State Mediation Systems - A NASDSE Report

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State Mediation Systems - A NASDSE Report

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Date: October, 1998

From NASDSE's Quick Turn Around Forum - a brief analysis of a critical issue in special education. Republished here with permission of NASDSE.

View Summary of Survey Responses.

Purpose

This report is a brief analysis of the results of a survey of State Directors of Special Education on their state mediation systems. It was conducted as a follow-up to previous Project FORUM documents on this topic (Ahearn, 1997, Ahearn, 1994, Schrag, 1996). Responses to selected items of the survey are summarized in the attached table.

Background

Although not required prior to the passage of the 1997 amendments to the Individuals with Disabilities Education Act (IDEA), mediation systems were already in place to assist families and schools in the resolution of disputes in over three-quarters of the states (Ahearn, 1994). Section 1415(e) of IDEA ‘97 now requires state and local education agencies (SEAs, LEAs) to ensure that procedures are established and implemented to allow disputes between parents and schools to be resolved through a mediation process which must be available at least whenever a hearing is requested. Among the specific requirements of this new section are the following:

The mediation must be conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
The state must maintain a list of individuals who are qualified mediators and are knowledgeable in laws and regulations relating to the provision of special education.
An SEA or LEA may establish procedures to require parents who choose not to use the mediation process to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with a parent training and information center, a community parent center or an appropriate alternative dispute resolution entity which will encourage the use of mediation, and explain the benefits and the process of mediation to parents.
The state shall bear the cost of the mediation process, including the costs of meetings described above.

It is important to note that the law does not mandate mediation—it requires that mediation be voluntary, and that it not be used to deny or delay a parents right to a due process hearing or any other rights.

Mediation Survey Responses

All fifty states plus two non-state jurisdictions (Palau and the Department of Defense Schools) responded to the mediation survey. Responses are summarized under each of the eight items on the survey.

Item 1 - Date mediation system implemented by the state.

The 52 responses to this item yielded the following pattern of mediation system implementation:

6 between 1975 and 1979
10 between 1980 and 1985
13 between 1986 and 1990, and
15 between 1991 and 1996
8 no mediation system before 1997

Item 2 - Specific qualifications established for mediators.

A majority of respondents reported that a specific set of qualifications have been established for an individual to serve as a mediator—in only 11 states is this not the case. The most common qualification is the completion of a specified number of training hours in mediation and in special education and related services. The number of training hours required ranges from 16 to 40 hours, with the average being 25 hours. In most states, training is provided by the state’s department of education. The most extensive requirements are in Texas and Kentucky. Texas requires mediators to have 40 hours of training, 2 years of experience, and a masters degree with an emphasis in special education, education, counseling, or a related area; Kentucky requires a bachelor’s degree and 2 years of professional experience as well as knowledge of special education.

Item 3 - Ongoing training and support for mediators.

One hundred percent of the survey respondents reported that they provide mediators with initial training and ongoing support. Training ranges from one to five days in length conducted annually, in addition to monthly or quarterly meetings. Training is designed to extend and refine mediator skills, as well as an opportunity to discuss emerging issues in special education mediation. Some states also require mediators to earn continuing education credits.

Item 4 - Funding sources used to pay mediators.

Almost all respondents reported using IDEA Part B funds to pay mediators. Four use only state funds, while six states use a combination of sources including IDEA Part C funds, LEA funds and CSPD funds in addition to Part B and/or state funds to support their mediation systems. The DODEA is unique—it is supported entirely by Department of Defense funds.

Item 5 - Agency responsible for managing the state mediation process.

In most of the states, the mediation process is managed by the SEA, often in a division of special education or special services. Seven states manage their mediation process jointly with another state agency, usually a conflict resolution office or a division of the state’s legal system. For example, the Michigan mediation process is run by the Michigan Supreme Court, State Court Administrative Office. Some joint management arrangements are based on informal coordination, while others are formalized in interagency agreements.

Five states reported providing mediation through contracts with non-SEA entities. They are: a) California with the McGeorge School of Law; b) Delaware with the University of Delaware Office of Conflict Resolution; c) Georgia with the Justice Center of Atlanta; d) New York with the State Dispute Resolution Association; and, e) Washington with Sound Options Mediation Systems.

Item 6 - Optional SEA policy that requires parents who choose not to use the mediation process to meet with a disinterested party. (New IDEA 97 provision).

