‘Anecdote rich but data poor’: The exponential growth of mediation in a shadowy corner of administrative justicePosted: 26 February 2019
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.
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). 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.
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.
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 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.
|Number of mediations, England
(Dept for Education Statements of SEN and EHCPs statistical releases 2015-18)
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.. 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|
|Appeals registered||Appeals decided||Appeals decided in favour of appellant||Disability discrimination appeals|
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.
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.
 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.
 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.
 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
 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
 Ministry of Justice, Tribunals and Gender Recognition Statistics Quarterly, July to September 2017.
Making rights worth having: the report of the Lords Select Committee on the Equality Act 2010 and DisabilityPosted: 27 April 2016
‘We recommend restoring the Equality and Human Rights Commission’s power to arrange the provision of conciliation services for non-employment discrimination claims. The service specification should provide for a range of delivery methods to ensure it is accessible, including provision of face-to-face conciliation, and the service should take direct referrals from the Equality Advisory and Support Service or its replacement.’
Last month the House of Lords Select Committee on the Equality Act 2010 and Disability reported on its inquiry into the Act and concluded that government inaction is failing disabled people. The inquiry, which started in June 2015, received 144 responses to its Call for Evidence and heard oral evidence from 53 witnesses. The published report sets out the committee’s conclusions on a range of issues including the Public Sector Equality Duty, reasonable adjustments, access to services in transport, housing, and leisure facilities, and enforcement and access to justice. It highlights the barriers to challenging disability discrimination in terms of cuts to legal aid, court and tribunal fees, and procedural changes and notes that rights without enforcement are meaningless: ‘Rights which are unenforceable are not worth having.’
It was particularly heartening to see the Committee’s criticism of the Coalition Government’s weakening of the Equality and Human Rights Commission (EHRC) and its abolition of the EHRC’s power to arrange independent mediation (conciliation) for non-employment cases. I worked as an independent mediator with the original Disability Conciliation Service, set up by the Disability Rights Commission, and its successor, the Equalities Mediation Service. Over the years, from 2001 to 2013, we handled many hundreds of claims alleging disability discrimination in the provision of goods and services.
This provision, the report states, was one of the casualties of the Red Tape Challenge, and it was abolished, with other measures in the Act, because it was considered to place unnecessary or disproportionate burdens on business. The report suggests that the Government should have given the same consideration to measures placing an unnecessary or disproportionate burden on disabled people, and Baroness Deech, chair of the Committee, said: ‘Intended to reduce the regulatory burden on business, the reality has been an increase in the burden on disabled people.’
It’s useful to be reminded of the background of the mediation provision and its demise. From the report:
‘447. The Disability Rights Commission developed a conciliation service to which any complaint arising out of an alleged failure to provide goods or services in a non-discriminatory way under the DDA could be referred for resolution. When the Disability Rights Commission was replaced by the EHRC, section 27 of the Equality Act 2006 gave the EHRC the power to provide conciliation services.
448. In March 2011 the Coalition Government, as part of its examination of public bodies, issued a Consultation Paper putting forward a number of suggestions for changes to the role and functions of the EHRC. One of the questions asked was: “Do you think the Government should repeal the EHRC’s power to make provision for conciliation services, as part of the process of focussing the EHRC on its core functions?” Of the 293 responses received, 61 agreed, 206 disagreed and 26 were not sure. Despite this the Government concluded:
“We have now decided to repeal the EHRC’s power to make arrangements for the provision of conciliation in non-workplace disputes. We do not believe that arranging conciliation services for individual cases fits with the EHRC’s strategic role, or that it is necessary in light of the range of good quality, accessible and effective mediation provision already available throughout England and Wales and Scotland.”
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.” 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.” 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.”
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.
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.
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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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.
Varda Bondy, Margaret Doyle, and Carolyn Hirst
This month saw the publication of a Nuffield Foundation-funded mapping study on the use of informal resolution by ombudsmen (download here), launched at two events in London (at the Nuffield Foundation) and Edinburgh (at Queen Margaret University). Both were attended by practitioners and representatives from administrative justice fora from the UK and the Republic of Ireland, as well as academics with specialist expertise and interest in this field. Such an audience was, unsurprisingly, not shy about giving their reactions and offering their own views – which is how it should be, and it is hoped that the report will encourage further discussion of the issues raised in it.
