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 "disinterested party" (from a parent training/information
center, community parent resource center, etc.). The purpose of the meeting would be to encourage the use of mediation
and explain its benefits. The cost of mediation and these meetings is to be paid by the state.
Mediation sessions must be timely scheduled and held in a convenient location. An agreement reached in mediation
must be set forth in a written agreement. Mediation discussions are confidential, can't be used in any due process
hearings/court actions and parties may be required to sign a confidentiality pledge. A state may opt to allow parents
to file claims for attorney's fees for mediation requests filed prior to a request for hearing. 20 USC 1415(e);
§300.506.
The Analysis to the new regs notes: "(1) mediation should also be used to attempt to resolve complaints as
well as hearings; (2) mediator qualifications are more stringent than hearing officers to ensure mediation is a
more attractive option, e.g., no district employees; (3) a single mediator (rather than a panel or co-mediation)
is required "for clear communication and accountability;" (4) specific techniques, e.g., utilization
of telephone conferences, is up to the mediator's independent judgment/expertise; (5) the enforceability of mediation
agreements is dependent upon state/federal law; (6) the confidentiality requirement does not diminish a parent's
right to obtain records under FERPA or either party's right to obtain information that would otherwise be subject
to discovery; and (7) a hearing officer should not extend the 45-day deadline due to pending mediation unless both
parties agree (and the same being true with regard to the investigator on the 60-day time deadline concerning a
complaint). See Analysis at pp. 12611-12612.
III. THE ADVANTAGES AND DISADVANTAGES OF MEDIATION.
A. Advantages: There are many, but to name a few: the parties control the resolution of their dispute–not a hearing
officer/court (and thereby ownerships in it/compliance with it more likely); it presents an opportunity for a "win-win"
result and to maintain/enhance/create a cooperative partnership relationship; all relevant/negotiable concerns/issues
can be discussed not just "legal" matters; its confidential; and, it avoids a complaint/hearing which
may be costly in terms of both money and relationship.
While all of the above could and should occur at an IEP meeting, sometimes it doesn't for a variety of reasons
including the lack of a neutral, obsession with the IEP form, the atmosphere otherwise, the lack of available information/understanding
of that information/options, etc.
B. Disadvantages. Some of the disadvantages are: There is not guarantee of an end to the dispute (although a process
might be identified which would lead to a resolution); there is no way to force the other party to mediate; it
can be abused, e.g., used for discovery; and, time and money may be lost if the effort is unsuccessful.
C. Disputes in special education should be a good "candidate" to be resolved by mediation (or other ADR
options) because education is not exact, there often being many approaches and options; the parent/district partnership/relationship
will be continuing; and, the potential negatives of pursuing a hearing are many and significant, e.g., "losing,"
expensive, lengthy, acrimonious, etc.
IV. THE ACTUAL MEDIATION PROCESS.
A. Typically a parent and district would agree to go to mediation and ask that a mediator be chosen from the list
or agree upon one. Sometimes a parent or district might contact a mediation center indicating their willingness
and have the center contact the other party regarding their willingness to participate. An agreeable time and location
is arranged (although a conference call between the parties can also be held if desired/appropriate re: establishing
the time and location, participants, prior information to be exchanged, issues, etc.).
B. At the mediation, which is informal, typically the mediator makes an opening statement. Each sides is then given
an opportunity to present its view of the dispute. Thereafter the mediator may lead a joint discussion and/or separate
the parties, speaking with them independently, for as long as the mediator and the parties believe progress on
an agreement is being made. If agreement is reached, it is written down and signed.
C. This presenter believes the traditional approach to mediation should be modified for special ed disputes in
three ways. First, traditional mediators do not believe they need to know much of anything about the subject. To
be effective with regard to the special education area, this presenter believes the mediator needs both an understanding
of the law, but also the "practice" and practicalities of how the evaluation/IEP and hearing processes
really work (or don't work). IDEA-97 requires a knowledge of the law, but a little more is even better.
