Reframing mediation’s values in citizen-state disputes

Anni Albers

South of the Border, 1958. Anni Albers. (photo by Margaret Doyle)

I mediate in disputes between families and schools and local authorities involving support for special educational needs and disabilities (SEND). This falls within the arena of administrative justice – the interactions between individuals and communities and state institutions – and in this context of citizen grievance (‘citizen’ referring to anyone subject to decision-making by the state), mediation is not a cheap and fast alternative to litigation. To portray it as such diminishes the promise that mediation holds to humanise state bureaucracy and reposition the citizen-state relationship as one of mutual and shared rights and obligations. In this context, rather than a focus on settlement, mediation’s values should be underpinned by reciprocity and recognition, and linked closely with the ways that we embed social rights in our everyday interactions.

Far from celebrating the alternative mechanisms for giving force to social rights, such as mediation and the ombud, advocates of social rights have often lamented the lack of legal enforcement and argued for ways of making social rights justiciable in the courts. Even when the desirability of process pluralism is accepted (a ‘horses for courses’ approach promoted by the Administrative Justice and Tribunals Council (AJTC 2010)), priority has been given to the courts as the leading protagonist in any future partnership of relevant agencies. Mediation and other informal mechanisms have as a result found themselves relegated to the margins as a means of providing effective accountability for social rights violations.

This is one of the premises of our book, Reimagining Administrative Justice: Human rights in small places (Palgrave 2019), in which my co-author Nick O’Brien and I propose a realignment of administrative justice and human rights, and specifically social rights, as a means of fostering more sustainable and democratic responses to citizen grievance. I am a mediator; he is a tribunal judge. Together we see what increasingly resembles a busy assembly line of complaints and appeals that is costly in human and financial terms without evidence of sustainable improvement. We consider how mediators, ombuds and tribunals can work in a complementary, not competitive, way to support democratic accountability.

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New orthodoxies

In the book, we challenge the orthodoxies of administrative justice that prioritise the individual user, a well-oiled system, and closure by ‘resolution’.

The individual user has become sacrosanct in debates about the design of administrative justice. Reflecting the consumerist ambition that the point of reference is the individual ‘user’ of any service and that ‘user friendliness’ is the ultimate aim, proposals for redesign of administrative justice assume that any response to citizen grievance should be judged by how effectively it offers ‘user satisfaction’, whether in accessing a tribunal, mediator or ombud. Yet there are grounds for scepticism about this assumption, not because the user is unimportant but because the true identity of ‘the user’ is frequently contested, rarely simple, and never a matter of purely individual choice, divorced from all social and shared need.

Policy makers and academics often observe that, in contrast to the criminal justice, family justice or civil justice systems, the administrative justice system does not as yet exist, and moreover that this is a bad thing. This observation assumes the desirability of making administrative justice more ‘systematic’, in the sense of more clearly structured and bounded, with practice and process more uniformly prescribed and co-ordinated. This striving for systematisation, for consistency and certainty, looks dubious as an overarching strategy, not least because it fails to take account of the unavoidability of uncertainty and the need to remain ‘agile’ in the face of an unpredictable future. Too much ‘system’ can lead to precisely the uniformity, bureaucracy and inflexibility that administrative justice has always aspired to counter. We suggest recasting administrative justice as less of a system and more of a woven fabric, to look for what Bauhaus weaver Anni Albers described in 1958 as the ‘interdependent threads’ that, when connected, ‘form a cohesive and flexible whole’ (Albers 1965).

And finally, the emphasis on individual redress has reinforced the expectation that any serious attempt to respond to citizen grievance must aim for finality and ‘closure’. Even if the outcome is one of disappointment for the individual complainant, at least the administrative justice process will have brought things to an end, achieved closure and allowed for business to resume. To design for closure, however, is to design for resignation, for the acceptance of limit and definition, for boundary and exclusivity. The ability of administrative justice to engage in iterative practices, deliver provisional outcomes, and enable future creative participation, albeit under the shadow of inevitable uncertainty, is seriously constrained by such an ambition.

