CADRE Resources
CADRE's Question of the Month:
Q. I am interested in any information you can provide me regarding training programs on mediation and conflict resolution. How do I become a special education mediator?
A. IDEA ’97 requires states to maintain a list of qualified mediators who are trained in effective mediation techniques and knowledgeable in laws and regulations relating to the provision of special education and related services. Each state administers their special education mediation system in somewhat of a unique way. Some states use a central panel of mediators, other states use administrative law judges or hearing officers, and some states contract with private providers - both for-profit and not-for profit. You may want to contact the person responsible for special education mediation in your state. You can find this information in CADRE’s state database at: www.directionservice.org/cadre/state.
If you have not received any mediation training or experience, the easiest way to acquire it may be through the network of community mediation programs located throughout the United States. These mediation programs typically receive support and referral from the local courts or social service agencies and mediate a wide range of disputes including civil, criminal and family court matters. Many community mediation programs conduct a high volume of cases so frequently, there are opportunities for newly trained mediators to get case experience. You can find a list of community mediation programs and contact information through the National Association for Community Mediation (NAFCM) web site: www.nafcm.org.
One caution if you’re thinking about mediation as a new career: While the demand for special education mediation is probably increasing, it still may be difficult to have a "career" as a special education mediator. Most professional mediators provide services in a variety of domains including family/divorce and commercial mediation.
To find training opportunities, search CADRE’s Calendar feature at: www.directionservice.org/cadre/calendar/. You may also want to check the calendar section at the web site of CADRE partner www.mediate.com. There are often mediation training opportunities listed in both of these databases.
Previously Asked Questions:
1. Who is CADRE, and what do you do?
2. I have been told that mediation may be a waste of my time and will delay my ability to get a due process hearing. Is this true?
3. My child has Down Syndrome and is not doing well in school. He is 11 years old and I believe is supposed to get extra help in a Learning Disabilities (LD) resource room. I think he needs several hours of speech therapy each week but the school is only offering 20 minutes. What can I do?
4. I am a special education teacher who will be attending a mediation for a child in my classroom. What should I expect?
5. As superintendent of my school district, I have implemented an Early Solution Panel that uses facilitators to resolve issues between families and the schools before they escalate to formal complaints or a request for due process. Does IDEA '97 allow this very successful program to continue? Can we still use a panel of neutrals to facilitate these meetings?
6. My child is 8 years old and was recently diagnosed with ADHD (Attention-Deficit/Hyperactivity Disorder) and a Learning Disability (LD). The school is not providing the services agreed to in the IEP and I would like to consult with an attorney about the matter. Where can I locate a lawyer with a special education background?
7. As a special education mediator, I am interested in talking with other mediators about the challenge of mediating in this particular area. How can I do this?
8. I work in an early intervention program serving families of infants and toddlers with disabilities. Does CADRE assist those who fall under this program?
9. I am a student doing a paper on disability issues and mediation. Can you send me everything you have as soon as possible?
10. I have been having serious disagreements with my son's school district over his educational program and placement. I'm scheduled to go to a mediation. How might I best prepare?
11.. I'm wondering whether courts enforce special education mediation agreements?
1. Who is CADRE, and what do you do?
CADRE, The National Center on Dispute Resolution, is funded by the United States Department of Education, Office of Special Education Programs. CADRE uses advanced technology as well as traditional means to provide technical assistance to state departments of education on implementation of the mediation requirements under IDEA '97. CADRE also supports parents, educators and administrators to benefit from the full continuum of dispute resolution options that can prevent and resolve conflict and ultimately lead to informed partnerships that focus on results for children and youth.
2. I have been told that mediation may be a waste of my time and will delay my ability to get a due process hearing. Is this true?
There is considerable evidence that disputes resolved through mediation produce many benefits for participants. Some of these benefits include high levels of satisfaction with the process, written agreements with high rates of compliance, agreements that are better than simple compromises or the win/lose outcomes of adversarial proceedings, agreements that hold up over time, and the preservation of ongoing relationships. See our Benefits of Mediation page for a fuller discussion.
The 1997 Re Authorized IDEA specifies mediation requirements when a due process hearing is requested. These regulations include specifics of participation, parental rights, and who conducts the mediations:
b) Requirements. The procedures must meet the following requirements:
(1) The procedures must ensure that the mediation process--
(i) Is voluntary on the part of the parties;
(ii) Is not used to deny or delay a parent's right to a due process hearing under Sec. 300.507, or to deny any other rights afforded under Part B of the Act; and
(iii) Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
(2)(i) The State shall maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to provision of special education and related services.
(ii) If a mediator is not selected on a random (e.g., a rotation) basis from the list described in paragraph (b)(2)(i) of this section, both parties must be involved in selecting the mediator and agree with the selection of the individual who will mediate.
