Introducing the first EMIN-certified elder mediator in England!

I’m thrilled that I’ve been certified by the Elder Mediation International Network (EMIN) as an elder mediator, having completed my training (in two years, during Covid, no less!) and successfully fulfilling the robust accreditation criteria and process of this important international network.

‘Congratulations to Margaret Doyle who has just successfully completed all the requirements for the beginning level of Elder Mediation International Certification. Margaret becomes the first Elder Mediator in England to achieve the newly established Cert.EM designation!’

https://elder-mediation-international.net/meet-emins-latest-cert-em-advanced-recipient-2-3/

As a network, EMIN raises awareness of elder mediation as an important area of specialist mediation expertise and, through its certification process, ensures that certified mediators adhere to a code of ethics and conduct their practice to a consistent, credible, recognised international standard.

Age in the UK

And to be the first mediator certified by EMIN in England is the icing on the cake (not the first in the UK – the first UK-based EMIN mediator is in Northern Ireland).

The field of elder mediation isn’t well known in the UK, but it’s thriving elsewhere in the world – including Canada, the US, and Australia. Yet the issues that elder mediation focuses on – ageing and all the pleasures and pains that go with it – are as pressing here as in most countries across the world. According to the Office for National Statistics, UK life expectancy at birth in 2018 to 2020 was 79.0 years for males and 82.9 years for females. Our population is ageing, with our demographics shifting towards older ages because of declining fertility rates and people living longer. The ONS projects that by 2032, nearly 20% of the population in the UK will be of pension age or older.

These projections aren’t uniform across the UK. As the Resolution Foundation has explained, in its report Ageing Fast and Slow, Britain has experienced demographic divergence, with older places ageing faster than younger ones and younger places getting old at a slower pace (or actually getting younger). 

Such demographic divergence matters for local government, the Foundation points out. It also matters for the services for older people administered by local government, because ‘revenue streams often do not match well with the service requirements of local populations of very different – and ever more different – ages’. There are tensions built into demographic change and divergence in the UK, tensions that can lead to disagreement and dispute.

What is old?

What is ‘old’ is a fluid and contentious topic. Here in the UK, ‘old’ might be over 50, the age at which we become eligible for sheltered accommodation. Or it might be 60, when those of us who live in London become eligible for a ‘Freedom Pass’ allowing free travel on tubes and buses. Or it might be the age at which we can start taking our state pension – for some that’s still 65, but for younger groups it’s 66, 67, and going up all the time. Or ‘old’ might be 70, the proverbial three score and ten, or 80, the age at which people were required to shield in the first lockdown of the pandemic.

I’m not overly concerned to define ‘old’, nor am I keen on terms like ‘elder’, and certainly not ‘the elderly’. What I am concerned with is that as we age, we are well supported to live the lives we want to live and we aren’t dismissed, patronised, or excluded. This isn’t about autonomous independence, but about relational independence: living as independently as we want to within reciprocal relationships, whether those be relationships of care or friendship, at home or within our communities, or with the state agencies with whom we interact.

Some of my reading material on ageing and on social care

Why ‘elder’ mediators?

I’ve been a mediator for more than 30 years, and I’ve specialised in disputes involving equalities and specifically disability rights. Although I can now be considered an elder myself, not all mediators are older people, nor do they need to be. But they do need to understand issues and concepts that might not arise in other areas of mediation practice.

The requirements for EMIN certification include being an already accredited mediator and undertaking additional specialist training (70 hours minimum) on issues including elder abuse and safeguarding, family and intergenerational dynamics, legal issues including powers of attorney and guardianship, and dementia. For my area of practice, I need to understand how social care works, including funding of long-term care. And elder mediators need to be curious and engage with questions about how we perceive vulnerability and the way ageism impacts decisions made with and for older people.

How can mediation contribute?

I believe that mediation can contribute to much-needed conversations and ideas about ageing. The underlying principle of participation and supported decision-making is key to mediation. It is also key to the theory, if not always the practice, of work done in social services, health care, including mental health, and disabilities services, including another area in which I work, that of special educational needs and disability rights. The social model of disability rights is one that can be adopted in age rights as well; it moves us away from a medical model, one that focuses on impairment, and explores and addresses the barriers (both physical and attitudinal) that compromise people’s ability to flourish.

