Tuesday, April 16, 2013

Mediation and Special Education Dispute Resolution

"I’m calling to ask you about whether there is anything I can do about . . ."

Most of the parents who call about special education matters tell me that they’ve talked with their child’s school district and IEP team, and remain in disagreement in regard to one or more of the following:

1. The school district says my child isn’t eligible for special education.

2. The IEP team doesn’t think my child needs more or different special education and related services.

3. The school isn’t providing the assistance or services contained in my child’s current IEP. . . .

4. The IEP team wants to move my child to a different classroom.

5. The IEP team changed my child’s IEP in a manner that I don’t think is appropriate. . . .

6. The school won’t allow my child to participate in . . .

The good news is that many times there is something the parent can do, and it can often be done through the process of mediation.

When Congress enacted the Individuals with Disabilities Education Act (IDEA) it recognized that sometimes parents and school districts would disagree about the special education instruction, services and placements needed by each unique child in order to receive a free and appropriate public education (FAPE). As a result, the IDEA requires that each state department of education (DOE) have dispute resolution procedures, including special education mediation. (20 U.S.C. 1415(e); 34 CFR 300.506).

A special education mediation is a voluntary and confidential meeting that is facilitated at the DOE’s expense by a trained, impartial mediator. Discussions that occur during the special education mediation conference must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings. However, the parties may conclude the mediation by placing written statements of their agreements into a formal mediation agreement that becomes legally enforceable after both parties have signed the document.

When a parent (or the parent’s attorney) files a request for mediation with the state DOE, the DOE and a mediator schedule a time, place and date for the mediation. Mediators, unlike administrative law judges or hearing officers in due process hearings, are not decision-makers. They don’t judge, give opinions, or take sides. Instead, they set out the structure and rules of the mediation, and help to keep it on track. One of Iowa’s experienced mediators always admonishes the parties to "be hard on the problems, and not on each other."

In 2010, CADRE, the National Center on Appropriate Dispute Resolution in Special Education, published the results of a six-year study that was performed in order to identify effective state special education dispute resolution systems and the components of those systems that contributed to their effectiveness. The states of Iowa, Oklahoma, Pennsylvania and Wisconsin were identified as having the most effective systems, and CADRE developed profiles of their procedures for use as models for other states. During the six-year period of CADRE’s study, Iowa, a state which incorporated mediation procedures into its state special education regulations in 1995, consistently had the lowest combined rates of written state complaint and due process complaint filings among all states. 

As an attorney who represents parents in a number of special education mediations each year, it has been my experience that a substantial majority of parent-school district disputes can be resolved by mediation in manner that is satisfactory to all the parties (parent, school district and area education agency).  I believe that Iowa's procedures and the preparation of its mediators are very important to the success of its system in resolving disputes that would otherwise have gone to due process.  However, experience has also demonstrated that no matter how effective the state's procedures or the quality of its mediators, mediation as a dispute resolution tool breaks down quickly when a school district is represented by legal counsel with a limited grasp of special education and special education law, who does not approach the mediation table as a problem-solver, but rather as defense counsel. Under those conditions, even "no-brainer" disputes can end up in due process litigation.  Perhaps a future CADRE study will find that school districts represented by such attorneys have higher rates of due process hearings.


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