EHCP mediation: what it is, and whether you have to do it

What SEND mediation is, and what it is not

SEND mediation is a meeting between you and the council, run by an independent mediator, to try to settle a disagreement about an EHC decision without going to the Tribunal. The right to it comes from sections 53 and 54 of the Children and Families Act 2014, and the SEND Code of Practice covers it in chapter 11, Resolving disagreements. It is voluntary, it is free to you, and using it does not affect your right to appeal.

It helps to be clear about what it is not, because councils sometimes let the confusion stand.

• It is not a hearing. Nobody gives evidence and nobody rules on who is right. The mediator manages the conversation and does not take sides.
• It is not compulsory. The law never requires you to sit in the room. What most appeals require is a certificate, and you can get one by declining mediation (more on that below).
• It is not a filter the council controls. The mediation adviser is independent of the council, and if the council fails to arrange a mediation you asked for, your certificate must be issued anyway (SEND Regulations 2014, reg 39(2) to (3)).
• It is not for missed deadlines. Mediation belongs to appealable decisions: refusal to assess, refusal to issue, the contents of a plan, and so on. If the problem is that the council has simply gone silent past a statutory deadline, there is no decision to mediate about, and the route is the escalation ladder instead.

Whenever the council makes an appealable decision, or issues, amends or replaces a plan, its letter must tell you about mediation: your right to it, the certificate requirement, the adviser's contact details and the timescales (Children and Families Act 2014, s.52; SEND Regulations 2014, reg 32). That letter is where you find the adviser's phone number. If it is missing, the letter is defective, and it is worth saying so in writing.

Do you have to do mediation before the Tribunal?

No, and this is the single most misunderstood point in the whole process. Before most appeals you must obtain a mediation certificate, but a certificate is not proof that you mediated. It is proof that you contacted a mediation adviser and made an informed choice. There are two kinds, and they are legally equal.

• A certificate confirming you were given information about mediation and chose not to take part (Children and Families Act 2014, s.55(4)).
• A certificate confirming you took part in mediation (s.55(5)).

Either one unlocks the Tribunal (s.55(3)). Declining mediation carries no penalty and is never held against you at the hearing.

There is also one clean exemption. If your appeal concerns only the school or institution named in Section I, the type of school or institution named, or the fact that no school is named, you need no certificate at all (s.55(2)). You can lodge a placement only appeal straight away. The moment your appeal also touches Section B or Section F, the exemption falls away and you need a certificate for it, so most parents appealing placement alongside provision still go through the certificate step.

The mediation certificate: how you get one

The path runs through the mediation adviser, whose details are in the council's decision letter. From there it splits.

1. Contact the mediation adviser within two months of the date the decision notice was sent (SEND Regulations 2014, reg 33). This is your deadline, the only one in this process that belongs to you, and it matters: an adviser contacted after two months cannot issue a certificate (reg 34(2)), and you would then have to ask the Tribunal for permission to appeal without one (reg 34(3)).
2. If you tell the adviser you do not want mediation, the certificate must be issued within three working days (reg 34(1)). You can then appeal immediately.
3. If you tell the council you want mediation, it must arrange the mediation within 30 days (regs 35(3) to (4); the health commissioning body arranges it where the issue is health only, reg 36(2)). You must get at least five working days' notice of the date (reg 37(2)).
4. After the mediation concludes, the certificate must be issued within three working days (reg 39(1)), whether or not anything was agreed.
5. If the council fails to arrange mediation within the 30 days, mediation is treated as having taken place, and the adviser must issue the certificate within three working days of being told (reg 39(2) to (3)).

Notice what that design means: the certificate can never be held hostage. Whichever branch you take, and whatever the council does or fails to do, a certificate must reach you on a fixed clock.

Case Manager tracks both clocks and has the mediation request and the refusal challenge letter ready with your dates in. Sign up for Case Manager

Every mediation deadline in one table

Here is the whole sequence with the regulation on each line, so you can quote it. Only the first row belongs to you.

The last row is the one to pin down. Mediation does not eat your appeal window: if the certificate is issued late in the two months, or after them, you get a fresh month from the certificate date. Say the refusal letter was sent on 1 March. The ordinary deadline is 1 May. If mediation happens in late April and your certificate is dated 28 April, your deadline moves to 28 May. The free deadline checker works both dates out from your letters and tells you which one applies.