(Authority: 20 U.S.C. 1415(e))
3. My child has Down Syndrome and is not doing well in school. He is 11 years old and I believe is supposed to get extra help in a Learning Disabilities (LD) resource room. I think he needs several hours of speech therapy each week but the school is only offering 20 minutes. What can I do?
Perhaps the best way to resolve a special education dispute is to prevent the development of a conflict from occurring. CADRE thus emphasizes maintaining open and continuous communication with educators at your child's school. If a situation does arise, we encourage the early use of informal discussions and direct negotiation with the hope of resolving the matter to everyone's satisfaction.
In the event that informal cooperative efforts are not successful and a dispute develops, CADRE emphasizes timely interest-based mediation. Mediation is a voluntary process where an impartial mediator assists the participants to reach an agreement that is put in writing. Mediation can occur at any time and even more than once. All decision-making in mediation is voluntary and the mediator has no decision-making authority. The mediator may share his or her suggestions for resolution if the participants and the mediator agree in advance that this is an appropriate role.
In all cases, parties retain their full substantive and due process rights under IDEA and other relevant laws. The Reauthorized IDEA (1997) clarifies parties' due process rights.
An outstanding document for enhancing your understanding of due process rights under IDEA is the NICHCY Training Module in the Due Process Rights Section of the CADRE web site. Also, visit the web sites of CADRE Partners and tour the CADRE web site for a full understanding of existing resources concerning special education due process rights.
In the event you wish to consult with an Information Specialist, CADRE partner NICHCY/AED is charged with responding to individual requests from family members and educators. For those who are seeking information about dispute resolution options in the special education process, NICHCY has a toll free number 1-800-695-0285 (voice or TTY). Bilingual Information Specialists are available to assist callers with questions or requests for information. NICHCY is also available at www.nichcy@aed.org.
4. I am a special education teacher who will be attending a mediation for a child in my classroom. What should I expect?
Mediation may be thought of as "assisted negotiation." The mediator, an impartial and mutually acceptable helper, assists parents and schools to reach agreement with regard to the education of a child. You have complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed on you.
Mediation is a confidential process. Your mediator is obligated to describe any exceptions to the general confidentiality of mediation. Confidentiality in mediation may be waived in writing, although the mediator may retain his or her own ability to refuse to testify in any contested case. The extent of confidentiality for any "caucus meetings" (private meetings between the mediator and individual parties) should be defined in advance of the mediation by the mediator and participants.
The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor should the mediator favor a particular result in the mediation. Your mediator must be acceptable to all mediating. The mediator's role is to ensure that parties reach agreements in a voluntarily, informed and satisfactory manner, and not as a result of coercion or intimidation.
If a due process hearing is requested, mediation under full compliance of IDEA '97 must be offered to the family by through the state department of education. Whether you are attending mediation under IDEA or informal mediation, the mediation process generally follows the same format. Mediation is a flexible, adaptable process and participants have considerable control over how it is conducted. Participants decide who will participate, who will mediate, and where and when the session(s) will occur.
The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Mutually acceptable experts can be retained. Jointly obtained expert information can be designated as either confidential to the mediation or, as the parties desire, admissible in any subsequent contested proceeding. Expert advice is never determinative in mediation - the parties always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought is, ultimately, a decision of each mediation participant.
5. As superintendent of my school district, I have implemented an Early Solutions Panel that uses facilitators to resolve issues between families and the schools before they escalate to formal complaints or a request for due process. Does IDEA '97 allow this very successful program to continue? Can we still use a panel of neutrals to facilitate these meetings?
The IDEA '97 regulations describe what is required, at a minimum, of SEAs as a response to a due process request. Attachments to IDEA '97 suggest that any informal procedure that enhances and improves the working relationship between families and schools is a positive and welcome step. Dispute resolution procedures involving mediation or other informal processes must never be used to delay or deny a family's right to a due process hearing.
Sec. 300.506 Mediation.
(a) General. Each public agency shall ensure that procedures are established and implemented to allow parties to disputes involving any matter described in Sec. 300.503(a)(1) to resolve the disputes through a process that, at a minimum, must be available whenever a hearing is requested under Secs. 300.507 or 300.520-300.528.
(Authority: 20 U.S.C. 1415(e))
The Congressional Committee Reports on the IDEA Amendments of 1997 express the view that the Amendments provide an opportunity for strengthening the role of parents, and emphasize that one of the purposes of the Amendments is to expand opportunities for parents and key public agency staff (e.g., special education, related services, regular education, and early intervention service providers, and other personnel) to work in new partnerships at both the State and local levels.