While ombudsman schemes are in themselves considered to be part of the ADR scene, various alternatives to the investigation process as originally designed have been developed over time. Little was known about the process and…
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Student complaints: are campus ombuds the answer?
The potential role of campus ombudsmen is a bit of a hot topic at the moment in England and Wales, at least in the world of student complaints. Campus ombuds have been around for some time in the USA. Most universities there seem to have someone in this role. In the UK, however, they are a relatively little known phenomenon.
What is a ‘campus ombuds’?
The International Ombudsman Association (IOA, http://www.ombudsassociation.org), the professional body for ombuds in the USA and elsewhere, describes different types of creature – classical, organisational and advocate ombuds. Campus ombuds fall into the organisational ombuds category, which the IOA defines as ‘a designated neutral who is appointed or employed by an organisation to facilitate the informal resolution of concerns of employees, managers, students and, sometimes, external clients of the organisation’.
Most campus ombuds operating in the US do not investigate complaints themselves but act as a resource for staff and students who experience difficulties and might be considering raising a formal grievance. Although operationally and personally independent, they are for the most part accountable to the university that employs them. Their operational independence therefore depends on the respect given to the role by the university administration and on the ability of the individual ombuds to resist any attempt to compromise their independence.
A model example
To find out more, I recently met with David Rasch, the campus ombuds of Stanford University, a private university in Palo Alto, California that has some 15,000 students and around 2,000 academic staff.
David describes his role as a confidential resource; he emphasises empowerment and he uses mediation approaches, although he is not a trained mediator. He describes what he does as:
- non-judgmental and supportive listening
- confidential discussion
- coaching people to independently negotiate and resolve problems
- identifying and reframing roots of the problem
- developing strategies for resolutions that fit all parties’ interests and goals
- opening channels of communication
- negotiating, facilitating or mediating between some or all parties
- developing and recommending systemic solutions
Unlike ombuds here in the UK, David (and his campus colleagues throughout the States) does not conduct formal investigations. Interestingly, he can initiate an inquiry if he becomes aware of an issue – a power not shared by most of the ombudsmen in the UK, who can only take on a complaint that has been raised by an individual complainant (or group of complainants). He keeps no records of any discussions, something that helps protect the confidentiality he promises to those who use his service.
With a PhD and a background in psychology and counselling, David manages to gain credibility from both staff and students as well as wider staff at the university.
Using the campus ombuds is voluntary, and he has no targets to meet in terms of reducing the number of formal grievances or legal claims against the university. Staff and students with a problem are encouraged to see him before filing a grievance, and he asks them to say (in a feedback form) whether they would have used a formal process if they had not gone to him. From this he has a sense of the impact of his work.
About half the complaints he sees relate to employment issues from non-academic staff. Another 15% are from academic staff, and these tend to relate to the tenure process, problems with students and departmental politics. Just over one-third are student complaints, and these range across undergraduate and postgraduate students. He reports monthly to the university’s President on demographics and types of cases but not on specific cases.
Campus ombuds have been referred to by critics as a means to “stop students from occupying the dean’s office” and by proponents as a “conscience on campus”. Listening to David, my sense was that the role of campus ombuds is hugely valuable, albeit possibly more so for a university’s administration than for a university’s students or staff. Ombuds can keep grievances and grumbles from escalating into full-blown legal claims, ever a consideration in such a litigious country. But even for those with the grievances or grumbles it offers a low-key way to deal with them without inviting the personal and professional destruction that so often accompanies disputes.
However valuable the role, however, it is one that depends heavily on the integrity and robustness of the individual ombuds, and there appears to be little protection for those post-holders pressured by an unsavoury administration to breach confidence or keep a lid on dissent. I have no doubt that David Rasch at Stanford is solid in both these characteristics. Others might not be, and their appointment and dismissal is at the whim of the administration.
Useful in the UK?
How might this role work here in the UK?