Many of the techniques used in mediation are those used in a Strength-Based Approach used by social care professionals, which explores in a collaborative way the entire individual’s abilities and their circumstances rather than making the deficit the focus of the intervention. It is about gathering a holistic picture of the individual’s life, including from their network and other professionals. 

So there is a natural affinity between mediation and the interactions between people and the institutions and government bodies involved in social care and health care.

Who uses elder mediation?

Families, friends, community groups, care homes and agencies, hospices and hospitals – all can make use of elder mediation where disagreement about care or decision-making is affecting quality of life and relationships.

It isn’t just about resolving individual disputes and disagreements. It’s a practice and approach that contributes to better listening and more shared experience. It’s also not always about, or only about, ageing; it can also be about intergenerational dynamics and frictions, about fairness between the young and old, and about the need for better, more creative conversations between generations and within communities.

I look forward to working with individuals, communities, and care and health organisations in this new area of practice!


Making rights worth having: the report of the Lords Select Committee on the Equality Act 2010 and Disability

 

 

 

‘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.’

Equality Act

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.


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.


Inclusion – try it, it’s good for you!

One in five of us has a disability.

This might not come as a surprise in light of the very successful Paralympic games, which put disability at centre stage. But will this visibility last? Two years ago, as planning for the Games was in full swing, the UK government issued a Legacy Promise for Disabled People, setting out its commitment to bringing a shift in the way society views disability and to doing away with the obstacles that prevent people with disabilities from being fully included in all parts of society.

One aspect of this Legacy Promise is a commitment to improve accessibility of public transport. Gaps between the high-level commitment and the reality on the ground is an issue covered elsewhere in the article “Mind the Gap: What we’ve learned from the Paralympics” written with my colleague David Hilton.

Another aim of this Legacy Promise is to promote to business the benefits of attracting customers with disabilities. As with the ‘Pink pound’ campaign, making a business case for better access to goods and services for disabled people is considered to be more effective than threats and sanctions for breaching equalities legislation. Research conducted in 2010[1] found that one of the main barriers for small businesses was not knowing how to boost sales by attracting disabled customers.

So I welcome a new booklet produced for small businesses called Growing Your Customer Base to Include Disabled People. Published by the Department for Business, Innovation and Skills, together with the Employer’s Fourm on Disability and the Office for Disability Issues (ODI), the booklet [http://odi.dwp.gov.uk/docs/idp/Growing-your-customer-base-to-include-disabled-people.pdf] provides clear and useful guidance on attracting and retaining customers by improving access to services.

It’s mostly parenthood and apple pie stuff – uncontroversial, unthreatening, even comforting in its common-sense approach. The problem is businesses need to know that even when it isn’t easy to improve access, it’s still the law. And that even with the best intentions, there will always disagreements over what is meant by reasonable adjustments and how far businesses need to go to ensure their services are accessible.

It’s unfortunate that at the same time we’re looking to see evidence of a legacy from the Games, we’ve seen a loss of the specialised service that helped businesses and disabled people resolve such disagreements. The Disability Conciliation Service was set up in 2002 by the Disability Rights Commission, and in the merging of the equalities commissions it transformed into the Equalities Mediation Service. Over the past ten years it has handled hundreds of discrimination cases and helped businesses and their customers to achieve long-lasting changes to the benefit of both. The government stripped the Equality and Human Rights Commission of its power to fund the service and refer cases to it. This sent a strong and unwelcome message – that it isn’t society’s responsibility to promote inclusion, and that disputes over accessibility are no different from disputes over building repairs or neighbour problems.

But these are different, and disputes over access aren’t a problem just for the one in five of us with a disability. We are all disadvantaged if we fail to live up to the promise of inclusion. It isn’t just good business, it’s our business.


[1] Carried out by Atkins Limited for the Office for Disability Issues, www. http://odi.dwp.gov.uk