Design theory and the ‘problem in relationships’

In proposing the alternative orthodoxies of community rather than individual user, of a network rather than system, and of openness rather than closure, we explored design culture as a source of new ideas. Design theory has begun to feature in discussions about the future of administrative justice, and the prospects of a ‘digital by default’ future require us to reflect on what design might mean for administrative justice and for the fabric of the justice system more generally. The trajectory of design culture in the past 75 years and its own entanglements with democratic values, individualism and the marketplace illustrate how design has been subjected to similar pressures as those exerted on administrative justice and human rights. Innovative and progressive solutions have emerged in design culture, and part of the purpose of this book is to explore the resonance between ideas in design culture and the reconnection of human rights with administrative justice as proponents of a reinvigorated democracy. It is in the design of the public realm, in urban planning and housing development that the values that can shape a reinvigorated democracy become most clearly visible and in which the possibilities for administrative justice and human rights emerge most clearly.

Lack of trust is often cited as being at the core of the problematic citizen-state relationship. That lack of trust works both ways – not only in how the citizen views the state but how state institutions view the citizen. As political theorist Danielle Allen has noted, ‘citizenship is not, fundamentally, a matter of institutional duties but of how one learns to negotiate loss and reciprocity. … unrestrained self-interest does not make the world go round but corrodes the bases of trust’ (Allen 2004:165).

Where does mediation fit into this? We argue that mediation plays an unheralded role in this reshaping of the citizen-state relationship. That relationship is often characterised as one bounded by the constraints of standardised, faceless bureaucracy – but that bureaucracy is the frontier where the citizen meets the state and feels its texture. The problem in bureaucracy is, in turn, a problem in relationships. Human rights and administrative justice are, in their different ways and common origins, both means of humanising those relationships and investing them with democratic credibility.

Our book explores mediation techniques and their potential place as part of a networked and loosely woven administrative justice fabric. The use of the senses is important – looking, listening, even touching, where that suggests a lingering feeling of empathy, of common humanity inherent in an ethic of care approach that recognises the interdependence of citizen-state relationships. Mediation and other so-called extrajudicial institutions of administrative justice are not about policing bad behaviour but about promoting good behaviour on behalf of the community, including good administration. They are therefore well suited to restoring the humanity in bureaucracy, to ensuring that the way we touch the state, and it touches us, is constructive, not destructive.

Mediation as ‘appropriate alternative’ or ‘collaborative complement’?

Two areas in particular illustrate the need for a model that embraces democratic participation and the relaxing of confidentiality rules: planning and development, and special educational needs and disabilities. In both contexts, at least one of the parties is a public authority with requirements to report (to auditors, for example) or to answer to democratically elected representatives (local authority councillors, for example), and both involve consideration of wider community interests (CEDR 2003). Therefore, it may be both undesirable and unfeasible to impose confidentiality on mediation of public sector cases, including but not only multi-party public policy disputes. Critiques of claims for mediation’s advantages of speed, low-cost, and informality are justifiable (Pearce and Stubbs 2000; Bondy, Doyle, Reid 2005), but in a public-interest context it is the promised multi-interest engagement that is more interesting to explore – its added value more than its alleged proportionality.

In the book we examine special educational needs and disabilities (SEND) in England as a case study to highlight mediation’s potential to contribute to the democratic accountability work of administrative justice. In 2018, 3,200 SEND mediations were conducted. This is a complex and multi-faceted landscape, with a range of complaint mechanisms for different types of disputes operated by different public bodies and private actors (schools, local authorities, Secretary of State, the NHS, Ofsted, the SEND Tribunal, SEND-accredited mediators, the Local Government and Social Care Ombudsman, judicial review). It is an area rich with the polycentricity of disputes, with their overlapping web of perspectives, and alive to the tension between individual and collective rights.

