Duty, reasonable adjustments, access to services in transport, housing, and leisure facilities, and enforcement and access to justice. It highlights the barriers to challenging disability discrimination in terms of cuts to legal aid, court and tribunal fees, and procedural changes and notes that rights without enforcement are meaningless: ‘Rights which are unenforceable are not worth having.’
It was particularly heartening to see the Committee’s criticism of the Coalition Government’s weakening of the Equality and Human Rights Commission (EHRC) and its abolition of the EHRC’s power to arrange independent mediation (conciliation) for non-employment cases. I worked as an independent mediator with the original Disability Conciliation Service, set up by the Disability Rights Commission, and its successor, the Equalities Mediation Service. Over the years, from 2001 to 2013, we handled many hundreds of claims alleging disability discrimination in the provision of goods and services.
This provision, the report states, was one of the casualties of the Red Tape Challenge, and it was abolished, with other measures in the Act, because it was considered to place unnecessary or disproportionate burdens on business. The report suggests that the Government should have given the same consideration to measures placing an unnecessary or disproportionate burden on disabled people, and Baroness Deech, chair of the Committee, said: ‘Intended to reduce the regulatory burden on business, the reality has been an increase in the burden on disabled people.’
It’s useful to be reminded of the background of the mediation provision and its demise. From the report:
‘447. The Disability Rights Commission developed a conciliation service to which any complaint arising out of an alleged failure to provide goods or services in a non-discriminatory way under the DDA could be referred for resolution. When the Disability Rights Commission was replaced by the EHRC, section 27 of the Equality Act 2006 gave the EHRC the power to provide conciliation services.
448. In March 2011 the Coalition Government, as part of its examination of public bodies, issued a Consultation Paper putting forward a number of suggestions for changes to the role and functions of the EHRC. One of the questions asked was: “Do you think the Government should repeal the EHRC’s power to make provision for conciliation services, as part of the process of focussing the EHRC on its core functions?” Of the 293 responses received, 61 agreed, 206 disagreed and 26 were not sure. Despite this the Government concluded:
“We have now decided to repeal the EHRC’s power to make arrangements for the provision of conciliation in non-workplace disputes. We do not believe that arranging conciliation services for individual cases fits with the EHRC’s strategic role, or that it is necessary in light of the range of good quality, accessible and effective mediation provision already available throughout England and Wales and Scotland.”660
Accordingly section 27 of the Equality Act 2006 was repealed by section 64(1)(b) of the Enterprise and Regulatory Reform Act 2013 with effect from 25 June 2013.
449.The EHRC wrote: “The removal (which we opposed) of our statutory power to arrange the provision of conciliation services for non-employment cases is a particular concern for disabled people given that the majority of non-employment discrimination claims are disability cases.”661 That concern was shared by the Discrimination Law Association, who told us in written evidence: “DLA members advising and supporting disabled people in non-employment discrimination claims have called for re-instatement of the EHRC power to establish a conciliation service.”662 Most forcefully Nick O’Brien, when asked which two recommendations he would like to see this Committee make, said: “The Disability Rights Commission had a power to arrange for a conciliation service in respect of goods, facilities and services disputes. The need for that, or something similar, has become more acute now that the prospect of taking cases to court—civil cases in the county courts and even in tribunals—is so significantly reduced.”663
The committee also considered whether a new disability ombud scheme should be created. Evidence to the committee noted the plethora of existing ombudsman schemes: As our colleague Nick O’Brien stated, ‘the landscape is already quite cluttered … The challenge is to make sure that the existing ombudsmen more selfconsciously use the powers they already have to embed equality and human rights in what they do.’ The committee was persuaded that yet another ombudsman is not needed and that, instead, the mandates of other ombudsmen should be widened explicitly to cover disability issues.
‘461. We recommend that the Government amend the mandates of those regulators, inspectorates and ombudsmen that deal with services most often accessed by disabled people to make the securing of compliance with the Equality Act 2010 a specific statutory duty.
462. We recommend that any new relevant public sector ombudsman be given an explicit remit to secure compliance with the Equality Act 2010 in the services for which it is responsible.’
Another very useful recommendation relates to data on non-employment discrimination claims. It has been impossible to identify the number of such claims made in county courts because these are not specified. The report recommends:’that HM Courts and Tribunals Service be required to collect from all county courts and from the Employment Appeal Tribunal, and to make publicly available, data relating to disability discrimination claims separately from other claims, as they do in employment tribunals.’