Second, in traditional mediation, the opening statements of each party are usually limited in time nor is any interruption
allowed. Given in special education the parties have typically discussed issues for hours before, during, and after
an IEP meeting, this presenter believes the mediator should be more directive, i.e., focusing discussion from the
outset on the issues, namely the needs of the students and how to address them rather than history, alleged wrongs,
etc.
Third, traditional mediators (although it depends on style) usually prefer to be more passive and subtle with regard
to suggesting possible new options/approaches or opinions. This presenter believes in the special education arena
both parents and districts are often starving and welcome new options/ideas and if done appropriately, candid assessments
of the strengths/weaknesses of their "case."
V. PARTIES REFUSING TO UTILIZE MEDIATION.
A. While generalizations are dangerous, it appears most parents are willing to try it. Interestingly, IDEA-97's
option of requiring parents to meet with third parties is apparently being utilized rarely even when parents do
refuse.
B. District refusals seem more plentiful for a variety of reasons. Some think mediation is arbitration, i.e., a
decision will be made. Others say they "having nothing more to give" and/or the parent is unwilling to
"move." Others want to "get it over with!" Still others say if it could be settled, it would
have and should have given all the discussions we've had. Finally, some say it's a "legal" issue that
must be decided by a hearing officer.
C. The advantages/disadvantages have already been noted. With rare exception, most of the above excuses are lousy.
VI. PRACTICAL THINGS TO CONSIDER IN MEDIATION.
A. The mediator–If you can, consider the mediator's personality (e.g., active/passive, facilitative/evaluative,
etc.), the mediator's knowledge of the law and the practice of special education, and finally the mediator's work
experience, e.g., parent of a student with a disability, district staff, hearing officer, professor, etc.). Weigh
how these factors fit into to what you hope to achieve through the mediation (e.g., focus more on legal issues
than non-legal issues) and the mediator's receptivity to the style and tactics you want to pursue in achieving
those goals (e.g., legal arguments, practical educational approaches, etc.). Bottom line, try to get a mediator
who fits your particular situation.
B. What should you do with the pending hearing/complaint?–Sometimes limiting the time to conduct a mediation and
keeping the pressure on is good and at other times it's bad. Generally, if the mediation can be conducted without
undue delay, while still having the hearing "ready to be scheduled or go within a couple of weeks" is
best. Bottom line, keep the pressure on the parties, but not so much that they're wrapped up in hearing preparation
both psychologically and timewise.
C. Be sure that enough time to set aside to conduct the mediation, i.e., typically a day or the better part of
the day. While initially it may not seem it should take that long, it might and once "the ball gets rolling,"
you really don't want to take a break and reconvene due solely to time constraints.
D. Preparation for mediation–Now that we're headed to mediation, what are the concerns/needs/issues that we'd like
to discuss? Do some self-assessment, internally or externally (e.g., where you're at, why you're there, are there
other options, and have you explored them). Remember, this is not a hearing or complaint investigation so witnesses
and exhibits are not necessary. The focus should be forward, often practical, with an open mind (even if your frustrated,
mad, tired of this, etc.).
While the focus should rightfully be upon the student–don't totally ignore personalities which may be a part of
the dispute. What does the district want–and what does the parent want? Consider what the district/parent is willing
to do, including even such things as paying some attorney's fees. Consider how one wants to use the mediation process,
i.e., to share sensitive information, explore settlement possibilities and/or convince the opposing attorney/party
to settle?
Probably the biggest mistake the parties and their attorneys make is not analyzing a dispute situation in an attempt
to identify and address not only the disputed issue(s), but the underlying problem(s) as well. In some situations
there are no underlying problems. But, consider these common categories of underlying problems (which are not mutually
exclusive):
1. The parties never really discuss the situation, e.g., the parent and/or advocate just asked for the hearing
or agrees with the IEP and then asks for a hearing, etc. For example, parent asks for IEE, student placed in private
school and lines are drawn, district says it doesn't need to provide on ESY or ESD, etc.