This summer the Department for Business (BIS, which oversees higher education in England and Wales) published its response to its White Paper ‘Students at the heart of the system’ and its subsequent Technical Consultation. Buried within a long document addressing student finance and regulation of higher education is a brief mention of campus ombudsmen. BIS notes that among respondents to its consultation, ‘The idea of campus ombudsmen and regional networks was supported by many but seen as unnecessary or inappropriate by others.’
Not an overwhelming endorsement, then. It will be interesting to see how the issue of campus ombuds is handled by the Office of the Independent Adjudicator for Higher Education (OIA) in its response to its own Pathway 3 Consultation. This consultation was carried out in late 2011 (see www.oiahe.org.uk) after the OIA was tasked by BIS to consult on ways to encourage early dispute resolution. The OIA is expected to publish the results and its response soon. The issue is also the focus of work carried out by the Improving Dispute Resolution Advisory Service (IDRAS), a consultancy body for higher education.
The OIA and IDRAS
For those of you who aren’t familiar with either body, a bit of background. The OIA was established in 2004 and is the independent reviewer of student complaints about higher education institutions in England and Wales. It can only take on complaints once they have been through the university’s internal complaints procedure. Yet recent years have seen a steady increase in complaints, with resulting pressure on its staff to deal with cases more quickly. Meanwhile, complaints appear to be growing more complex.
IDRAS covers both student and staff disputes within universities. It produced, in 2008 and 2009, several reports on the state of play of dispute resolution within universities, including an overview of campus ombudsmen.
The OIA’s Pathway 3 consultation sought views on how best to promote the resolution of complaints at an early, internal stage, including the introduction of a campus ombudsman role. The consultation included a survey of the campus ombuds role in other countries, including Australia and the USA, where the role is well established.
‘Ombudsman’ culture in the UK
Here, the term ‘campus ombuds’ is problematic. We have a professional body, The Ombudsman Association (formerly known as the British and Irish Ombudsman Association, or BIOA), whose members are the various complaint-handling schemes for central and local government, housing and various private sectors, including utility companies, financial services and legal services. The OIA is a full voting ombudsman member, as is the Scottish Public Services Ombudsman, which investigates complaints about higher education in Scotland. This means both schemes meet the Association’s membership criteria – including independence and accountability, as well as the power to investigate complaints and make determinations.
Campus ombuds in this sense would not meet the criteria for full membership of the Ombudsman Association. Furthermore, introducing a campus ombuds role here would risk creating confusion with what is in effect a national ombudsman scheme, the OIA, and put in place yet another hurdle for students to overcome before their complaint can be considered independently.
Mediation, not campus ombuds
In the UK we already have a range of mediation options for student complaints that could be developed in the push for more early dispute resolution, before complaints go to the OIA, or even in conjunction with an OIA investigation. There are a few well-established campus mediation services including Dundee University (see http://www.dundee.ac.uk/academic/edr/), which has been operating since 2009, as well as mediators and mediation providers with expertise in higher education (eg Equalities Mediation Service (www.equalities-mediation.org.uk) and IDRAS).
As a mediator with many years of experience in disability discrimination claims in higher education, I confess to having an interest in seeing more mediation taking place, and earlier, in such cases. I see the damage done to students and universities when complaints are dragged out over many years, limiting the options for resolution.
But my vision is not to steer all student complaints into mediation by default. It isn’t right for every case, or for every party in dispute. It is one of a range of tools that should be available for resolving such complaints, and it sits neatly with the authoritative role and investigative expertise of the OIA and, in Scotland, the Scottish Public Services Ombudsman. I’m not averse to having campus ombuds as an additional tool, but I worry that it will provide another hurdle and will add to the time involved in resolving student complaints. I also worry that it will be expensive for individual universities to establish and maintain an ombuds office. And I worry that, without independence, it won’t be a role trusted by students.
Instead, I’d like to see regional networks of specialised, independent mediators established, with the OIA’s support, which universities can call upon as and when needed, and as early as possible in the life of a dispute.
I look forward to seeing the OIA’s response to its Pathway 3 consultation. I’m hoping it will challenge assumptions about how the concept of campus ombuds will translate here and that it will explore the benefits of having access to independent mediation for student complaints.