The report overall makes fascinating reading. I look forward to seeing how the Committee’s recommendations are taken forward.
Human rights and discrimination issues in complaints: what is the ombuds’ role?
Posted: 24 September 2015 Filed under: discrimination, human rights, research Leave a commentEarlier this month the Independent Police Complaints Commission (IPCC) published guidance on handling complaints about discrimination. The guidance follows a number of critical reports by the IPCC, which found significant failings in the way police forces carried out such investigations and engaged with complainants. It raises an interesting question: To what extent do ombuds and other complaint handlers hold bodies they investigate to account for discriminatory behavior and decision-making?
Fairness is a key concept of the ombuds approach: both fairness of decision-making and fairness of the processes used to handle citizen-consumer ocmplaints. Yet ombuds schemes and other complaint handling bodies in the UK have generally been reluctant to tread into the territory of naming discrimination and human rights breaches in findings on complaints. Part of the reluctance is the concern that any determination of a breach of equalities and human rights legislation must be made by a court. Breaches of human rights can, however, inform findings of maladministration, but as noted by Buck et al in The Ombudsman Enterprise, this innovative use of the law has its dangers, not least the risk of judicial review.
Promoting and protecting human rights is the primary function of National Human Rights Institutions (NHRIs), some of whom also have complaint handling roles. A current study of the role of NHRIs in dealing with human rights complaints is exploring how that complaint-handling role fits with the wider strategic function, and to what extent informal processes such as mediation are being used for these. (We were interested to note that the researchers are finding, as we did, that certain ADR and informal processes are ‘amorphous and difficult to isolate’ and that shared meanings and forms of, for example, mediation appear not to exist.) In some countries, the NHRI is also an ombud, but in the UK ombuds are separate organisations; the Council of Europe uses the term ‘national human rights structures’ to refer to those commissions, ombuds and police complaints mechanisms that have a human rights mandate but are not the accredited NHRI.
Last year the Equalities and Human Rights Commission published a guide to human rights in action. The section of the report on regulators, Inspectorates and ombuds (RIOs) includes several case studies, from the Parliamentary and Health Service Ombudsman, the Prisons and Probation Ombudsman and the IPCC, illustrating the use of the human rights framework in complaints handling and investigation.
Among those ombuds who have been proactive in identifying these issues in complaints is the Parliamentary and Health Service Ombudsman (PHSO), which has published a number of reports highlighting the human rights and discrimination elements of many complaints, particularly about vulnerable people in care or hospital (for example, this one on disability discrimination). The former Parliamentary and Health Service Ombudsman has stated that ‘the Ombudsman’s approach includes an overall concept of fairness, a fundamental commitment to the humanity of individuals and their right to equality in treatment and outcomes. Issues of discrimination and equalities underlie many of the complaints which come to the Ombudsman…’.
The PHSO makes clear in its general standards for determining complaints that it will expect a public body to comply with the equalities and human right legislation and will hold them to account:
‘It is not the role of the Ombudsmen to adjudicate on matters of human rights law or to determine whether the law has been breached: those are matters for the courts. The Health Service Ombudsman’s Principles of Good Administration do, however, state that the Principle of ‘Getting it right’ includes acting in accordance with the law and with regard for the rights of those concerned, and taking reasonable decisions based on all relevant considerations….
If the public body is unable to demonstrate that it has had regard for, and taken account of, human rights, the Ombudsmen will take that fact into account when considering whether there has been maladministration and/or service failure.’
The Northern Ireland Ombudsman has been in the forefront if this work and has worked closely with the NI EHCR to develop a manual and training for complaint handlers to help them identify human rights issues in complaints they receive.
The UK Financial Ombudsman Service has published briefings on the need for businesses to comply with the Equality Act, such as this one. One of the issues is, as FOS points out, ‘consumers rarely articulate their complaint as “discrimination” – or invoke the Equality Act. More often than not, they’re simply frustrated at being unable to access the services they want or need to – and feel that the business’s processes are unnecessarily inflexible and impersonal.’