In the SEND context the impetus for mediation is usually a challenge to a specific local authority decision that can be appealed to the Tribunal, but in reality the mediation encompasses a multiplicity of issues that go beyond the grounds for appeal, reflecting the ongoing relationship between families and schools and local government. It is not only the interests and needs of the parties attending that have to be taken into account. Collective interests are inherent in the duties that local authority SEND teams have for accounting for use of public funds, in schools’ needs to be supported, and in the needs of all pupils in the community to have access to inclusive education. Mediation as a means of democratic co-design offers the promise of addressing both individual and collective needs; it is essentially about connection, and it embraces conflict as a positive force for change. In that way, it allows for many voices and lends itself to the polycentric nature of SEND disputes.

The ‘sensibility’ of mediation

The ability of mediation to accommodate many voices and issues gives it a distinct texture or ‘sensibility’ that can complement more determinative grievance mechanisms. Mediation works in tandem with tribunals, as in the SEND context, and with the ombud; disputes can be mediated before or even after an ombud investigation, for example (LGSCO 2017:7; OIA 2013). It can also function as a complement to judicial review and the Court of Protection, often in complex cases in which disability rights are at the core (Bondy and Doyle 2011; May 2017).

More often, however, mediation has been presented as an alternative, not a complement, to more formal legal processes and even as an answer to the perceived problems besetting the courts, ‘gridlocked with competing sides or overworked with too-big-to-handle dockets’ (Menkel-Meadow 2002:53-54). Government policy, from Lord Woolf’s Access to Justice report in 1996 through to ‘proportionate dispute resolution’ as advocated in the 2004 White Paper, the 2007 Act, and the 2016 Transforming Our Justice System paper, has set out to promote mediation and other informal mechanisms of resolution as an answer to the perceived ‘problem’ of overcrowding in, and lack of access to, the formal justice system. What is needed, however, is a shift away from an emphasis on proportionate and fast toward an integrated network of complementary approaches that can accommodate the looseness that enables mediation to be more than about resolution or settlement. As we write in Reimagining Administrative Justice, this shift does not prioritise cost and speed; instead it prioritises principles of openness and community interest that are compatible with fostering democratic engagement and accountability, mutualism and difference.

These principles resonate with what has been called the transformative dimension of mediation, linked to ‘an emerging new vision of self and society, one based on relational connection and understanding rather than on individual autonomy alone’ (Bush and Folger 2005:23-24). This reflects a shift from an individualistic vision to a relational and interactive one, bringing individual freedoms together with social conscience. Settlement-oriented behaviour by mediators (often encouraged not only by policy imperatives but by codes of conduct and practice standards) is linked to a wider issue of ‘conflict control’ and to the fundamentally pessimistic ideology identified by Bush and Folger that holds that because human beings are ‘incapable of engaging with one another without destructive consequences’, social interaction is a destructive force (Bush and Folger 2005:247).

If this seems over-dramatic, consider the language used in some descriptions of the mediator’s role – to ‘control’ the process, ‘manage’ emotions, helping people to move away from ‘unreasonable’ positions – and some techniques, including keeping parties apart in caucus sessions, coercion and even bullying by mediators (Genn et al 2007; Enterkin and Sefton 2006). Mediation is not about neutrality, contrary to popular belief, nor is it about managing or controlling conflict. Concerns about the dangers of interaction are rooted in the view that individuals are driven by desire of fulfilment and that interaction must be limited and controlled so it meets that need but does not spill over into conflict, which is something to be managed in what is called ‘conflict control’. A ‘conflict-control’ model relies on a deficit view of human capacity linked to an ‘ideology of individualism’ and a notion that social interaction should be ‘tolerated but watched carefully’ (Bush and Folger 2005:245).