What happens at mediation, and who attends

The meeting itself is usually a few hours, in person or increasingly by video. An independent mediator opens it, sets ground rules, and gives each side time to explain its position. There is no panel, no oath and no judgment. The aim is a written agreement on as much as possible, and a clear record of what remains disagreed.

You attend, and the council sends at least one officer. The regulations deal with who takes part at reg 38 and with your reasonable expenses, such as travel, at reg 41, so cost should never be the reason you stay away. You do not need a lawyer, and most parents come without one. You can bring someone for support, and your local SENDIASS service or IPSEA can help you prepare.

Two practical points make more difference than anything in the regulations.

• Ask in advance who the council is sending, and whether that person can actually agree changes on the day. A mediation where the officer must "take it back to panel" settles nothing. Put the question in writing before the date.
• Bring a short written list of what you want: the specific decision reversed, the specific wording added to Section F, the specific assessment carried out. Mediations drift without one, and the agreement is only as good as what gets written down.

Is a mediation agreement binding?

Yes on the council, no on you, and that asymmetry is worth understanding because it removes most of the risk of taking part.

If agreement is reached on a matter you could have appealed, the council must carry it out within the same timescales that would apply if the Tribunal had ordered it (SEND Regulations 2014, reg 42(2), applying the reg 44 table). So an agreement to carry out an assessment, or to amend the provision in the plan, comes with a statutory clock attached, not a vague promise. On matters outside the Tribunal's reach, the council must do the agreed thing within two weeks (reg 42(3)).

You, on the other hand, give nothing up. Anything not resolved at mediation can still go to appeal within the r.20(1)(c) time limit, nothing said in the room is a concession, and taking part is never held against you. If the council later fails to honour the agreement, you are back to enforcement, and the escalation guide covers the complaint and Ombudsman route for exactly that.

When mediation is worth trying

Mediation earns its place when there is genuinely something to talk about. It tends to be worth a few weeks when:

• The gap is narrow. You broadly accept the plan but need Section F tightened, hours specified, or a therapy added. A council can concede wording in a room far more easily than it can concede a whole appeal.
• New evidence has arrived since the decision. A fresh diagnosis or a new report changes the picture, and mediation is the fastest lawful way to put it in front of someone from the council.
• The decision looks like a mistake rather than a position. Refusals that misstate the legal test, or plans that ignore advice the council itself commissioned, sometimes collapse the moment they are examined out loud.
• You want the relationship to survive. The plan will be reviewed every year for the rest of your child's education. A settled dispute costs less goodwill than a fought one, on both sides.
• The appeal clock is comfortable. Because the certificate can restart a one month window (HESC Rules, r.20(1)(c)), trying mediation rarely costs you the appeal. Check your own dates before relying on that.

If mediation works, you may have solved in six weeks what an appeal solves in six months. If it fails, you have lost little: your certificate arrives within three working days and the appeal proceeds with a clearer view of the council's case.

When to go straight to appeal

Sometimes the honest advice is to take the certificate and lodge the appeal. Consider skipping mediation when:

• The appeal is placement only. No certificate is needed at all (Children and Families Act 2014, s.55(2)), so the step adds nothing but time.
• The council has already dug in. If it has restated the same refusal twice in writing, a mediator cannot make it move. Between 95% and 99% of SEND Tribunal appeals that reach a decision go the parent's way, so a firm council position is often weaker than it looks. The success rates guide sets out those numbers and where they come from.
• Time is the enemy. A phase transfer in September, a child out of school now. Mediation adds weeks even when the council cooperates, and an appeal can be lodged the day your certificate arrives.
• The dispute is about the legal test, not the facts. Whether a refusal to assess applied the low "may have SEN, may need a plan" threshold correctly is a question a Tribunal answers and a mediator cannot.

Skipping the meeting still means making the phone call. Contact the adviser inside the two months (reg 33), decline mediation, and your certificate arrives within three working days (reg 34(1)). Then move straight to the appeal itself: how to appeal to the SEND Tribunal walks through the form and the evidence, and if the decision you are appealing was a refusal to assess or to issue a plan, the refusal guide covers what to gather while you wait.

One caution either way: this page is legal information, not legal advice. For advice on your own case, IPSEA and your local SENDIASS service are free, independent and used to exactly this decision.