‘If ombudsmen want a broader canvas on which to paint their distinctive contribution human rights is probably the best, perhaps the only, place to turn at present.’ Nick O’Brien
An optimistic view is that ombudsmen in the UK will ‘increasingly contribute to wards the resolution of human rights issues in public administration, both in conducting investigatory work and in the office’s relations with other bodies’ (Buck et al, The Ombudsman Enterprise, 2011). Nick O’Brien, a human rights specialist and ombuds-watcher, has noted the increased consumerism plaguing ombuds schemes and argues that ombuds can mark themselves out among complaint-handling bodies by having a focus on discrimination and human rights issues: ‘If ombudsmen want a broader canvas on which to paint their distinctive contribution human rights is probably the best, perhaps the only, place to turn at present.’
How far do complaint handlers go in identifying discrimination or human rights as issues in complaints? How do ombuds and complaint handlers use the legal framework for discrimination and human rights in their casework and findings? Perhaps these questions need further research.
‘Manning’ the ombuds barricades
Posted: 14 June 2015 Filed under: Dispute resolution, Mediation, ombud, ombuds, ombudsmen, ombudsperson | Tags: campus ombuds, dispute resolution, gender neutrality, mediation, Norway, Ombudsman Association, ombudsmen Leave a comment
by Varda Bondy and Margaret Doyle In October 2014, we launched (together with Carolyn Hirst) a mapping study titled ‘The use of informal resolution approaches by ombudsmen in the UK and Ireland ’. We discussed at length whether to use the words ‘ombud/s’ or ‘ombudspersons’ rather than ‘ombudsman/men’, but decided on the latter to avoid the title itself becoming the centre of attention rather than the content of the report. However, we felt compelled to touch on this question at the launch, which was attended by a number of ombudspeople as well as academics. After presenting one aspect of our findings, concerning the multiplicity of terms used by schemes to describe the same processes and identical terms to describe different ones, we added a closing remark on the problematic matter of terminology in the use of the term ‘ombudsman’ itself. This included an assertion that the word ‘man’ in…
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New student rights to redress
Posted: 20 November 2014 Filed under: Dispute resolution, higher education, Mediation, ombudsmen | Tags: appropriate dispute resolution, dispute resolution, higher education, mediation, ombudsmen, student complaints, universities 1 CommentStudents at private universities are to get the right to take complaints to the sector’s independent adjudicator.
Times Higher Education reports that a clause applying to students in England and Wales was added this week to the Consumer Rights Bill currently making its way through Parliament. It will give students at private higher education institutions in receipt of Student Loans Company funding the right to take unresolved complaints to the Office of the Independent Adjudicator for Higher Education (OIA) – a right currently only given to students at publicly funded institutions and at the few private institutions that have voluntarily subscribed to the OIA. All students at private providers with at least one course designated for SLC funding will have access to the OIA. The change is intended to take effect on 1 September 2015.
Interestingly, this might also lead to more students having access to mediation for their complaints, if they choose. The OIA is one of a few independent ombuds schemes that uses mediation as one of its complaint-handling tools. In addition to its process of review by its team of adjudicators, it has an external panel of independent mediators. In appropriate situations and with agreement of both parties, the OIA can refer a complaint to mediation. This can be as an alternative to review or, in some cases, once a complaint has been reviewed and the adjudicator upholds it fully or in part. It can be useful, for example, for reaching agreement on actions to remedy a problem and to prevent future problems, particularly where there is an ongoing relationship between student and university.
Analysis: What’s in a name? The challenges of terminology in studying ombuds practice
Posted: 13 November 2014 Filed under: Dispute resolution, Mediation | Tags: appropriate dispute resolution, dispute resolution, mediation, ombudsmen Leave a comment
Varda Bondy, Margaret Doyle, and Carolyn Hirst
This month saw the publication of a Nuffield Foundation-funded mapping study on the use of informal resolution by ombudsmen (download here), launched at two events in London (at the Nuffield Foundation) and Edinburgh (at Queen Margaret University). Both were attended by practitioners and representatives from administrative justice fora from the UK and the Republic of Ireland, as well as academics with specialist expertise and interest in this field. Such an audience was, unsurprisingly, not shy about giving their reactions and offering their own views – which is how it should be, and it is hoped that the report will encourage further discussion of the issues raised in it.