New priorities

I’m not against settlement or resolution. In many contexts it is what parties want and is an acceptable ambition. In the spaces of citizen grievance and public administration, however, rather than measuring the success of mediation by the number of settlements achieved, we should be aiming for mediation to be measured in terms of sustainability – whether it offers an alternative to the assembly line of complaints and appeals that the administrative justice ‘system’ increasingly resembles. Sustainable outcomes are possible when the interaction between people in conflict is open, iterative and deliberative, not funneled toward settlement.

Mediator and academic Carrie Menkel-Meadow suggests that mediators are reshaping the processes they use to move away from a focus on resolution and ‘right answers’ to focus on the ‘sensibility’ of mediation, one that adopts a feminist emphasis on needs and that prioritises empathy and listening rather than closure. She writes of what she considers to be ‘mediation values’ – reconciliation, listening, storytelling, empathy, understanding, accountability and apology, if not forgiveness – being used in both large and small arenas, including in human rights claims and in controversial community-wide issues. One such arena is SEND, which entails social rights and state decision-making and must accommodate often competing collective and individual needs, and in which such a reshaping is necessary.

Mediation in this sense is therefore more than mere dispute resolution or the creation of a safe space for negotiated justice. It becomes instead a technique for allowing citizens’ voices to be heard, for constructing bridge-building dialogue and for the restoration of relationships that are public and institutional rather than private and personal.

References:

Administrative Justice and Tribunals Council (AJTC) (2010). Principles of Administrative Justice. London: AJTC.

Albers, A (1965). On Weaving. Middletown, CT: Wesleyan University Press.

Allen, D (2004). Talking to Strangers: Anxieties of Citizenship since Brown v. Board of Education. Chicago: University of Chicago Press.

Bondy, V and Doyle, M (2011). Mediation in Judicial Review: A practical handbook for lawyers. London: Public Law Project.

Bondy, V, Doyle, M and Reid, V (2005). Mediation and Judicial Review – Mind the Research Gap. Judicial Review 10(3), 220-226.

Bush, RAB and Folger, JP (2005). The Promise of Mediation: The Transformative Approach to Conflict. San Francisco: Jossey-Bass.

Centre for Effective Dispute Resolution (CEDR) (2003). ADR for public authorities: A guide for managers. London: CEDR.

Enterkin, J and Sefton, M (2006). A report on the Exeter Small Claims Mediation Pilot. DCA Research Series 10/06. London: Department for Constitutional Affairs.

Genn, H et al (2007). Twisting arms: court referred and court linked mediation under judicial pressure. Research Series 1/07. London: Ministry of Justice.

Local Government and Social Care Ombudsman (LGSCO) (2017). Education, Health and Care Plans: Our first 100 investigations. London: LGSCO.

May, C (2015). Mediating Court of Protection cases – Summary of research. UK Administrative Justice Institute (UKAJI) blog.

Menkel-Meadow, C (2002). When Litigation Is Not the Only Way: Consensus Building and Mediation As Public Interest Lawyering. Washington University Journal of Law and Policy 10, 37-62.

National Audit Office (2018). Handling of the Windrush situation. HC 1622 Session 2017–2019. London: National Audit Office.

Office of the Independent Adjudicator (OIA) (2013). Mediation – a guide for students. Reading: OIA.

Pearce, B and Stubbs, M (2000). The role of mediation in the settlement of planning disputes at appeal: the debate and research agenda. Environment and Planning 32, 1335-1358.

 


‘Anecdote rich but data poor’: The exponential growth of mediation in a shadowy corner of administrative justice

A little-known fact is that mediation is alive and well, indeed thriving, in administrative justice in England. This is in the area of special educational needs and disabilities (SEND), in which, under the Children and Families Act 2014, mediation has been given unprecedented prominence as one of the mechanisms for addressing challenges to local authority decision-making. This post considers the exponential growth in mediation since 2014 and suggests that in light of this growth, it is essential to improve the data collected and published on how such challenges are addressed in both mediation and the tribunal.