Only two of the 52 respondents have enacted this requirement—Arkansas and California. Massachusetts commented that they see such meetings as a way to help parents understand mediation in order to make an informed choice about whether to use it. New York commented that current practice is for districts to urge, recommend, advise, or request a parent to meet with a disinterested/neutral party. Others encourage this practice, although it is not required. Nebraska commented that it was their experience that the LEAs are two to seven times more likely to refuse to mediate than parents.

Item 7 - Optional LEA policy that requires parents who choose not to use the mediation process to meet with a disinterested party. (New IDEA 97 provision)

Only California indicated awareness of an LEA that has established a policy requiring a parent who refused mediation to meet with a disinterested party. The responses of states to questions 6 and 7 indicate that such a mandate has not been a part of mediation systems to date. It remains to be seen whether states will use this dispute resolution tool in the future.

Item 8 - Additional comments.

SEA respondents added comments on a variety of points related to mediation systems:

Many made positive remarks on their perception of the value of mediation, and shared data on their rates of success in reaching settlement agreements.
California and South Dakota underscored the need for effective and ongoing mediator training, especially due to staff turnover.
Nebraska emphasized the need to collect uniform, relevant data across the country on mediation, hearings, outcomes, complaints and the costs involved in each.
The Tennessee respondent suggested that, although participation in the process is voluntary, a mediation agreement should be binding.
The Department of Defense noted the importance of training all educators in mediation skills that can be used in daily conflict resolution and avoid the need for formal mediation.
The New Mexico SEA staff stated that the real sources of conflict between parents and schools most often have more to do with attitudes, communications and emotions than with regulatory compliance. Formal adjudication, therefore, rarely addresses the real issues. They believe that third party assistance should be made available as early as possible to prevent disagreements from escalating into formal disputes.
Florida noted that many of their mediators are employees of LEAs, and expressed hope that the final IDEA Regulations will not prohibit the assigning of those individuals as mediators.
New Hampshire schedules a mediation session automatically as soon as a due process hearing is requested and, if mediation is rejected, a "pre-hearing conference" is held in lieu of the mediation session.

Additional materials provided by respondents:

Fourteen states provided copies of brief documents such as flyers that they use to acquaint people with their mediation systems.

In addition, the following substantive materials were sent with state survey responses:

Massachusetts:

When Parents and Educators Do Not Agree: Using Mediation to Resolve Conflicts About Special Education.

Description of Advisory Opinion Process: When a due process hearing is requested, both parties can agree to this process whereby each side gets one hour to present its case before a Hearing Officer using documents and witnesses. The Hearing Officer then issues a brief (2-3 sentences) non-binding advisory opinion that parties may use this to assess their respective positions and decide on next steps.

Nebraska:

Office of Dispute Resolution Manual of Standards and Ethics for Center Mediators, Directors and Staff.
Copy of interagency agreement between the Department of Education and the Office of Dispute Resolution.
Nebraska Mediation Option: Four Year Comparison 1994-98.
Nevada: Nevada Mediation System for Early Intervention and Special Education, a joint publication of the Departments of Education and Human Resources.
Oklahoma: Supreme Court of Oklahoma Mediation Training and Resources Manual.
Pennsylvania: Guidelines: Special Education Mediation Services.

References

Ahearn, E. M. (1994). Mediation and due process procedures: An analysis of state policies. Alexandria, VA: National Association of State Directors of Special Education.

Ahearn, E. M. (1997). Due process hearings: An update. Alexandria, VA: National Association of State Directors of Special Education.

Schrag, J. (1996). Mediation and Other Alternative Dispute Resolution Procedures in Special Education. Alexandria, VA: National Association of State Directors of Special Education.

* Department of Defense Education Activity

** Palau

View Summary of Survey Responses.

"This report was supported in whole or in part by the U.S. Department of Education (Cooperative Agreement No. H159K70002). However, the opinions expressed herein do not necessarily reflect the position or policy of the U.S. Department of Education, and no official endorsement by the Department should be inferred."