While ombudsman schemes are in themselves considered to be part of the ADR scene, various alternatives to the investigation process as originally designed have been developed over time. Little was known about the process and…
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Save the planet and mediate!
Posted: 9 July 2014 Filed under: administrative justice, Disability, discrimination, Mediation, system design, Tribunal | Tags: mediation, SEND Tribunal Leave a commentSave 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.
Why LASPO is like Spanx
Posted: 17 January 2014 Filed under: Legal aid, Litigants in person, Mediation | Tags: LASPO Leave a commentMost women in their midlife years have heard of Spanx. For the rest of the population who don’t know, Spanx is the brand name of a range of undergarments that are specially designed to squeeze and shape you.
The problem is one of displacement of mass. Newton’s Third Law of physics, commonly known as ‘Every action has an equal and opposite reaction’, tells us that we can’t use Spanx without repercussions. I’m sure there’s another law named after another eminent scientist that says ‘In a contained body, mass moved from one location will appear in another’ – but I can’t put my finger on it just now.
So you can squeeze and tighten, but unsightly bulges will appear in other places. Viewed face on in a mirror, these bulges might be near invisible, but other angles are less forgiving, and the consequence is the opposite of the gorgeous sleekness that was intended.
I considered this as I read the latest of many reports about the recent steep decline in the number of people using mediation for separation and divorce since the implementation of the cuts that came in with the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The Government’s own figures were that 623,000 of the one million people who benefit from Legal Aid every year will be denied access to this aid.
We now have more evidence for the suspicion that a combination of a) cutting legal aid to pay lawyers for advice on these cases and b) requiring a party who wants to file for divorce to attend a compulsory mediation information session equals fewer people actually using mediation for these cases and more continuing to use the courts. Yet the policies implementing these changes were intended to have the opposite effect – to move cases out of the courts increase the number of cases resolved by mediation.
A Freedom of Information Act request by a firm named Lawyer Supported Mediation uncovered startling stats for the six months from April 2013 (the start of the restrictions on legal aid) to October 2013. In the 12 months before LASPO D-Day in April 2013, lawyers made more than 62,000 referrals to publicly funded family mediation. In the 6 months after D-Day, they found just 20 incidents of lawyers using public funding for family mediation. That’s out of more than 82,000 family claims made in England and Wales in that period. So the picture isn’t one of more happy families and fewer separations, it’s one of more claims lodged in court by people in the midst of one of the most stressful events of life.
Why has it had that effect? Distasteful as the truth may be to some (including some of my fellow mediators), lawyers play a crucial role in making family mediation successful. Not in every case, and (dare I say) not every lawyer, and not by sitting in the mediation meeting with their client. But the gatekeeping role played by legal advisers is crucial for parties who are asked to consider a little-known and unfamiliar process, one with (let’s admit) some reputational issues, to resolve disputes that have significant and lifelong implications for the parties. Family disputes are often laced with fear – fear of the ex-partner, fear of conflict, fear of the effect on children and wider family members, fear of losing one’s home, fear of agreeing to less than you deserve. For women in particular there is often the charged dynamic of wanting to avoid conflict and worrying about pressure to agree to less than you are entitled to.
Legal aid is available for what is called “Help with mediation claims”, but its availability is not well known. It is a one-off fee of £150 for advice on mediation – not a sum most of us would sneeze at, but when you consider that a) this only kicks in after the lawyer has had an in-depth discussion with the client in order to identify if mediation is an option and b) more such discussions will be needed before a settlement is tied up in lovely ribbons, it doesn’t work out to be a sustainable income stream.
Mediation as a lawyer-free zone just won’t work in family cases (and probably in many other contexts too). In order to make informed decisions – whether to attempt mediation, what to propose in mediation, what to agree to in a settlement – many parties need legal advice. Mediation is an untried and untested process for most people –no wonder they feel reluctant to stake their future, and possibly that of their children, on it without some trusted guidance.
We know that the judiciary is concerned at seeing more people using the courts for unnecessary claims, floundering to get to grips with the legal system on their own. Lord Neuberger, who has been outspoken about the damaging effects of the legal aid cuts, said in an interview last spring:
“…if you start cutting legal aid you start cutting people off from justice … affecting their rights. And that’s dangerous. You either have people who are very angry with government and lose trust in the government … or you get them taking the law into their own hands.”