Background

The term ‘SEND’ refers to special educational needs and disabilities and the identification of and support for children and young people with these needs from birth to age 25. This is the age group covered by the statutory framework in England under the Children and Families Act 2014 (CFA) and the 2015 SEND Code of Practice (2015 CoP).[1] SEND disputes relate to decisions made by local authorities (and to some extent Clinical Commissioning Groups (CCGs), where health provision is involved) regarding identification of education, health and social care needs and the provision of support to meet those needs.

Decisions made by local authorities on SEND provision reflect many aspects of concern in administrative justice. These include the quality of initial decision-making, the accountability of public bodies, human rights considerations in the delivery of public services, and mechanisms by which people can challenge and appeal such decisions, all of which must be considered in the current context of severe budget pressures on schools and local government and concerns about efficiency.[2]

As part of a knowledge exchange project I have been conducting in connection with the UK Administrative Justice Institute at the University of Essex, I have explored what we know and what we don’t know about the mechanisms for resolving disputes about SEND. The project is concerned with young people’s participation in SEND dispute resolution, and it has a particular focus on mediation because of the parties’ distinctive role as decision-makers in mediation, which is quite different from their role in tribunal hearings or ombud complaints.

A complex landscape

The disputes and complaints landscape related to SEND is complex and multi-faceted, with a range of complaint mechanisms for different types of disputes operated by different public bodies and private actors (schools, local authorities, Secretary of State, the NHS, the SEND Tribunal, mediation, the Local Government and Social Care Ombudsman, judicial review). Other public bodies with a role to play in SEND complaints include the Children’s Commissioner and Ofsted, both of whom have recently engaged with the issue of SEND in relation to school exclusions. The landscape is set out in a two-page table in the SEND 2015 Code of Practice (pp.246-247).

Unresolved disagreements and complaints relating to requests for statutory education, health and care (EHC) needs assessments and EHC Plans; changes to EHC Plans; and decisions on placement (the education setting named in the EHC Plan) can be lodged as appeals to the First-Tier Tribunal (SEND). The Ministry of Justice suggests that the year-on-year increase in appeals to the SEND Tribunal (27% increase in 2016-17) is due to the expansion, under the Children and Families Act, of the criteria of SEND to cover from birth to 25-year-olds in education (excluding higher education) and to cover health and care as well as education.[3]

Most pupils with SEND do not have statutory EHC Plans, for which the local authority is responsible, but their needs and provision are determined by schools and colleges under what is called SEN Support. Complaints about SEN Support are not considered by the Tribunal but can be considered through complaints procedures of schools and colleges, and ultimately by the Secretary of State. This is an area identified as a gap for which no effective independent redress mechanism exists.

Other routes for disagreements and complaints about SEND include the Local Government and Social Care Ombudsman (LGSCO) for complaints about local authority social care and education; and judicial review for claims relating to a local authority’s failure to make provision set out in an EHC Plan. In 2017, the LGSCO published a report on local authority failures identified in the first 100 complaints it has considered about EHC Plans. It upholds 80% of the complaints in this area, far higher than the average uphold rate across its jurisdiction.

Polycentricity of SEND disputes

My experience as a SEND mediator reflects that although the dispute triggering the mediation is a challenge to a decision by the local authority, one that can be appealed to the tribunal, there are other disputes at play, including between parents and schools, parents and young people, local authorities and schools, local authorities and CCGs. The disputes in SEND are often polycentric, meaning they involve a number of parties with a range of interests and needs. Teachers can feel under pressure to deliver particular outcomes without adequate support or resources. They often feel parents make unreasonable demands about the type or level of support the pupil needs. In such cases, schools and teachers may neglect to involve parents or pupil in the planning of support. It is not uncommon for parents of pupils with SEND to be banned from school premises if they are considered troublesome, just as pupils with SEND are often excluded (formally or informally) for what is considered bad behaviour. Parents might become overprotective of their children, and their requests for support can clash with their child’s need to develop independence and social skills; this can arise in particular where parents are requesting transport to take their child to school or one-to-one learning support within the classroom.

