Dispute resolution in additional and special educational needs: local authority perspectives

Abstract

The UK Government is keen to encourage the use of mediation, rather than court or tribunal, as the best means of resolving disputes between citizen and state on the grounds that legal proceedings are costly, lengthy and stressful. The policy of proportionate dispute resolution appears to be particularly applicable to the field of special educational needs (SEN), where both mediation and tribunal are available as dispute resolution mechanisms. However, evidence suggests that very little use has been made of mediation in either England or Scotland. In order to understand this phenomenon, this paper begins with investigating the dominant policy frameworks in SEN (England) and additional support needs (ASN; Scotland). Subsequently, the attitudes of English and Scottish local authority (LA) officers are explored. It is argued that both countries now have an eclectic mix of policy frameworks in play, including the traditional models of bureaucracy and professionalism, and the more recent models of managerialism, consumerism and legality. In Scotland, professionalism and bureaucracy continue to dominate, and this is associated with more restricted access to and less use of all forms of dispute resolution, in particular the tribunal

“The impact of mediation on resolution of disagreements around special educational needs: Effectiveness and cost effectiveness”

“…To our knowledge, there have been no previous published studies of the cost-effectiveness of SEN mediation. Previous studies have provided some information about the forms of commissioning of SEN mediation services by LAs (Riddell et al 2010) and of the fact that parents incur direct and indirect costs in appealing to the Tribunal (Runswick-Cole 2007) but we have found no previous studies that detailed these costs in monetary form, nor included them in a comprehensive assessment of cost-effectiveness of SEN mediation. Riddell et al (2010) also noted that some LA respondents, in open comments added to survey responses, had reported a perception that mediation did not always prevent an appeal and was viewed, therefore, as an additional cost rather than a cost-effective approach.…”

“…The Code of Practice 2001 emphasised the importance of independence, which might be through LA PPSs or external mediation providers (Department for Education and Skills 2001). However, Riddell et al (2010) found that although 16 independent mediation services had been commissioned to provide SEN mediation, the take-up of mediation was very limited, with 93% of LAs in England reporting no more than two mediations in 2007/08 and only seven of the 55 LAs in their survey reporting an increase in the number of mediations over the previous three years.…”

“…In Scotland, where mediation was relatively new at the time of their research, Riddell et al (2010) found that, in 2007/07, 18% of the 27 Scottish education authorities had had no take up; most (56%) had had 5 or fewer cases, and only one authority (4%) had had more than 10 parents take up SEN mediation. Based on questionnaires returned by 182 parents of children with additional support needs (a broader concept than SEN in England) in 2008, Weedon and Riddell (2009) found that 14% (20 of 139) of those with experience of a disagreement had taken up mediation provided by their LA compared to 60% who had taken up 'informal negotiation/mediation' at school level.…”

“…That is: 10 cases did not require a Tribunal hearing, 4% of the original 281. In Scotland, to date no data have been reported on the effectiveness of SEN mediation, although Riddell et al (2010) report that 52% of education authority officers in their study judged that mediation "resolved disputes quickly" (p65).…”

Changing legislation and its effects on inclusive and special education: Scotland

“…Parents’ rights in Scotland were boosted by the institution of new forms of dispute resolution (the Additional Support Needs Tribunals for Scotland, independent adjudication and independent mediation). Research conducted at the time (Riddell & Weedon, , ; Riddell, Harris, Smith & Weedon, ; Riddell, Stead, Weedon & Wright, ; Weedon & Riddell, ) showed that local authorities vigorously opposed the establishment of the additional support needs tribunal system in Scotland on the grounds that the concept was ‘borrowed’ from the English system and was at variance with the principles of professionalism and consensual decision making which characterised Scottish education. However, the Scottish tribunals were used much less frequently than the English equivalent (by a factor of ten).…”