|
Considering Mediation for Special Education
Disputes: A School Administrator's Perspective
by Nissan B. Bar-Lev, Sam Neustadt, and Marshall Peter
For more
information about Special Education Mediation visit
http://www.directionservice.org/cadre.
For more articles on disabilities and special ed visit
www.bridges4kids.org.
In 1997, when Congress reauthorized the Individuals with
Disabilities Education Act (IDEA ‘97), they included the
requirement that states make mediation available whenever a
due process hearing has been requested. Congress recognized
that in states where mediation was available, "parents and
schools have resolved their differences amicably, making
decisions with the child’s best interest in mind."
While the State Education Agency is responsible for providing
mediation services, the process ultimately depends on the
participation of administrators and parents in order to be
successful. This paper describes the advantages and
disadvantages of mediation from an administrator’s perspective
in order to help other administrators make an informed
decision about whether it is in the best interest of their
school district, and ultimately the students they serve, for
them to participate.
What Is Mediation?
Mediation is a process of facilitated negotiation. At the
heart of this process is the role of the mediator, a trained
impartial facilitator, who assists the school staff and the
parents of a child with disabilities in resolving their
dispute in an informal setting. The mediator facilitates the
discussions, encourages the participants to identify and
clarify areas of agreement and disagreement, and helps them to
generate and evaluate options for resolution that will be
mutually agreeable and that will incorporate their interests.
With the assistance of the mediator, the school staff and
parents integrate these options into a well-specified and
workable solution that is then written into an agreement. When
successful, mediation can avert a due process hearing or other
more adversarial procedures.
Mediation Under IDEA ’97
Mediation that is offered when a due process hearing has also
been requested must meet certain requirements under IDEA ’97.
The regulations at 34 C.F.R. §300.506 include the following:
Participation is voluntary on the part of the parties.
Mediation cannot be used to deny or delay the right to a due
process hearing or any other rights afforded under Part B of
the Act.
Mediation is conducted by a qualified and impartial mediator
who is trained in effective mediation techniques and is
knowledgeable in laws and regulations relating to the
provision of special education and related services.
Mediators are selected on a random basis or by mutual
agreement of the parties.
Individuals who serve as mediators may not be an employee of
an LEA or SEA that is providing direct services to the child
who is the subject of the mediation process and must not have
a personal or professional conflict of interest.
The state shall bear the cost of the mediation process.
Mediations must be scheduled in a timely manner and held in a
convenient location.
Agreements reached by the parties must be set forth in a
written mediation agreement.
Discussions that occur during the mediation process must be
confidential and may not be used as evidence in any subsequent
due process hearings or civil proceedings.
A public agency may establish procedures to require parents
who elect not to use the mediation process to meet, at a time
and location convenient to the parents, with a disinterested
party who would explain the benefits of the mediation process,
and encourage the parents to use the process.
Note: The section above on Mediation Under IDEA ‘97 summarizes
the mediation requirements found in IDEA ’97. The reader is
encouraged to contact his or her State Department of Education
for information on the full requirements or to visit the CADRE
web site at:
http://www.directionservice.org/cadre/indexidea.cfm.
The information in this paper was not meant to further
interpret these regulations but rather to discuss the
mediation process in general and show how it may facilitate
the collaborative resolution of disagreements between parents
and schools.
Benefits of Mediation
There are a number of reasons for local school administrators
to participate in mediation. The advantages of mediation
include the following:
Mediation Is Less Expensive than Due Process. While costs vary
from state-to-state, costs for mediation rarely exceed $1500.
A typical due process hearing is far more expensive. Many of
the legal costs associated with due process need not apply to
mediation. For example, attorneys are not always necessary
when mediating. Even when attorneys are involved, mediation is
still less expensive than a due process hearing since the
preparation of an issue statement, evidence packets, and
witness lists are not necessary. If a due process hearing has
been requested, the state pays for the mediator and there is
no cost to the local agency. Many states provide free
mediation even when there hasn’t been a request for a due
process hearing.
Mediation Is an Expeditious Process. Unlike due process
hearings, which may not occur for months after the initial
filing, the mediation process is often completed within 20 to
30 days. Mediations usually only require one or two sessions,
particularly if they are convened in the early stages of a
dispute before the parties’ positions have hardened and anger
has grown. Mediations are typically scheduled within several
weeks of filing, and the vast majority of disputes are
resolved with only one day devoted to mediation.
Mediation Improves Relationships. Special education disputes
occur in the context of relationships that will continue into
the future. A mediated settlement that addresses both school
and family interests often preserves a working relationship in
ways that would not be possible in a win/lose decision-making
procedure. Because mediation builds on everyone’s shared
interest in the student being successful, relationships
between parents and school personnel are often reconciled and
communication is enhanced. Ultimately, parents and educators
working well together leads to positive educational outcomes
for students.
Mediation Is Less Adversarial. Mediation minimizes the time
spent focused on establishing blame and finding fault.