Cost is a constant source of tension: parents might perceive that appropriate provision involves delivering a specialised programme or sending the child to a residential school; the local authority might consider that providing these options compromises their duty to all children and young people in their area and their responsibility to make efficient use of public funds. In this respect, other parents and pupils within a wider community may become stakeholders with interests in the outcome of a specific case in which they are not involved. The fact that resources for SEND provision are capped public funds means that what are seemingly ‘private’ issues involving one family can become ‘public’ issues with wider ramifications.

The place of mediation

The inherent tension between effectiveness and efficiency, a tension that features in many aspects of administrative justice, and the polycentric nature of these disputes make mediation particularly appropriate because of its ability to accommodate many voices and perspectives. Unlike mediation in civil and commercial disputes, in the SEND context mediation does not prioritise settlement but instead prioritises collaborative problem-solving in a way that allows for expression of the parties’ different, and often conflicting, needs and interests. Settlement in the conventional sense happens (eg a local authority agreeing to a request to assess or to issue an EHC Plan) – this is suggested from the statistic of three-quarters of mediations that do not go on to appeal. But without better data we can’t conclude that those cases that mediate and do not go on to appeal are ‘resolved’.

Although mediation doesn’t result in judicial determinations in the way a tribunal does, it takes place in the shadow of the legal framework, taking account of statutory rights and obligations in relation to SEND, equalities and human rights. Mediation is open and holistic as a process in a way that allows parties to explore wider issues, ones that gave rise to the complaint as well as ones that influence the sustainability of any agreed outcomes. In that way, mediation is not an alternative to tribunal or the ombud in the conventional sense but is complementary to those processes and is, with them, part of the wider accountability network in SEND.

Mediation has been part of the SEND framework in England since the 2001 Code of Practice articulated the importance of independent disagreement resolution for these disputes and the duty of local authorities to make resolution services available. Details of mediation requirements and procedures are set out in the Special Educational Needs and Disability Regulations 2014. It is now a requirement, in all but a few exceptions, for parents or young people to consider mediation before appealing to the tribunal. Parents and young people who wish to appeal to the tribunal are required to obtain a mediation certificate (other than in cases involving only educational placement). The certificate is obtained after receiving information on mediation from a mediation adviser (who might also be a mediation provider) or after mediating; the aim is to give parents and young people the opportunity to consider attempting to reach a mutually acceptable agreement through mediation before going to appeal.

Whether or not to use mediation is voluntary for parents and young people; those who decide not to mediate following a Mediation Information and Advice Session (MIAS) will be issued with a certificate right away, which will allow them to lodge an appeal (within the deadline, which is either two months from the date of the local authority decision or 30 days from the date of the certificate, whichever is later). Those who agree to attempt mediation will be given a certificate following the mediation, which allows them to lodge an appeal (should one be considered necessary) within 30 days of the date of the mediation. If a parent or young person wants to use mediation, the LA is required to attend and to send someone with decision-making authority. This is the first use of compulsory mediation in the UK and presents a challenge to one of the fundamental principles of mediation – that it is voluntary for all parties.

Increase in mediation

There has been a steep increase in the number of mediations since the Children and Families Act 2014, from 75 in 2014 to 2,497 in 2017, as shown in the table below.[4]

 

Number of mediations, England

(Dept for Education Statements of SEN and EHCPs statistical releases 2015-18[5])

Year

Mediations

2014 75
2015 1,400
2016 1,886
2017 2,497

This increase has occurred without any parallel increase in scrutiny of the mediation process, aside from the recent development of SEND-specific mediator practice standards.[6]. Other reasons to focus on mediation include the confidentiality of the mediation process and the distinctiveness of the parties’ role in mediation, which goes beyond attending or giving views and requires active decision-making.