2. The parties don't like/trust/have no confidence in each other, i.e., a total breakdown in the relationship,
e.g., the district has made one or more mistakes and/or parent is angry, perceives district staff lack interest
in child, etc.
3. "More is better" (usually parent), i.e., extended school year, more Orton-Gillingham tutoring, more
OT/PT, greater integration, more Lovaas discrete trials, nurse (versus trained aide), etc.
4. "The methodology panacea" (can be either a parent or district staff person)--there's only one appropriate
approach, e.g., Lovaas vs. TEACCH, Orton-Gillingham vs. any other multi-sensory approach, ASL at state school for
the deaf vs. local programming, oral vs. total communication, facilitated communication, total inclusion, etc.
The method takes on an almost "religious" aura, i.e., it's a matter of faith regardless of educational
foundation, the individual student's needs, etc., almost tantamount to a "cure."
5. Bad professional advice (can be received by either a parent or a district), e.g., no moderately or severely
mentally impaired student can be meaningfully integrated, physician identifies student as ADHD, facilitated communication
can never work, physician says only nurse (not trained aide) can provide medical intervention, Lovaas-type programming
constitutes an illegal aversive therapy, physician prescribes OT/PT from purely medical standpoint and, of course,
poor legal advice on what's required under IDEA.
6. "Management amuck"--the parent wants to micro manage implementation of the program and/or the district
administratively can't seem to manage it due to lack of skill/expertise/ability to control frustration. The district
wants some "professional space."
To address one of these "real" underlying problems may require consideration/use of an ADR option other
than mediation at the outset, or an ADR option as the product in whole, or in part, of a traditional mediation
process. Other ADR options to address such problems will be discussed further below.
E. Who should participate?–Participation can be actual presence or availability by telephone or otherwise. Either
party can request this be discussed and resolved when the mediation is scheduled or when it starts. And, sometimes
at the opening of the mediation session many persons will hear the mediator's opening statement to understand the
process/ground rules, and thereafter, some persons will be excused and later involved if necessary. Generally,
the smaller the number, the better, provided the decision makers and key support people are present for each party
(with information providers either there or available). Remember, mediation is voluntary therefore in this regard,
as well as all others, either party can object and refuse to participate should they not like the ground rules.
Obviously, a parent must be present. But, a variety of factors can come into play with regard to the desirability/necessity
of the other parent being present. For the most part, the parent will control this, but districts might sometimes
want to encourage or try to "require" both parents be present.
With regard to districts, critical is that a decision-maker be present (even if recommendations need to be checked
with someone else). Among other factors, districts (and parents) should consider which staff have the respect/good
relationship with the parents and can effectively communicate, and the needed information regarding the student/programming.
Whether advocates/attorneys participate and how again is up to the parties. Typically, they're not prohibited.
But each party should consider whether the presence of the advocate/attorney is desirable under the circumstances,
or necessary, and the role they will play in the mediation (e.g., spokesperson, legal consultant, etc.). Consider
your attorney's attitude and skills to achieve a settlement (i.e., is he/she litigation oriented in approach? Consider
the attitude/reputation/skills of the parent's advocate/attorney with regard to whether the district's attorney
need be present (or available by phone)?
Finally, there are other persons who might participate, most notably in some situations the student, other support
persons, interpreters, etc. Remember, witnesses and observers are not necessary.
F. The agreement and wrapping it up–An agreement could cover a variety of matters, some special education, some
not. Regarding special education matters, it might be best for the agreement to indicate what will happen, an IEP
meeting will be called, or the hearing officer will acknowledge/approve the agreement in a decision and conclude
the hearing. With regard to non-special education matters, if necessary, consideration might be given to identifying
responsibility for implementation, avenues for addressing any noncompliance, etc.