Litigants in person aren’t themselves the problem; the problem is a system that isn’t easily navigable to ordinary citizens. The challenges created by an increase in these litigants are set out clearly in the report of the Judicial Working Group on Litigants in Person (July 2013). The report highlights the problems faced by unrepresented legal parties in understanding and complying with court procedures, understanding rules of evidence, presenting their case articulately, focusing in the issues and judging the merit of their case. Managing cases where one party is represented and the other is not poses particular challenges, not least allegations of bias if the judge leans too far in helping a struggling litigant.
The Working Group also noted that unrepresented parties are not more likely to embrace mediation:
“They can be guarded against the notion of settlement or mediation, believing that any discussion prior to coming to a substantive hearing might be perceived as a sign of weakness, or simply because they wish to ‘have their day in court’.”
At best, people might find a way to reach constructive agreements themselves; or they might drop claims without merit or even manage to pursue a claim successfully in court on their own. At worst (and more so as court fees rise and tribunal fees take effect), simmering and unresolved conflict will burst out in other ways – in mental health problems, in violence, in unemployment. A case in Essex last October that resulted in courtroom rage is but one example.
More claims brought by litigants in person are just some of the unsightly bulges starting to appear as the result of the LASPO Spanx squeeze. Keep an eye out for more.
Gazing at the ADR landscape – Is the EU Directive just a mirage?
Posted: 9 October 2013 Filed under: ADR, Dispute resolution, Mediation, system design | Tags: appropriate dispute resolution, consumer complaints, EU ADR Directive, mediation, ombudsmen Leave a commentAs a North American transplant to this cynical and self-deprecating island, I usually find I’m the lone Pollyanna in the room. Seeing the sunny side is part of my national nature. It doesn’t help that I’ve been a mediator for 25 years and am trained to see opportunity in adversity and promise in conflict.
But I’m more Cassandra than Pollyanna when it comes to the European Union ADR Directive and the excitement those unexciting words seem to inspire among colleagues in the dispute resolution world.
The Directive is aimed at addressing the gaps in consumer redress within and across European Union countries. It requires member states to ensure that there is independent appropriate dispute resolution (ADR) available for consumers to use as an alternative to courts for resolving disputes with traders and businesses. ADR must be free or low cost, accessible, quick and transparent.
So far, what’s not to like?
The main problem is that member states can choose whether or not to make businesses sign up to ADR, and Britain is unlikely to go down that route – this government has an allergy to anything that looks like regulation or bureaucracy or constraints on market freedom. So the upshot is that reputable businesses, ones that want to provide good customer service and can afford to pay for independent redress, will engage with the new requirements. The rogues of the consumer world – and not just the rogues, but the tiny, the tired and the overstretched – are all likely to say ‘no thanks’ to a consumer asking for independent redress. So ADR will be available, but it won’t necessarily be used. It could all turn out to be an exercise in fancy window dressing.
But not being used isn’t the worst thing that could happen – consumers who can’t get their trader to use an ADR scheme can still use the courts – and the small claims procedure in many ways is becoming more accessible and user friendly. I know from previous research I’ve carried out with court users that the fear of court is often unfounded; people are surprised to find they could manage the process without a lawyer. The small claims procedure has most of the attributes set out as desirable in an ideal ADR scheme – independent; a low barrier (court fee) that acts as an effective filter for vexatious complaints; a mediation option available if both parties agree, and a binding legal determination if necessary. Speed for small claims is variable but can be weeks rather than months or years.
What worries me more is what kind of dispute resolution we might end up with. In order to make their product attractive to businesses (which are the target ‘customers’, because they’re the ones paying for it), ADR providers will be pressured to compete on price and provide cheap and cheerful dispute resolution. That might suit some disputes, but not others. The Directive doesn’t distinguish between ADR processes, so mediation is lumped with arbitration, ombudsmen with conciliation, all in a soupy mix. Is anyone considering what types of dispute resolution work best for which consumers, which complaints?
I suspect that the ombudsman model – and in particular its emphasis on seeking evidence and on feeding back to the profession or industry complained about in an attempt to improve the actual services and internal complaint handling – will be pushed out in favour of a complaints’R’us approach – an assembly line of escalated complaints, which can offer a cheaper cost basis for the businesses that are its customers. Businesses could even find it’s cheaper to send their complaints to the ADR scheme rather than handle them properly themselves.
