Sunday, January 22, 2012

Special Education Mediation

The Individuals with Disabilities Education Act (IDEA) requires that state departments of education provide a process through which parents of children with disabilities have the opportunity to request a mediation conference to settle disagreements the assistance of trained neutral mediator, between the parent, school district, and area education agency. [20 U.S.C. 1415(e); 34 CFR 300.506] More specifically, the IDEA requires state departments to maintain a list of qualified mediators who are knowledgeable about special education law and trained in mediation techniques, compensate the mediators so that the process is free to both parents and school districts, and establish and implement procedures for facilitating mediation.

Unlike due process hearings, the law requires that mediation be voluntary on both sides. This means that if a school district opposes a parent’s request for mediation, a mediation will not be held. However, school districts and AEAs often prefer mediation to due process since there is little down-side to them other than their attorney fee expenses, which in some states, are covered by the school district’s and AEA’s insurer.

Other than the prospect of attorney fees, there is little down-side for parents. Before thinking about filing a request and going it alone at a mediation, parents who think they cannot afford an attorney’s services should first speak with an attorney who represents parents in special education matters, and inquire how the attorney charges in regard to mediation proceedings.

Mediation does not delay a parent’s right to go forward in filing a due process complaint, if that is what the parent chooses. Filing a request for and engaging in mediation also does not delay the expiration of the two year statute of limitations on filing due process. After the mediation has been filed, unless the parents, school district and area education agency agree otherwise, the child involved in the mediation remains in his or her present educational placement pending the outcome of the mediation.

It is important to note that what people say during mediation is confidential, and may not be used as evidence in a later due process hearing or civil court proceeding. If the parties come to a verbal agreement In the course of mediation, then that agreement must be put in writing and signed the parents and a representative of the school district. The written agreement is enforceable in court, which is important because neither the parent nor school district are required to go through a due process hearing in order to enforce its terms.

Parents have the right to file mediation request to resolve special education disputes with their child’s school district and the area education agency pertaining to matters including the following:

Eligibility for special education services
Educational placement
Implementation of the IEP
Need for more/different special education and/or related services
Compensatory services
Outcome of a manifestation determination review
Provision of free, appropriate public education.

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