Why Mediation is Vital for SEND Disputes: Insights from Alison Hall

Joining the Hunt ADR Accredited Mediation training as an experienced practitioner within the Special Educational Needs and Disabilities (SEND) sector I was looking forward to learning new skills as well as brushing up on others.  It certainly did that but the unexpected additional benefit was that it gave me a chance to reflect on the role that mediation plays in the SEND world and more importantly how it could be used to improve and possibly resolve some of the challenges that parents, young people and local authorities face in the current system.   

Hunt ADR identifies fifteen “Added Values of Mediation”, reflecting benefits that extend beyond purely coming to agreement. Collectively, these values explain why mediation is often better suited to complex, human disputes than adversarial processes.  Issues within SEND could not be more ‘human’ so with this understanding and context I was keen to identify how mediation can be used to improve discourse around disagreement and enhance communication and relationships in an often emotive and challenging area, as within a SEND context not all added values carry equal weight.

SEND disputes frequently involve vulnerable children or young people, emotionally invested parents or carers, public bodies with statutory duties, and relationships that must continue long after the dispute has concluded. The impact of conflict is therefore not limited to legal or financial outcomes but directly affects a child or young person’s future – their education, wellbeing, and inclusion.

Looking at the fifteen ‘Added Values of Mediation’ I have ranked the top five, in order of importance within a SEND context, and explained why, in my view, these values should be prioritised over others. While all fifteen values remain relevant, this ranking reflects the particular sensitivities, power dynamics, and relational demands inherent in SEND disputes.

Of the fifteen added values identified by Hunt ADR, the most important in a SEND context is voice and being heard – the ability for parties to feel genuinely heard within the process.

Parents and carers of children and young people with SEND often enter dispute resolution feeling that their concerns have been dismissed, minimised, or lost within complex institutional systems. Mediation’s structure, particularly through uninterrupted opening statements and skilled summarising, ensures that parties are given space to articulate not only their positions but also their lived experiences, fears, and priorities.

In a SEND context, this value is closely linked to the child or young person’s voice. Even where the child is not directly present, mediation allows their needs, wishes, and best interests to be articulated in a way that is not constrained by overly strict procedural or evidential rules. This helps prevent the child or young person becoming an abstract issue rather than the central focus of the discussion.

While co-production should be a key element of SEND practice at all times, I have seen this to be lacking in many situations due to the power dynamics in place.  Mediation can be an effective way of allowing co-production to happen and voice to be heard and I would advocate for this to be available at any time of conflict, not just as a step to registering an appeal to the SEN tribunal.  The neutrality and confidentiality aspect of mediation lends itself to families and young people to share their experiences more openly and candidly. 

Voice is ranked first because, without it, other added values cannot meaningfully follow and I believe this is at the heart of all work in this sector.  When working with people’s life outcomes if we are not able to give them a full voice it must be questioned why we are doing it in the first place!

In SEND disputes, preservation and improvement of relationships is of particular importance due to the ongoing nature of the relationships involved.

Unlike many commercial disputes, SEND conflicts rarely end contact between the parties. Parents and carers must continue to engage with schools, local authorities, health services, and other professionals, often over many years. An adversarial outcome may resolve a specific issue but can significantly damage trust, communication, and cooperation.

Mediation’s facilitative approach reduces personalisation and blame, allowing parties to separate individuals from the problem. Through reframing and reality-testing, mediators help participants recognise shared objectives — most notably, supporting the child or young person’s development and wellbeing – even where there is disagreement about how those objectives should be achieved.

Legal challenge can undoubtedly negatively impact relationships between families and the Local Authority. For example, let us consider a legal appeal for a 4-year-old child who has significant lifelong disabilities; disabilities almost certain to require ongoing LA educational and social care support.  On lodging an appeal this relationship suddenly becomes fraught with complex legal directions, meetings with solicitors present and a lengthy wait for issues to be heard and decisions made – a far cry from the collaborative relationship approaches detailed in the Code of Practice.  Perhaps if mediation had been effectively used both parties could have narrowed the issues (even if full agreement could not be reached), provision could have been made in a timelier manner but more importantly provided an opportunity to build trust and foster an environment for co-operation that could be taken forward in the relationship.  A tribunal can lead to a win/lose scenario and a permanent fracture of the working relationship that becomes impossible to repair. 

