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The National Center on Dispute Resolution in Special Education

"Encouraging the use of mediation and other collaborative strategies to resolve disagreements about special
education and early intervention programs."

CADRE: Concept Paper: Alternative Dispute Resolution

by Sam Neustadt

Background/Introduction

California currently serves approximately 638,000 students through special education, up from 553,000 in 1995. During that same period of time, the number of formal dispute resolution activities, including mediation, due process hearings, and compliance complaints has doubled. The resulting expense to districts and the state has been considerable, dollars that could otherwise be applied to instruction. Further, the existing infrastructure for resolving disputes is overwhelmed, such that the timely resolution of disputes, consistent with legal mandate, is increasingly difficult to achieve. With the reauthorization of IDEA in 1997, and the state's response to the reauthorization, the potential for increased dispute activity is considerable as parents and special educators make meaning of the new laws. Clearly, alternative methods of dispute resolution will be necessary to help ensure that disputes are resolved at the local level whenever possible, and in a timely manner consistent with legal timelines.

For the past five years, the California Legislature has authorized CDE Special Education Division, to allocate $100,000 per year to promote ADR statewide. To date, the division has awarded approximately 100 grants to SELPAs across the state. The average grant was $5,000. Based on a recent survey of ADR grant recipients, CDE has identified eight effective ADR programs in the state. Relative to the state's total investment over the past five years, the average cost per functioning programs is $62,500. Given the legal expense associated with due process hearings and complaint investigations, the money is well spent. (SELPA directors report that it can cost between $35-50,000 to successfully defend a due process hearing and can be considerably more if they loose. This is in addition to the state's expense of administering the process, reflected in the current contract with McGeorge.) Still, the relatively small number of functional programs relative to the number of ADR grants made to date, points out the need for a more effective dissemination model. An understanding of program factors that increase the probability of effective implementation and the nature of CDE support for ADR program development must be reevaluated in light of the new ADR survey data.

ADR Survey Results - Common Threads

The ADR survey data was self-reported by SELPA directors, either in writing or by interview. Based on responses from SELPAs who have received an ADR grant, the following SELPAs have been identified with effective programs. Contra Costa, Solano, El Dorado, Riverside, Butte, Placer/Nevada, Sonoma and San Luis Obispo. By far, the most effective program reported was in Contra Costa. Last year, the ADR coordinator facilitator resolved 189 disputes. Due process hearings dropped from 18 in 1996-97 to 11 during 1997-98. While the number of resolved disputes varies significantly across the effective 8, it is clear that all 8 see the value of dedicating staff to this specific purpose. Given the observation that the cost of litigating a single due process hearing is $35 - 50,000, resolving only one such case through ADR financially justifies the state's investment. More importantly, local solutions lead to more expedient service for individuals with disabilities and help to maintain relationships between parents and school district personnel, a positive influence in reducing the number of repeat filings.

Another common thread involves the use of ADR teams to assist in the resolution of disputes. Typically, these teams are regional in nature, with membership composed of people from outside the LEA in dispute. The "effective 8" report the importance of being perceived as being impartial by disputing parties. The "effective 8" also report the importance of having process and content expertise on ADR teams. Impartiality and Expertise = Trust.

These data reflect the use and importance of parent volunteers, and that the quality of volunteers was a key to ADR success. Quality of ADR team participants, both volunteer and professional, is promoted by effective training that includes listening skills, ADR methodology, and state and federal law.

A Model for Success

Although the ADR survey was a limited inquiry of grant recipients, it is clear that there are common elements present in effective programs that may not be consistently present in areas where programs have not developed to date. It is likely that there are other factors common to the "effective 8" that are not evident in the survey results, simply because the survey did not ask the right questions. A deeper conversation with representatives from the "effective 8" could surface other key factors to successful implementation.