(H. Rep. 105-95, p. 82 (1997); S. Rep. No. 105-17, p. 4 and 5 (1997))
(Authority: [Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations, p. 12472])
Every effort should be made to resolve differences between parents and school staff through voluntary mediation or some other informal step, without resort to a due process hearing. However, mediation or other informal procedures may not be used to deny or delay a parent's right to a due process hearing, or to deny any other rights afforded under Part B.
(Authority: [Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations, p. 1247412474])
Discussion: & The statute clearly states that the option of mediation must be available whenever a due process hearing is requested. No further requirement would be added to the regulations. However, States or other public agencies are strongly encouraged to offer mediation or other alternative systems of dispute resolution prior to the filing of a request for a due process hearing, and whenever a dispute arises.
(Authority: [Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations, p.12611])
States may provide for mediation at an earlier stage, thereby allowing for informal dispute resolution before or after the State complaint process, preventing the need for a due process hearing. However, mediation may not be used to deny or delay the parents' right to due process.
(Authority: [Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations, p.12654-5])
6. My child is 8 years old and was recently diagnosed with ADHD (Attention-Deficit/Hyperactivity Disorder) and a Learning Disability (LD). The school is not providing the services agreed to in the IEP and I would like to consult with an attorney about the matter. Where can I locate a lawyer with a special education background?
The CADRE web site contains an online searchable data base of special education conflict resolution professionals and we suggest you begin by conducting a search. This data base is open to all special professionals at no cost. We have initially included a number of professionals in the database who helped develop CADRE because of our familiarity with their work and their demonstrated expertise in the area of conflict resolution and special. We are now encouraging others to enter their professional information in order to have the most comprehensive data base possible, but at this time listings are still limited.
Therefore, CADRE encourages parents to contact their local Protection & Advocacy organization or local Parent Training & Information organization. CADRE core partner NICHCY has an excellent data base where contact information for these organizations near you can be found - www.nichcy.org/states.htm.
Also, contact your local and/or state bar association for information and lawyer referral services. Your state bar association can be found at http://www.abanet.org/legalservices/findlegalhelp/home.cfm
7. As a special education mediator, I am interested in talking with other mediators about the challenge of mediating in this particular area. How can I do this?
One feature of CADRE's web site is an interactive forum designed for individuals who wish to participate in on-line discussions around various topics of shared interest. The forum contains nine separate conferences where participants can engage each other including a conference devoted to professionals. Additionally, most of the web sites linked to CADRE provide areas where a calendar of professional events - conferences, training activities, meetings and the like - are listed and updated regularly.
CADRE's web site also contains a Professional Data Base where other special education and mediation professional in your area can be identified and contacted directly.
8. I work in an early intervention program serving families of infants and toddlers with disabilities. Does CADRE assist those who fall under this program?
CADRE seeks to assist states, local school districts and families with children between birth and age 21. That includes those children who fall under Part 303-Early Intervention Program for Infants and Toddlers with Disabilities:
Sec. 303.419 Mediation.
(a) General. Each State shall ensure that procedures are established and implemented to allow parties to disputes involving any matter described in Sec. 303.403(a) to resolve the disputes through a mediation process which, at a minimum, must be available whenever a hearing is requested under Sec. 303.420. The lead agency may either use the mediation system established under Part B of the Act or establish its own system. (Authority: 20 U.S.C. 1415(e) and 1439(a)(8))
9. I am a student doing a paper on disability issues and mediation. Can you send me everything you have as soon as possible?
For students, or others, interested in collecting as much information as possible about disabilities issues, special education, mediation or alternative dispute resolution we recommend you visit and fully explore the CADRE web site. In addition to the many resources and articles found here, you will find hot links to our Core Partner which include some of the leading national disabilities organizations:
National Information Center for Children and Youth and Disabilities (NICHCY)
Technical Assistance Alliance for Parent Centers (Pacer Center)
National Association of State Directors of Special Education (NASDSE)
Mediate.com (www.mediate.com)
Western Regional Resource Center
Western Oregon University - Teaching Research
These web sites contain information, publications, searchable databases and other resources that will be helpful in your search. Additionally, CADRE's Core Partners' web sites will link you to more organizations, agencies, and disability and mediation groups whom you can also contact.
10. I have been having serious disagreements with my son's school district over his educational program and placement. I'm scheduled to go to a mediation. How might I best prepare?
We are very supportive of your desire to resolve differences with the school district through mediation. Our strong belief is that parents, educators, service providers and ultimately, children and youth benefit when adversarial encounters are avoided and differences are resolved through positive communication and collaboration.
While mediation is typically an informal process, especially compared to a due process hearing, we strongly recommend that you take some time and prepare in advance. Here are some suggestions we hope will assist you in your preparations.