Another key added value is empowerment and party control, which Hunt ADR describes as parties retaining control over both the process and the outcome.

In SEND disputes, there is often a marked power imbalance between parents or carers and public bodies. Mediation helps address this imbalance by removing decision-making authority from a determinative body and returning it equally to the parties themselves. The mediator facilitates discussion but does not impose solutions, enabling parents and carers to participate constructively rather than defensively.

Empowerment is reinforced by the voluntary nature of mediation and by the parties’ ability to shape outcomes that reflect their priorities and constraints. This sense of ownership can be particularly important for parents or carers who may feel that decisions about their child or young person are routinely made without their meaningful involvement.

Co-production meetings were a common feature in statutory assessment processes a decade ago.  Due to operational constraints and the increase in numbers of assessment these are now far less common, with many assessments being conducted without any collaborative meeting of parties.  In my view this fosters the power imbalance intrinsic in the LA parent/child or young person relationship where the LA remains the decision maker and the child/young person role is merely consultative.   Often mediation is often the first time the local authority representative and family or young person have met in person and come together in good faith to create solutions.  This goes some way to address this power imbalance. 

Hunt ADR highlights flexibility and creativity of outcomes as core added values of mediation. This is especially relevant in SEND disputes, where rigid legal or administrative remedies may not adequately address practical or relational issues.

Mediation allows parties to explore solutions that go beyond statutory minimums or formal orders. These may include agreements about communication methods, review schedules, phased implementation of support, or collaborative working arrangements. Such outcomes may not be available through tribunal or complaints processes but can significantly improve the lived experience of children, young people, and families.

The creative potential of mediation also allows solutions to evolve as understanding deepens, rather than being confined to fixed or adversarial positions.

Mediation within a SEN context can be extremely useful to explore scenarios that would be impossible to achieve with a decision via tribunal.  Some details within an Education Health and Care Plan (EHCP), for example section A, are not under legal jurisdiction so without mediation disputes remain with no resolution.  Section J which deals with direct payments is one such area where a parent or a young person can request a personal budget to make their own arrangements for provision and the decision of the LA cannot be appealed to the tribunal.  To mediate these issues would offer opportunity to understand views and resolve issues to the benefit of all concerned. 

It is key to remember though, while creativity enhances outcomes, it relies on earlier values such as voice and empowerment being established first.

Essential to both mediation and work within the SEND sector is confidentiality and emotional containment. SEND disputes frequently involve sensitive personal information relating to diagnoses, family circumstances, behaviour, and educational provision. Mediation’s confidential and without prejudice framework enables parties to speak openly without fear that their words will later be used against them. This encourages honesty and reduces defensive or positional behaviour.

Confidentiality also allows emotions to be expressed in a safe and structured environment. The mediator’s skills in managing emotional dynamics ensure that feelings are acknowledged while maintaining a constructive process.

Once parties understand the absolute confidentiality of the situation, remembering that Education, Health and Care assessment includes highly personal information including social care issues, parties may be able to speak openly.  This always must be with the understanding that the mediator within any context, but particularly when working within children and families, needs to be aware of their reporting responsibilities around safeguarding children and vulnerable adults.  These vulnerable groups are at the heart of this area of work and this must always be a key consideration for any mediator.  

By reflecting on Hunt ADR fifteen “Added Values of Mediation”, I concluded that mediation demonstrates not only its particular suitability for SEND disputes, it offers a way forward to improve practice not just for legally appealable decisions but other disputes and to bring parties together to support not only agreement, but trust, communication, and the at its heart best interests of the child or young person.