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CADRE Resources Home CADRE Continuum Literature Database Español Resources For Mediators IDEA & Legal Locate Professionals Locate Trainers Participating in Mediation Research & Evaluation Systems Design Training Resources CADRE Products State Information Diversity Calendar Archive This document does not offer formal policy guidance from the Office of Special Education Programs at the United States Department of Education. Subscribe to The CADRE Caucus WHAT'S CADRE CAUCUS? This site is funded by: Subscribe to CADRE's Practitioner List Serve WHAT'S PRACTITIONER LIST SERVE? State Mediation Systems - A NASDSE Report From NASDSE Email this Print this Date: October, 1998 From NASDSE's Quick Turn Around Forum - a brief analysis of a critical issue in special education. Republished here with permission of NASDSE. View Summary of Survey Responses. Purpose This report is a brief analysis of the results of a survey of State Directors of Special Education on their state mediation systems. It was conducted as a follow-up to previous Project FORUM documents on this topic (Ahearn, 1997, Ahearn, 1994, Schrag, 1996). Responses to selected items of the survey are summarized in the attached table. Background Although not required prior to the passage of the 1997 amendments to the Individuals with Disabilities Education Act (IDEA), mediation systems were already in place to assist families and schools in the resolution of disputes in over three-quarters of the states (Ahearn, 1994). Section 1415(e) of IDEA ‘97 now requires state and local education agencies (SEAs, LEAs) to ensure that procedures are established and implemented to allow disputes between parents and schools to be resolved through a mediation process which must be available at least whenever a hearing is requested. Among the specific requirements of this new section are the following: The mediation must be conducted by a qualified and impartial mediator who is trained in effective mediation techniques. The state must maintain a list of individuals who are qualified mediators and are knowledgeable in laws and regulations relating to the provision of special education. An SEA or LEA may establish procedures to require parents who choose not to use the mediation process to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with a parent training and information center, a community parent center or an appropriate alternative dispute resolution entity which will encourage the use of mediation, and explain the benefits and the process of mediation to parents. The state shall bear the cost of the mediation process, including the costs of meetings described above. It is important to note that the law does not mandate mediation—it requires that mediation be voluntary, and that it not be used to deny or delay a parents right to a due process hearing or any other rights. Mediation Survey Responses All fifty states plus two non-state jurisdictions (Palau and the Department of Defense Schools) responded to the mediation survey. Responses are summarized under each of the eight items on the survey. Item 1 - Date mediation system implemented by the state. The 52 responses to this item yielded the following pattern of mediation system implementation: 6 between 1975 and 1979 10 between 1980 and 1985 13 between 1986 and 1990, and 15 between 1991 and 1996 8 no mediation system before 1997 Item 2 - Specific qualifications established for mediators. A majority of respondents reported that a specific set of qualifications have been established for an individual to serve as a mediator—in only 11 states is this not the case. The most common qualification is the completion of a specified number of training hours in mediation and in special education and related services. The number of training hours required ranges from 16 to 40 hours, with the average being 25 hours. In most states, training is provided by the state’s department of education. The most extensive requirements are in Texas and Kentucky. Texas requires mediators to have 40 hours of training, 2 years of experience, and a masters degree with an emphasis in special education, education, counseling, or a related area; Kentucky requires a bachelor’s degree and 2 years of professional experience as well as knowledge of special education. Item 3 - Ongoing training and support for mediators. One hundred percent of the survey respondents reported that they provide mediators with initial training and ongoing support. Training ranges from one to five days in length conducted annually, in addition to monthly or quarterly meetings. Training is designed to extend and refine mediator skills, as well as an opportunity to discuss emerging issues in special education mediation. Some states also require mediators to earn continuing education credits. Item 4 - Funding sources used to pay mediators. Almost all respondents reported using IDEA Part B funds to pay mediators. Four use only state funds, while six states use a combination of sources including IDEA Part C funds, LEA funds and CSPD funds in addition to Part B and/or state funds to support their mediation systems. The DODEA is unique—it is supported entirely by Department of Defense funds. Item 5 - Agency responsible for managing the state mediation process. In most of the states, the mediation process is managed by the SEA, often in a division of special education or special services. Seven states manage their mediation process jointly with another state agency, usually a conflict resolution office or a division of the state’s legal system. For example, the Michigan mediation process is run by the Michigan Supreme Court, State Court Administrative Office. Some joint management