VII. OTHER ADR OPTIONS.
A. Facilitation.
1. Facilitation is basically where a neutral third party merely facilitates an IEP or other type of meeting to
assist the parties in discussing and hopefully resolving the issues.
2. Amazingly, districts often select a person to "run" an IEP meeting who has no skills to run any type
of meeting and/or fails to understand the building blocks of an IEP! Moreover, sometimes the whole environment
for an IEP meeting can be changed, merely by appointing or mutually selecting a neutral facilitator to run the
meeting.
B. Conciliation.
1. Conciliation is where a neutral third party acts as an intermediary between the parties to informally explore
mutually agreeable solutions, typically without meeting with both parties.
2. Something akin to mediation, conciliation has the advantage of allowing a neutral third party to speak with
various individuals or groups on each "side" of the dispute at various times, allowing them in between
to confer with each other or gather other information, etc. At times, conference calls with both parties or actual
meetings might be appropriate. In short, it offers flexibility and the opportunities for more time between conversations
which a mediation usually will not.
The disadvantage is that sometimes more time and the failure to have the parties physically present may lessen
the subtle "pressure" and immediacy to gain a resolution. And, of course, the going back and forth via
telephone calls typically will take a period of time, possibly a couple of weeks where as a mediation session would
usually be quicker.
C. Neutral evaluation.
1. This is not an educational evaluation, but rather an evaluation of the case, i.e., the strength and weakness
of each party's position, both legally and factually, even possibly to the point of rendering an advisory opinion
as to what would happen if the case were actually litigated. The evaluator would obtain information based upon
an agreed upon process, typically informal. In some states, this approach is called a "mini hearing"
with each side being given a specified period of time in which to present evidence or have the advocate merely
state what it is believed would be shown at a hearing. The opinion can be given orally or in writing. The extent
of its use should be agreed upon with the parties beforehand, i.e., could it be used in a subsequent hearing. At
a minimum it would hopefully lead to settlement, although the parties could even agree that it be binding.
2. Many times parties just want to know whether they have a case or not in the eye of a neutral third party that
they respect, i.e., a reality check. Or, a party just might need someone to tell them they have to "do it,"
i.e., a district for political reasons. This option might also work where the question is a purely legal one, and
the parties for whatever reason choose not to use the traditional IDEA complaint procedure. Such might be used
as a prelude to mediation where one or both parties receive that just by agreeing to mediation they are letting
down their guard a bit regard the firmness of their position.
D. Neutral educational evaluation.
1. Granted, a parent under IDEA can request an independent educational evaluation (IEE) and a district can go outside
its own staff to a somewhat independent educational evaluator. But the parties can also mutually agree upon utilizing
an independent evaluator regarding various educational issues even before district staff conduct an evaluation
(where it is fairly clear the parents will object) provided the parents agree that this IEE will also satisfy their
right to an IEE.
2. Key points to consider in this regard are ensuring that the role and responsibilities of this independent educational
evaluator are all agreed upon and clearly spelled out, i.e., exactly what questions are do they answer, their information
gathering process (being sure to talk with both parties), what use, if any, can be made of this evaluation in a
subsequent ADR option or hearing, who pays (district or insurer), etc.
3. IDEA-97 requires an "assessment plan" (albeit without an IEP meeting under the new regs) regarding
how a student with disabilities will be evaluated or reevaluated. The parties should seize upon this assessment
plan as an opportunity to discuss and resolve (possibly by the utilization of a neutral educational evaluator or
other ADR options) common evaluation disputes, i.e., which district staff person will conduct the evaluation, is
a neuropsychological or vision therapy evaluation necessary, should the student be videotaped, should the parents
provide access to, and the records of, outside professionals who have evaluated or provided services to the child
such as physicians, psychologists, tutors, and should some communication guidelines be established between district
staff and such outside evaluators/service providers.
