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									Item No 5 (1) ADDITIONAL SUPPORT FOR LEARNING ACT - MEDIATION Purpose 1. The purpose of this report is to seek a view from Convenors on whether or not there is a need for a national independent mediation service stemming from the enactment of the Additional Support for Learning Act.

Recommendations 2. Convenors are asked to note the content of this report and to contribute their views to help inform COSLA‟s approach on this issue.

Detail 3. The Additional Support for Learning Scotland Act 2004 places a duty on local authorities to provide independent mediation services to avoid or resolve disagreements that arise between the local authority and parents and their children. The Act states that local authorities should make such arrangements as they consider appropriate for the provision of mediation. This could mean that they use their existing mediation service, procure a service from an independent provider(s) or indeed group together with other local authorities to provide one service for an area. There is total local flexibility in how councils choose to provide these services so long as they comply with the legislation. The matter has been considered by COSLA‟s Additional Support for Learning Act Implementation Group and a note of issues identified by that group is appended. The establishment of an independent, national mediation service was raised by COSLA during its Parliamentary evidence earlier this year, but it is understood that the Minister does not favour the establishment of a national mediation service by the Executive.


5. 6.

Conclusion 7. The issue of a national, independent mediation service is clearly one that requires to be debated by Conveners. Would such a service better meet the needs of parents and children with additional support needs? Would conveners prefer the flexibility offered by local arrangements? Could the cost be justified? Would the expectation be that the Executive would establish the service? Given that the Act has yet to be implemented and the associated Guidance issued for consultation, would it be premature to seek a national service in the absence of actual experience of the Act in operation? Sylvia Murray – Policy Manager 0131 474 9251



EDUCATION (ADDITIONAL SUPPORT FOR LEARNING) (SCOTLAND) ACT 2004 MEDIATION SERVICE Context It is understood the Minister is of a view that there will be no national mediation service and that EAs will require to organise their own approach, perhaps in conjunction with others. This serves to highlight an important role that COSLA could play in relation to drawing this together within a national framework for EAs. It would be of value if the Code of Practice on the Act provided some guidance in relation to mediation. Some matters that we may require to have a view on as part of this process are detailed below. Duty on the Education Authority Section 15(1) places a duty on the EA to:make such arrangements as they consider appropriate for the provision of independent mediation services for the purposes of seeking to avoid or resolve disagreements between the authority The onus rests with the EA to have ready for the implementation of the Act, among other things, an independent mediation service. The Act is not definitive in this regard an d EAs may use one provider or make use of a variety of approved providers. Some may be individuals and others from organizations. In the process of deciding, EAs will require having regard to a number of matters. In advance of the Act‟s implementation there may be increasing pressure form parents to require EAs to comply with the spirit of the Act and already in at least one authority there have been requests for the use of independent mediation. The reference to avoid or resolve disagreements indicates that this could be a very comprehensive service covering a variety of issues. Education Authority Policy Framework EAs will require to consider carefully the use of mediation. EAs will be caught between seeking to resolve matters at source and thus avoid the need for mediation too early in the process, yet, when there is a risk that a matter will proceed to an ASN Tribunal, wishing to then highlight the use of mediation. As a first stage EAs will require to develop a policy framework within which mediation procedures etc. will operate. In addition, there would be a value in referring in the Code of Practice to mediation and how it might be developed / utilised etc. Context of Resolving Difficulties There is considerable work undertaken at school and authority level by teachers, educational psychologists, advisory staff etc. and it would be important in a policy framework, that the mediation offered was set in the context of being alongside this, rather than this considerable work, being put aside because it would be easier to have a matter solved by mediation. The context of mediation therefore should be within the terms of the „listening school and listening authority‟. It would assist if that message was conveyed in the Code of Practice and that EAs may therefore require to invest in training to improve existing conflict resolution at classroom

and school level to help avoid any requirement to undertake alternative approaches such as mediation. Mediation at which Point? Although section 15 of the 2004 Act makes reference to “resolving disputes between the authority and parents etc.”, the school would be stepping into the shoes of the authority and thus, mediation could be a matter that parents may wish at school level. Again the policy framework would outline how mediation will be utilised and this could include making a decision about ring-fencing it as a matter at authority level, after other avenues had been considered etc. Advocates/ Supporters Section 14 of the 2004 Act provides for the inclusion of supporters and advocates “at any discussion”. Again the use of this would require to be considered alongside mediation. For example the creative use of supporters and advocates may avoid the need for mediation and dispute resolution and again the onus would be on EAs to build this into their policy.

