CADRE Resources
I. INTRODUCTION.
A. The use of alternative dispute resolutions (ADR), notably mediation, has been widespread in many areas for years,
e.g., employment, community disputes, divorce, etc. But, mediation, and especially other ADRs, have been slow to
catch on in special education. In fact, prior to IDEA-97 and its regulations, mediation was not mentioned in IDEA
except for a brief note after 34 CFR 300.506 regarding hearings. Are parents and districts too obsessed with regard
to their respective rights/responsibilities under IDEA? Are OSEP and state departments too compulsive about meeting
45-day deadlines and other procedures that they forget the goal of educating a student in partnership? Are the
disputes just too emotional or is it something else?
B. Finally, mediation and other ADRs are now being more frequently considered. Why? The provisions of IDEA-97 (to be discussed below) certainly help. But hearings/complaints have gone wild in terms of their number in a few places, but even more so generally regarding their time, intensity, issues, and other legal entanglements. Everyone, parents, and district staff are getting tired and frustrated.
C. Four myths about ADR that must be dispelled:
1. Mediation only follows a request for hearing: No. The time to consider an ADR is not just after a parent (or
district) has requested a hearing/filed a complaint. It should be considered at any time a significant dispute
arises in the evaluation/IEP/hearing/complaint process.
2. Mediation is the only ADR: Not true. There are many others and combinations of them which might be appropriate in differing situations (which will be discussed more in detail later on). In short, suggesting/agreeing upon a particular ADR option at the outset can be critical.
3. Only special education issues can be mediated: Anything can be subjected to mediation/an ADR–if the parties want to, e.g., disputes concerning pure discipline, records, sports, staff, etc., etc. (non-special education mediation wouldn't be IDEA funded!).
4. Someone has to "give more" in mediations/ADR: Not
necessarily so. The resolution often can be a different way that meets the student's needs and the concerns of
both parties, e.g., one to one paraprofessional vs. needs/responsibilities, consultive therapies vs. direct, BIP
in IEP, etc.
II. MEDIATION.
A. Clearly, it's the most traditional ADR option. It's an informal, confidential process in which persons having
a dispute, with the help of a trained neutral person, try to find a mutually agreeable solution to their dispute.
The neutral does not decide the dispute. It's voluntary with neither party waiving any right.
Under IDEA-97 and the new regulations, each state and district must establish procedures which allow disputes to
be resolved through mediation. It cannot be used deny or delay a hearing. The mediator must be "qualified,"
i.e., trained in mediation techniques and special education law. The mediator cannot be an employee of a district
or state agency, nor an employee of an SEA providing direct services to a child who is the subject of the mediation.
The mediator must not have a personal/professional conflict of interest (which will not arise solely because of
being paid by the district/state).
The state must maintain a list of qualified mediators. If a mediator is not selected from the list on a random/rotational
basis, the parties must agree on the mediator.
Either the state or a district may establish a procedure to require parents who refuse to use mediation to meet
at a time and a place convenient to the parents with a "disintereste