It is also clear from a review of grant recipients who do not report effective programs that a one time, $5,000 grant was inadequate support in itself, if ADR implementation (as opposed to mere awareness) was the goal. The data supports the need for a larger, long-term system of support to ensure ADR program implementation. Research on effective implementation emphasizes the need for training on any new innovation to include theory, modeling, guided practice and ongoing sustained support. Clearly, a new model must include comprehensive training that incorporates all of these components.

It is SED's intent to provide new sites with a total of three years of funding in an effort to support new site implementation in a comprehensive manner. The current design calls for one year of planning grant support ($5-7000 range), followed by two years of more substantial funding. Implementation funding will need to be sufficient to support quality training, program advertisement, local awareness activities, participation in mentoring activities including an annual statewide ADR conference, and infrastructure to facilitate local dispute resolution data collection which will be standardized across the state for all ADR sites. (Currently, where any local data is collected, definitions and methodology vary substantially). Standardized data collection will allow for meaningful program evaluation, which will inform future state level efforts. Implementation funding is projected to be in the $18-20,000 per year range. Mentor team funding is intended to support regional and statewide dissemination activities. The mentor teams provide the ongoing, sustained support component for the new sites. Mentor funding is also projected to be in the $18-20,000 per year range.

During the planning year, funds are distributed as grants. During implementation and mentor years, funding is intended to distributed in the form of contracts, since the division intends to stipulate certain deliverables including local dispute resolution data collection and reporting.

The proposed model is designed to grow ADR availability exponentially. After new ADR sites have operated successfully for at least two years, they then become eligible to be mentors for other new sites. As the pool of eligible mentor teams grows, the ability to effectively support more new ADR sites across the state also grows. The need to increase funding, over time, to support increased capacity is anticipated.

Action Plan

December 1998

Convene a meeting of representatives from the existing ADR programs. The purpose of this meeting is to further develop our understanding of common elements of the effective programs and to further develop and refine a long-term strategy for the development of network of ADR programs statewide. This steering committee is envisioned as developing into a statewide ADR advisory council as the initiative grows.

This meeting also provides an opportunity to seek commitment from these folks to provide mentoring/ dissemination support for new programs. Limited funding to support dissemination is currently in place with augmentation being sought. The "effective 8" will also help to refine the RFP/application for LEAs seeking support for ADR program development.

January 1999

Distribute invitations to apply for planning grants to 6 targeted LEAs where both the demonstrated need and capacity for ADR program development exist. Consideration was also given to distributing ADR development geographically. (Targeted LEAs have all expressed a commitment to locally fund a .5 FTE staff person (minimum) for the duration of the implementation funding cycle.) The LEAs need not be limited to SELPAs, but are intended to be larger than an individual school district. County offices or school district consortiums could also be eligible to apply. By targeting areas that have some current volume of formal CDE complaint activity, it is hoped that ADR might, over time, help to diminish the rate of formal complaints and due process cases.

The planning grants will be used to support teams convening for a two day ADR program planning event to be held April 19-20 (described below). Planning teams from the targeted LEAs will convene with mentor teams and consultants from CDE SED to develop draft implementation plans.

March 1999

Award planning and dissemination grants for 1998-99:

Dissemination Grants = 6 grants totaling approximately $56,000

=

Planning Grants = 6 grants totaling approximately $44,000

TOTAL: = $100,000

April 1999

Convene ADR Planning Conference with all grant recipients to assist in the development of comprehensive implementation plans for the targeted new ADR sites. The conference is designed to facilitate planning, and at the same time, build three way partnerships between mentor teams, planning teams, and the CDE consultants who will be attached to these teams. The consultant role will be to facilitate data collection, contract management, and broker CDE SED technical assistance resources as appropriate for the duration of the funding cycle.

May 1999

Targeted teams finalize implementation plans, secure appropriate local approvals, and submit to CDE SED for funding approval by 5/31/99. Mentor plans are also finalized in May with submission dates to CDE SED by 5/31/99 as well.

June 1999

Plans are reviewed for funding approval pending state budget adoption. It is intended that funding be made available as soon as possible thereafter to allow for training activities to take place as soon as possible.

Four Year Budget Model

For more information contact: Sam Neustadt

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