E. Various non-traditional options.
1. Relations consultant–sometimes mutually agreeing upon a third party (often a psychologist or social worker)
who will discuss with both parties their relationship problems including suggestions how they might improve it
is very beneficial.
2. Trial placements–all too frequently disputes in special education are addressed by battling experts, e.g., methodology
disputes, "more is better" disputes, etc. This option is to have a trial in order to determine the student's
program based upon the student's performance with preagreed upon goals/objectives, criteria for assessment, stay
put, and maybe a prearranged informal process to determine desired adjustments, disputes, etc.
3. Mutually agreed upon "God"–a mutually agreed upon neutral third party (maybe a higher ed educator)
reviews everything, talks to everybody, and decides what the student's IEP will be for a given period of time as
well any disputes or desired changes to the IEP. At the end of the period of an IEP meeting is held with the third
party chairing it and each party then having the right to pursue a hearing.
4. The "ready cop"–this option might be used where the parties have agreed on all current disputes, but
recognize given their relationship the likelihood of future disputes is great, i.e., a violation of the agreement,
a desired change, etc. A mutually agreed upon third party is given the authority to rule upon such disputes quickly
after an informal information gathering process.
5. "Mediation" and informal hearing–the parties can agree upon a mediator/hearing officer and that they,
their advocate/attorneys, and necessary witnesses will all be sworn in and sit around the table to discuss the
disputes on the record, i.e, a court reporter/tape-recorder. Both parties waive a more formal hearing. The initial
discussion generally and/or in private caucuses would be comparable to a mediation session. But, any unresolved
issues would be determined by the hearing officer based on the record of the discussion. If information was received
by the mediator/hearing officer off the record in a private caucus, he/she would notify that party that unless
the information was put on the record, it would not be considered in the decision. This approach is probably not
far from what Congress envisioned hearings would be under IDEA when it created them in 1975!
6. Utilize a less formal hearing process–both parties can waive their right to a formal hearing or any part of
it. For example, the parties could agree on any type of information gathering process from having the hearing officer
gather the information like a complaint investigator or via an informal round table discussion. Some of the strategies
being utilized in handling the "expedited" hearings mandated under IDEA-97 in disciplinary situations
might also be considered, e.g., limiting the time that each party has to present its case, requiring that the direct
testimony of witnesses be written down prior to the hearing so that the hearing only deals with cross-examination
and re-direct, allowing the hearing officer to ask the questions of each witness first, etc.
F. Note: At the outset, it was mentioned many ADR options present risks. The non-traditional options present greater
risks given both parties are waiving legal rights, they are placing important decisions in the hands of third parties
for a period of time, they may give up the right to appeal, etc. But, such risks must be weighed against the alternative
usually foreseeable consequences of not resolving the dispute and namely going to hearing.
G. Actual sample agreements of the various non-traditional options noted in paragraph E(1) through (6) above are
available upon request. But, remember any sample agreement must be adapted to fit the situation at hand and reviewed
by advocates/attorneys for each party.
VIII. CONCLUSION.
A. Please keep in mind the four myths, i.e., ADR options can be used at times other than after a parent requests
a hearing; mediation isn't the only ADR; issues other than special education can go to ADR; and you needn't necessarily
"give" to get a resolution in ADR.
B. Life is not without risks. We take them all the time, hopefully with some calculation. Such must be done more
than ever before to resolve disputes in special education. The key question always is are the risks presented worth
taking given the possible consequences and/or benefits? Good luck!
Suggested Communication Guidelines
SAMPLE AGREEMENTS
Memorandum of Agreement
Settlement Agreement1
Settlement Agreement2
Agreement to Combine Mediation with
Informal Hearing
Agreement to Modify Hearing Procedure
This document is a handout from a presentation
delivered by Lyn Beekman (shown here) at the ALLIANCE National Conference in Washington, D.C., January 2000. For
more information or to discuss permission to copy, please contact
Mr.
Beekman.