Make sure you bring documents that you think will be helpful to the mediation. Organize the documents in a way that makes sense to you and so that they are easily located. It might help to arrange the documents by date. Your file might include copies of evaluations, IEP's, correspondence, medical reports, and other information.
One of the powerful aspects of mediation is that any concerns you have about your child's education are open for discussion. The mediation is an opportunity for you and the school to address any issues related to your child's education program and make suggestions for your child's IEP team to consider and adopt.
It may be helpful to create an outline of the issues or areas of concern you wish to raise with the school, or even to compose a complete narrative or story. Having your thoughts and the important points you hope to share written down and in front of you, will help you communicate your concerns in a meaningful way and ensure that you don't leave out any issues that are important to your family. We recommend you prepare this several days before the mediation so you have plenty of time to review it and to ensure that it includes all of the points you wish to convey.
If you haven't already, consider familiarizing yourself with IDEA '97 and the associated regulations. The regulations are available in a variety of formats at The Alliance web site: http://www.taalliance.org. If they seem lengthy and complex, your local Parent Training and Information Center is a good source for clarification.
Finally, if this is the first time you have participated in a mediation session, you may want to review some of the other information at the CADRE web-site that highlights the process.
There is an overview of mediation at: http://www.directionservice.org/cadre/aboutmed.cfm
The benefits of mediation can be found at: http://www.directionservice.org/cadre/med_benefits.cfm
An example of mediation ground rules are found at: http://www.directionservice.org/cadre/grs.cfm
We cannot underscore the importance of adequate preparation for the mediation. You are far more likely to achieve the results you want for your family if you think through in advance what are the important issues you want to address. Additionally, the school district may be more responsive if they perceive you to be knowledgeable, organized and committed to working out differences in a collaborative fashion.
11. I'm wondering whether courts enforce special education mediation agreements?
The question you ask is both important and somewhat complex. We want to emphasize that none of this response should be construed as interpretive of IDEA or state and Federal laws and regulations.
Readers who would like to understand the logic behind the regulations are encouraged to read the Analysis of Comments and Changes (Attachment 1) included with the Regulations published in the Federal Register, March 12, 1999. The complete entry from Attachment 1 regarding the regulations under 34 CFR 300.506, Mediation, can be found here: Analysis on Comments and Changes. In these comments, the Department states that "Mediation is an important alternative system for resolution of disputes under Part B. However, in order for mediation to be effective, it must be an attractive alternative to both public agencies and parents and it must be an impartial system which brings the proper parties into a confidential discussion of the issues and allows for a binding agreement that resolves the dispute." (emphasis added) Further, the Department notes that "The enforceability of a mediation agreement, like the enforceability of other binding agreements, including settlement agreements, will be based upon applicable State and Federal law."
CADRE is not aware of any case law specific to special education in this area. That said, it is important to note that agreements that are reached in mediation are often taken to the student's IEP team for potential inclusion in the student's IEP. Those mediation agreements that are subsequently included in the IEP then have the same enforceability as exists for IEPs in general.
Noting that this discussion isn't specifically related to special education, it may interest you to know a little about the history of the enforceability of mediation agreements. The issue of enforcing mediation agreements has been an evolving one for the last three decades, both in terms of practice and case law. Early in the growth of community and court-annexed mediation (1970's - 1990ish), many judges treated mediated agreements that broke down as mediations that never occurred. At the time, enforcement of mediated agreements seemed inconsistent with the nature and values of these voluntary procedures. Because the relationship (pre-existing/on-going) of the conflicting parties was a major motivation for referring the matter to mediation, it was seen as appropriate to re-mediate when things broke down and inappropriate to use legal enforcement mechanisms. Mediation was seen as a voluntary process, reaching agreement was seen as voluntary, and breaking those agreements was also seen as voluntary. Essentially, judges viewed the situation as though mediation never occurred, were uninterested in the details, and would direct the parties to prepare for litigation.
The use of mediation has grown considerably and much has changed with regard to enforcement of agreements. Indeed, many people view the legal enforceability of agreements as important to the effectiveness of the mediation process, and in some topical areas (not necessarily special education) participants are informed in advance that their agreements are "binding" or "enforceable". Generally, judges now apply relevant contract law to the enforcement of mediated agreements. Much of this is based on public policy that has emerged from legislative intent, appellate decisions upholding this intent, and newly emerging judicial ideals of docket management and cost-containment. To be sure, relevant case law and associated practices will continue to evolve in this area.
We hope these observations are helpful. We emphasize again that none of this response should be construed as interpretative of IDEA or state and Federal laws and regulations. For a more complete understanding of the issue of enforceability of mediation agreements, you should read the Analysis of Comments and Changes, Attachment 1 to the Regulations and consult with legal experts in your state regarding the particulars of the enforceability of written mediation agreements in your area.