Mediation for All? The challenge of mediation is that it places a significant emphasis upon verbal fluency and reasoning and there may be many parents, either as a consequence of not speaking English or having a learning disability or general anxieties, who may not feel able to participate. EAs will have obligations to parents under the Disability Discrimination Act 1995 (as amended) to make “reasonable adjustments” in the services they provide including mediation. In addition to any such adjustments, the use of the supporter or advocate could be to undertake the mediation process for the parent. The mediation arrangements would, in accordance with the broad parent group, require thus to be flexible in their application. Staff Involved Among the practical considerations for each EA would the degree to which staff directly involved in an issue e.g. educational psychologist, support for learning staff etc., would be involved in any face to face mediation or whether it would be organised by an EA person. There would obviously be serious time constraints by whatever approach were undertaken and some EA staff may feel that they have been so closely involved that it would cloud their approach and prevent their full participation. Independence The inclusion of section 15(2) is helpful in that if affords the EA an opportunity to utilise resources within the Council, outwith education service, with experience of mediation. This could include a mediation service that works for example currently within the housing department. The requirement is not knowledge of ASN, but knowledge first of the process and operation of mediation. COSLA could have a role in establishing criteria for use by EAs in deciding to make use of a mediator. The Scottish Mediation Network has recently published a code for those providing mediation and this provides a useful guide to the standard requirements of mediators. The onus is on EAs to make provision that they consider appropriate for independent services. There would however be parents who may wish to suggest their own mediator. Independence must cut both ways. It would be important that where an organisation had advised a parent they would be prevented from mediating later on that parent‟s behalf. Again this is a matter

that could be referred to in the Code of Practice and certainly COSLA / EAs would wish to clarify this in guidance. Participation by Other Agencies What would be the implication where the issue considered in mediation arose from a failure for example of another agency, such as the Health Board to undertake some matter? Would this still be covered by mediation, or would mediation only arise in relation to education directly? Participation by the Child/ Pupil EAs require to have regard to the views of the child [Standards in Scotland‟s Schools etc.2000 Act s 2(2)] and it may be that this raises issues with regard to either participating in the process of the mediation if they so wished, or being made aware of any outcome. Belonging to that Area The Act requires that the mediation service is for parents and young people ”belonging to that area”. This will mean that the service would be available to parents of pupils not schooled in the area of the Council and this would carry implications. Recommendation 1. Arising from all of the above matters and more is the considerable cost implications for EAs to establish and fund an independent service. It would assist if COSLA gave some thought to this matter well in advance of the implementation of the Act to allow for projections of possible costs etc. 2. In addition, it would be of value for COSLA to commence discussions with EAs as to thoughts, plans, current practice etc., with the view to providing future guidance on this.



(1) Every education authority must make such arrangements as they consider appropriate for the provision of independent mediation services for the purposes of seeking to avoid or resolve disagreements between the authority and(a) parents of children belonging to the area of the authority, (b) young persons belonging to that area, or (c) in relation to any such young persons who lack capacity to express a view or make a decision for those purposes, their parents, concerning the exercise by the authority of their functions under this Act in relation to such children or young persons. (2) Mediation services are independent for the purposes of subsection (1) if the person providing the services has no involvement in the exercise by or on behalf of the authority of their functions under this Act (apart from this section). (3) Arrangements made in pursuance of subsection (1)(a) must not require any parent or young person(i) to refer any disagreement with the authority to the mediation services provided in accordance with the arrangements, or (ii) to pay any fee or charge for the provision of the mediation services, and (b) do not affect the entitlement of any parent or young person to refer any matter to a Tribunal. (4) In this section and section 16, references to the exercise by an education authority of any function include references to a failure to exercise the function.


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