Of the 2,497 mediation cases, 630 (25.2%) were followed by appeals to tribunal during 2017 (and others mediated in 2017 would have been followed by appeals in 2018). This is similar to the previous three years, in which roughly one-quarter of mediation cases were followed by appeals. No other data are published by the Department for Education on mediations, and mediation providers do not routinely publish data on the cases they handle.

There were more SEND mediations conducted than SEND tribunal hearings (2,497 mediations in 2017 compared with 1,599 SEND tribunal hearings in 2016-17).

SEND Tribunal appeals, England 2016-17[7]
Appeals registered Appeals decided Appeals decided in favour of appellant Disability discrimination appeals
4,725 1,599 1,418 132

In 2016-17, 4,725 appeals were registered in relation to SEN, an increase of 27% when compared to the prior year. The number of appeals disposed of was 4,387, of which 1,599 (36%) were decided by tribunal (the majority, 64%, being withdrawn or conceded). The statistics suggest a high percentage of tribunal appeals withdrawn or conceded before hearing and a high rate of success at hearing by parents in certain types of appeals. Of the decided cases, 1,418 (89%) were in favour of the appellant.

Conclusion

The knowledge exchange project A Place at the Table has illustrated the data gap in the area of SEND disputes, which has been described as an area that is ‘anecdote rich but data poor’. This is not particular to SEND; despite recent attempts to open up centrally held data and a commitment from HMCTS and the Ministry of Justice to work collaboratively with researchers, administrative data can be difficult to access and understand, and there is a shifting landscape in administrative data sources. Also, government departments take different approaches to collecting and releasing data.

How can we increase the quantity and quality of data collected and published for both mediation and tribunal cases? The Department for Education could work jointly with the Ministry of Justice to review the data collected and published and consider how to improve the statistics. This will in turn help with scrutiny of how these mechanisms are working, especially given the exponential rise in mediation numbers in the past four years. A first step might be to undertake a data audit of what information is collected on SEND complaints and disputes.

[1] For a comprehensive overview of legislative and policy developments, see Harris, N (2018), ‘Autonomy, Rights and Children with Special Needs: A New Paradigm?’, Working Paper 2, Centre for Research in Education Inclusion and Diversity, University of Edinburgh, University of Manchester, http://www.docs.hss.ed.ac.uk/education/creid/Projects/39_ii_ESRC_SENChildren_WP_2.pd f. For a comprehensive overview of procedures for complaints and dispute resolution, including mediation, for disabled children and young people, see Chapter 11 of Broach, S, Clements, L and Read, J (2016), Disabled Children: A Legal Handbook, 2nd edition, Legal Action Group, available at http://councilfordisabledchildren.org.uk/help-resources/resources/disabled-children-legal-handbook-2nd-edition.

[2] See, eg, Local Government and Social Care Ombudsman (2018), Under Pressure – the impact of the changing environment on local government complaints; National Audit Office (2018), Financial sustainability of local authorities 2018.

[3] Ministry of Justice, ‘Tribunals and Gender Recognition Statistics Quarterly, July to September 2017’, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/667449/tribunal-and-GRC-statistics-Q2-201718.pdf

[4] Department for Education (2018), ‘Statements of SEN and EHC Plans, England‘, SFR May 2018.

[5] Available for years 2014-2017 at https://www.gov.uk/government/collections/statistics-special-educational-needs-sen#statements-of-special-educational-needs-(sen)-and-education,-health-and-care-(ehc)-plans

[6] Mott McDonald, Department of Health, Department for Education (2018a), ‘Professional Standards for SEND Mediators‘.

[7] Ministry of Justice, Tribunals and Gender Recognition Statistics Quarterly, July to September 2017.


A place at the table: young people’s participation in SEN mediation

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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

 

 

 

‘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.


‘Manning’ the ombuds barricades

Ombuds Research

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

Students 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

UKAJI

Varda Bondy, Margaret Doyle, and Carolyn Hirst

IRbO_logoThis 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!

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.


Why LASPO is like Spanx

Most 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?

As 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.