Instead, mediation looks into the future to identify the
child’s needs and how they can best be met. In due process
hearings, a third party neutral imposes an outcome on the
participants that one or both may be unhappy with. In
mediation, agreements are developed by the participants
themselves - the two parties - school staff and parents craft a
collaborative resolution with the assistance of the mediator.
Mediation Is Confidential. The two parties can openly discuss
any issue knowing that it will remain confidential and not be
admissible in any subsequent legal proceedings. Congress
realized the sensitive nature of these disputes when it
mandated that the discussions that occur during mediation be
kept confidential.
The Mediation Process Is Shaped by Parents and Educators. The
parties determine who the participants are, agree on who the
mediator will be, decide where and when the mediation sessions
will take place, and identify what will be included in any
final agreement. The mediator does not impose a decision, and
the parties are not required to reach an agreement. Either
party may terminate the mediation process at any time.
Mediation empowers the two parties and acknowledges their
ability to arrive at a decision that reflects the best
interests of the child. There are no losers in the mediation
process as both parties contribute to the creation of any
agreements that are reached.
Mediation Encourages Creative Solutions. Because due process
hearings have a narrow focus related to issues of law, hearing
officer decisions are necessarily limited. Mediation is much
more flexible and allows the two parties to "step outside the
legal box" and develop new options that are mutually
beneficial. Discussions in mediation may focus on issues of
trust, respect and communication that would not typically be
addressed in a due process hearing.
Concerns About Mediation
CADRE surveyed state agencies to identify some of the reasons
districts may decline to mediate special education disputes.
Some of the concerns that emerged are addressed below:
The Belief that Mediation Leads to Due Process Hearings.
Mediation does not lead to due process hearings, but rather
typically occurs as a result of a due process request. In
fact, mediation can be an effective means of averting due
process hearings. Whether due to formal mediation or
pre-hearing settlements, very few disputes ever actually get
to a due process hearing. In California, for example,
mediators were involved in over 95% of all due process filings
in 2000. Of the 2,200 due process filings only 82 decisions
were published. The balance represents cases that were
mediated or otherwise settled prior to hearing.
The Concern that Mediated Agreements Will Not Be Implemented.
Participants in mediation have ownership of any agreements
that come from having participated in the mediation process,
leading to high rates of compliance. In the instances that a
participant does not follow through with an agreement, a
mediation session can be convened to explore why
implementation was problematic and to identify alternative
arrangements. Sometimes arrangements for a follow-up meeting
may be included in the initial agreement.
The Perception that Mediation Will Not Be Useful. The authors
believe that there is always plenty about which to mediate.
While agreements may not always be reached, participants in
mediation almost always report that the time they devoted to
mediation was well spent. Resolving disagreements without
litigation means that considerable effort and expense can be
avoided. Parties maintain control over both process and
outcome and any liability for attorneys’ fees can be avoided
or reduced. In cases where the issues cannot be completely
resolved, mediation can still be valuable in developing
stipulations on facts, chronology, and certain issues, which
can streamline the eventual hearing.
Sometimes a Due Process Hearing Is the Appropriate Method to
Resolve a Special Education Dispute. Mediation is a process
that depends in large part on the good will of the parties in
order to succeed. If reasonable discussion is not possible,
mediation may not be the answer. It must also be acknowledged
that sometimes, reasonable people may truly care about a
child’s needs yet disagree about how to meet those needs, and
may require the definitive resolution of a hearing decision.
Even in these cases, mediation can provide significant
benefits prior to a hearing.
!
Nissan B. Bar-Lev is the Director of Special Education for
Cooperative Education Service Agency 7 in Green Bay,
Wisconsin, a consortium of 37 school districts. He is
President of the Wisconsin Council of Administrators of
Special Services. Nissan frequently partners with the director
of Wisconsin’s parent training and information center to
deliver training on collaboration and conflict prevention.
!
Sam Neustadt is the Assistant Superintendent for the Solano
County Special Education Local Planning Area in Sacramento,
California. He is a frequent presenter and trainer in
alternative dispute resolution. Prior to his appointment in
Solano County, Sam served as an administrator for the
California Department of Education, where he developed and
managed the Procedural Safeguards Referral Service and the
Complaints Management and Mediation Unit.
!
Marshall Peter is the Director of CADRE, the Consortium for
Appropriate Dispute Resolution in Special Education, and the
Executive Director of Direction Service, a multi-program
family support agency in Eugene, Oregon.
This document was developed by CADRE, a project of Direction
Service pursuant to Cooperative Agreement CFDA H326D98002 with
the Office of Special Education Programs, United States
Department of Education. The opinions expressed herein do not
necessarily reflect the position or policy of the United
States Department of Education.
The text of this document is in the public domain and may be
reproduced in its entirety or portions thereof for
noncommercial use without prior permission if the authors and
their organizations are cited. Upon request, this publication
will be made available in alternate formats.
| 