arrangements are based on informal coordination, while others are formalized in interagency agreements. Five states reported providing mediation through contracts with non-SEA entities. They are: a) California with the McGeorge School of Law; b) Delaware with the University of Delaware Office of Conflict Resolution; c) Georgia with the Justice Center of Atlanta; d) New York with the State Dispute Resolution Association; and, e) Washington with Sound Options Mediation Systems. Item 6 - Optional SEA policy that requires parents who choose not to use the mediation process to meet with a disinterested party. (New IDEA 97 provision). Only two of the 52 respondents have enacted this requirement—Arkansas and California. Massachusetts commented that they see such meetings as a way to help parents understand mediation in order to make an informed choice about whether to use it. New York commented that current practice is for districts to urge, recommend, advise, or request a parent to meet with a disinterested/neutral party. Others encourage this practice, although it is not required. Nebraska commented that it was their experience that the LEAs are two to seven times more likely to refuse to mediate than parents. Item 7 - Optional LEA policy that requires parents who choose not to use the mediation process to meet with a disinterested party. (New IDEA 97 provision) Only California indicated awareness of an LEA that has established a policy requiring a parent who refused mediation to meet with a disinterested party. The responses of states to questions 6 and 7 indicate that such a mandate has not been a part of mediation systems to date. It remains to be seen whether states will use this dispute resolution tool in the future. Item 8 - Additional comments. SEA respondents added comments on a variety of points related to mediation systems: Many made positive remarks on their perception of the value of mediation, and shared data on their rates of success in reaching settlement agreements. California and South Dakota underscored the need for effective and ongoing mediator training, especially due to staff turnover. Nebraska emphasized the need to collect uniform, relevant data across the country on mediation, hearings, outcomes, complaints and the costs involved in each. The Tennessee respondent suggested that, although participation in the process is voluntary, a mediation agreement should be binding. The Department of Defense noted the importance of training all educators in mediation skills that can be used in daily conflict resolution and avoid the need for formal mediation. The New Mexico SEA staff stated that the real sources of conflict between parents and schools most often have more to do with attitudes, communications and emotions than with regulatory compliance. Formal adjudication, therefore, rarely addresses the real issues. They believe that third party assistance should be made available as early as possible to prevent disagreements from escalating into formal disputes. Florida noted that many of their mediators are employees of LEAs, and expressed hope that the final IDEA Regulations will not prohibit the assigning of those individuals as mediators. New Hampshire schedules a mediation session automatically as soon as a due process hearing is requested and, if mediation is rejected, a "pre-hearing conference" is held in lieu of the mediation session. Additional materials provided by respondents: Fourteen states provided copies of brief documents such as flyers that they use to acquaint people with their mediation systems. In addition, the following substantive materials were sent with state survey responses: Massachusetts: When Parents and Educators Do Not Agree: Using Mediation to Resolve Conflicts About Special Education. Description of Advisory Opinion Process: When a due process hearing is requested, both parties can agree to this process whereby each side gets one hour to present its case before a Hearing Officer using documents and witnesses. The Hearing Officer then issues a brief (2-3 sentences) non-binding advisory opinion that parties may use this to assess their respective positions and decide on next steps. Nebraska: Office of Dispute Resolution Manual of Standards and Ethics for Center Mediators, Directors and Staff. Copy of interagency agreement between the Department of Education and the Office of Dispute Resolution. Nebraska Mediation Option: Four Year Comparison 1994-98. Nevada: Nevada Mediation System for Early Intervention and Special Education, a joint publication of the Departments of Education and Human Resources. Oklahoma: Supreme Court of Oklahoma Mediation Training and Resources Manual. Pennsylvania: Guidelines: Special Education Mediation Services. References Ahearn, E. M. (1994). Mediation and due process procedures: An analysis of state policies. Alexandria, VA: National Association of State Directors of Special Education. Ahearn, E. M. (1997). Due process hearings: An update. Alexandria, VA: National Association of State Directors of Special Education. Schrag, J. (1996). Mediation and Other Alternative Dispute Resolution Procedures in Special Education. Alexandria, VA: National Association of State Directors of Special Education. * Department of Defense Education Activity Palau View Summary of Survey Responses.** "This report was supported in whole or in part by the U.S. Department of Education (Cooperative Agreement No. H159K70002). However, the opinions expressed herein do not necessarily reflect the position or policy of the U.S. Department of Education, and no official endorsement by the Department should be inferred."

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State Mediation Systems - A NASDSE Report