Is that what we’re aiming for? I’m open to being wrong, and indeed hope I am. But for now Cassandra is winning over Pollyanna in the landscape gazing.
Hysterical, but not in a funny way
Posted: 28 September 2013 Filed under: compensation culture, Discrimination claims, Dispute resolution, Mediation, Special educational needs | Tags: Centre for Policy Studies Leave a commentA new and aggressive business has emerged in recent years – the business of stoking compensation culture hysteria. We see evidence of it in the press and, more worryingly, in government policy-making fuelled by a hatred of lawyers. It reminds me of the ‘PC gone mad’ hysteria that was so lively in the 1990s and still rears its unlovely head now and again. Like most hysterias, neither of these – the PC gone mad and the compensation culture – is rooted in an evidence base. Why, then, do they have such hold on the public, and political, imagination?
One example is a report published last year by the Centre for Policy Studies, a thinktank that describes its aim as advocating ‘a distinctive case for smaller, less intrusive government, with greater freedom and responsibility for individuals, families, business and the voluntary sector’. The Social Cost of Litigation by Frank Furedi examines two areas, health care and education, and argues that the fear of litigation is affecting the way professionals practice and, as a consequence, producing damaging outcomes.
In particular, Furedi focuses on what he calls ‘demand for recompense for accidents’ – presumably accidents which, in the good old days, would have been chalked up to experience, with no one to blame. Rising compensation levels, he suggests, lead people to make financial claims against public bodies, and the fear of such claims makes professionals risk averse, which in turn ‘erodes professional autonomy, stifles innovation, leads to defensive practices in both hospitals and schools and encourages greater bureaucracy’.
Anecdote as evidence
The paper has so many holes ripe for picking that it’s difficult to choose which to write about. To call this report an ‘investigation’ into litigation in education and health care is farcical. First and foremost, it refers to new research – but what this ‘research’ amounts to is a series of anecdotes with unidentified individuals who seem to have have been selected on the basis of sharing the hysteria brief of the author.
This evidence includes, for example, an account by an unnamed headteacher of the damaging effect of a parent asking questions: every time the school gets a request for a copy of policies and risk assessments, it’s a week’s work to fulfil the request. The question crying out to be asked is – how can it take that much time, unless you don’t already have policies in place and have to write them from scratch?
It is a truism that one person’s bureaucracy is another’s transparency, or accountability – but possibly a truism unfamiliar to this headteacher.
I can do anecdote, too. I mediated a disability discrimination claim brought against a private nursery by parents of a toddler with autism. The boy had been excluded from his nursery for biting another child. The nursery had struggled to balance his needs with its duty of care to staff and other children. In six months there had only been this one recorded incident. The nursery staff claimed he had been biting them many times in that period. There were no records of this, nor any records of what steps had been taken to address his behaviour. A child who could not speak and who in frustration used biting as a means of communication was labeled bad and excluded. Only by starting a legal challenge could the parents get the head of the nursery to agree to meet in a mediation and discuss what impact this had on them as a family. What came out of it was a clear way forward in terms of improving the procedures for logging incidents and enhanced training for staff – and yes, financial redress, but in this case it was in the form of fundraising for an autism charity.
Professional judgement
I agree wholeheartedly with Furedi’s statement that ‘…we need to challenge the expectation that professional best practice in the public sector should be measured by the absence of complaints or litigation’. But this is followed by the rather chilling statement: ‘A genuine return to respecting the principles of professional judgement would have a humanising effect on public services.’ In other words, let’s turn the clock back to when people respected doctors and teachers and didn’t ask questions or make demands. Doctor, after all, knows best.
There is more than cosy nostalgia at work here. It is essentially an attack on access to justice, an attack on rights – the extension, awareness and enforcement of rights. Furedi writes that ‘professional autonomy is being increasingly challenged by its confrontation with an agenda of consumer rights’. Nothing says more than his use of the word ‘agenda’, a term laden with disgust and dismissal.
The source of ‘evidence’ on the rising culture of naming, blaming and claiming in education are articles from the Telegraph and the Daily Mail on outrageous sums awarded for ridiculous injuries. For more robust evidence, see the speech given in March this year by the Master of the Rolls, Lord Dyson (“Compensation Culture: Fact or Fantasy?“). He shatters myths around court decisions that gave rise to hysteria in the popular press, and he concludes that there have been no developments in substantive law encouraging a compensation culture.
