Could Mediation Help?

What’s been said?

Recently we considered one aspect of the Isle of Man’s Department for Education, Sport and Culture’s [DESC] draft of new EHE Procedures. Here we reflect on the matter of mediation which is proposed in the fourth part of the document entitled, “Department responsibilities and outline of procedures.” The possibility of mediation prior to issuing a School Attendance Order [SAO] is raised in 4§8, for instances where the DESC is not confident that a child is receiving a suitable education.

Normally best practice requires that the mediator, who is there not to act as judge but to aid communication, should be independent of either party. The proposed arrangements do not guarantee such independence. The draft document states, “The mediators can be a Department Officer not associated with the case previously, a Member of Tynwald or an independent experienced member of the Home Education community.” There is also much to be said for mediators being trained as well as independent.

Why does this matter?

When properly carried out, mediation can help to resolve a variety of cases where conflict has surfaced. To be successful, not only does the mediator have to possess the necessary skills, but they also need to have the confidence of both disagreeing parties. It is unlikely that a parent who is feeling unduly pressured by a DESC official will feel confident in accepting mediation conducted by one of their colleagues or a member of the island’s parliament. Equally, an officer who has little respect for EHE parents is unlikely to have trust in someone from within that community. Whilst this offer of mediation before the issuing of a SAO may be unique in the British Isles, it has clearly not been carefully thought through.

The HE community is very aware that they often have a better working understanding of the law regarding EHE than do politicians, national civil servants and LA officers. We often recognise badly expressed reasoning more readily than state employees, who can on many occasions seem more focussed on covering their own backs than understanding the law – though in the present blame-culture one can appreciate why they want to do everything “by the book”, as they perceive it. In this instance it seems that those who drafted this document did not give it the careful thought they should have done.

This less than perfect offer of mediation does however raise an interesting point. In most cases the only place where an LA’s decision to issue a SAO can be challenged is in court. That can be both stressful and expensive for families, especially when LA staff are ill-informed about the law. Recently we asked if the lessons of Windrush would be applied to HE? Since then the government has been criticised for its “hostile environment” policies towards migrants. Home educators have also witnessed a dramatic increase in hostility towards them in the corridors of power since Ed Balls and Graham Badman used the excuse of Khyra Ishaq’s death to label HE as a “safeguarding” matter. It has to be asked therefore whether a properly established mediation procedure could help to protect HE parents and children from ill-informed officials interfering in their lives without cause?

What can I do?

Parents on the Isle of Man are hopefully already seeking to refine these draft proposals, though it is unclear what the arrangements are for them to do so.

In other places, home educators may wish to consider whether proposing an opportunity for mediation should be included in any guidelines for EHE at both national and local levels. What would be the pros and cons of including this? Would parents have confidence in such a provision? Should professional mediators be mandatory? We would all like to avoid the need for mediation, but is it a better option than going to court?