The Furedi report argues that claims ‘inexorably’ lead to a diminishing of the public services and decline in the quality of education. Tell that to the young people with special educational needs who have had to fight for inclusion in mainstream schools. Those with behavioural difficulties face a constant struggle against being labeled bad. A survey conducted by the National Autistic Society (NAS) found that some 21% of children with autism are excluded, permanently or otherwise, from both mainstream and special schools, the most common reason given being that the school was unable to cope with the child.[1]
Others find that without legal challenges, schools and local authorities won’t make the physical changes needed so that children with mobility impairments or cerebral palsy can attend mainstream schools. Let’s follow Furedi’s lead and use anecdote here – but from a named individual who went public with his struggle. In April 2010 Jonathan Bartley, a parent of a child with cerebral palsy, confronted David Cameron about his claim that there has been a ‘bias towards inclusion’[2]:
‘We personally had to battle for two years to get our son into our local school, which his two sisters attend. It cost us thousands of pounds to go to a tribunal, which we then won. The local authority then said they would appeal against the decision to the high court. At that point, the secretary of state intervened, and paid for some modifications to the school. Samuel now attends the school.’
Instead of discouraging challenges, we need instead to encourage smarter complaining and better handling of complaints. Late settlements by local authorities is a constant problem with the SEN and disability tribunal. Whether it’s a tactic or it merely reflects departments under pressure, such settlements have a disproportionate cost for both parents and local authorities. The latter is, as Furedi would be the first to point out, public money being misused.
‘This is the perverse outcome of the modern fantasy of redress through litigation: every time we bring a claim against our health or education services, we are in effect suing ourselves. And every time we are encouraged to ‘name, blame and claim’ as an act of responsible citizenship, to stop other people sharing our bad experiences, we end up contributing to the worsening of these very services.
Where’s the evidence for that? This confused argument – that public services suffer when public bodies pay financial redress – has no foundation. The former Parliamentary Ombudsman Ann Abraham was straightforward in her condemnation of such an outdated approach: ‘Much work still remains to be done on the issue of financial redress. I’m still bewildered by the different attitudes to redress across the public sector: from local government where it appears to be understood and accepted; to central government where it is accepted – but somewhat grudgingly much of the time; to the NHS where it feels like pulling teeth… .’[3]
Complaints aren’t the enemy
An interview with Furedi allowed him to elaborate on his views:
“In conversation, Furedi is steadfast: ‘There shouldn’t be compensation claims for financial reward in the public sector. It is a completely irrational process because who pays for it? It is not the nurse or the teacher or the doctor who is found liable. No, it’s the taxpayer, the public purse – that is what pays for it. It leads to an irrational use of resources. People talk about the postcode lottery. This is even worse because resources are distributed according to whether you have a good lawyer or a bad one.’ “
What better argument for encouraging a culture where complaints are welcomed and efforts are made not just to resolve the individual grievance (which, yes, sometimes requires financial redress) but also to learn from complaints and improve? One way to do this, and to save public money in the bargain, is to encourage earlier use of mediation – independent, rights-based mediation to help resolve the complaint and identify what needs to change.
Where a complaint has no merit, mediation offers a cost-effective way to identify what has led to it – a misguided sense of justice, an unreasonable demand for cash, or – far more likely, in my experience – a breakdown of trust and communication. Trust is rightly cited by Furedi as a key issue – but trust isn’t earned by virtue of a degree certificate on display in the headteacher’s office.
The report suggests that it’s misguided to think that complaints foster greater accountability. Why? It argues that the institutionalisation of a culture of complaint has caused a rise in complaints. How do we know that complaints aren’t on the rise because of a decline in services or, more optimistically, a sign of progress and greater awareness? Show me the evidence.
[1] Barnard et al, Inclusion and autism: Is it working? (NAS, 2000).
[2] http://www.guardian.co.uk/commentisfree/2010/apr/28/jonathan-bartley-david-cameron-special-needs-schooling
[3] From “The role of the independent scrutineer: ensuring effective accountability”, Ann Abraham’s Annual Lecture to the Centre for Public Scrutiny, Feb 2005.
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