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If parents and school districts could access a less damaging, less polarizing and more responsive process, they might be willing to use it sooner, with resultant savings in time, emotions and dollars for all concerned. A community-based team conciliation model may address problems inherent in these dispute resolution methods and provide an important alternative for resolving special education conflicts.

In examining of options currently available to families and schools who disagree, four important considerations drive the development of a new model. An ideal dispute resolution process:

• addresses mutual concerns without doing additional harm to individuals and relationships;
  
  
• allows parents and schools to make constructive, ongoing contributions to resolutions that affect them;
  
  
• values time and money as precious resources and uses them as sparingly as possible; and
  
  
• is responsive to the needs of diverse populations.

This paper describes an alternative to the options parents and educators currently have when they do not agree. This alternative honors and seeks to preserve or restore relationships between parents and educators in order to enhance those partnerships which are so vital to every student's educational program.

The Model

The Direction Service Ombudsperson Project (the Conciliation Project) has been testing an adaptation of a team conciliation model developed by the Community Board Program of San Francisco, Inc. (CBSF). This model was developed in the late 1970's and disseminated to many communities throughout the country, especially on the West Coast during the 1980's. CBSF's work with disputes in San Francisco's diverse neighborhoods successfully demonstrated a model for using trained volunteers to assist people in conflict to work together. The team model has many attributes and application possibilities which recommend it as a useful model for this Project, including the fact that people in many communities have received CBSF training and the basic model is already being used in some community dispute resolution centers.

The model as adapted uses a team of trained volunteers to facilitate a structured process of interest-based negotiation⁽²⁾ between a parent and an educator in order to reach a mutually agreed upon resolution to a dispute about a student's education. The interests (needs and desires), not the "rights," of the participants become the focus for creating an agreement.

"Mediation" has become a popular term for a variety of dispute resolution processes, many of which are quite dissimiliar when carefully examined. The values, principles, methods, and goals of these various dispute resolution processes offer insight into their potential benefits and limitations.⁽³⁾ Some processes emphasize settlement over empowerment. In some processes the third party serves an evaluative, and sometimes decision-making, function; in others the third party's role is solely facilitative. In some processes settlement terms are based on the parties' "rights, " in others participants craft an agreement based on the more subjective concept of interests or underlying needs.

Many forms of "mediation" do share values and characteristics with the process described here. Nevertheless we have chosen to call this process "conciliation" to distinguish it from other forms of dispute resolution that differ from it in fundamental ways. Use of the word "conciliation" brings attention to the value of improving or mending the relationship as well as reaching an agreement. We found that both parents and educators whom we contacted about "mediation" responded to us on the basis of their experience with or what they had heard about "mediation." In each case, use of the word "mediation" to describe the process detailed here was at least confusing and, in several cases, created resistance even to learning more about it.

The goals and interests reflected in conciliation help to distinguish it from and highlight similarities to other alternatives. These include:

• empowerment
  
  
• collaboration
  
  
• respect
  
  
• acceptance
  
  
• future focus
  
  
• confidentiality

Conciliation is a voluntary process; no one is required to participate. The primary parties must be willing to meet and discuss their concerns in an effort to negotiate a mutually satisfactory agreement.

Conciliation is collaborative. The process provides an opportunity and structure for the participants to work together to create solutions which meet their respective and mutual interests and needs.

Conciliation is empowering. The parties are the decision makers and can explore issues and design solutions which are responsive to their concerns. The conciliators have no decision making authority and will not impose a solution or judgment on the parties. This process is not an adjudication process and is not designed to determine legal rights. Parties are not limited by rules of evidence or relevance.

Conciliation is not a process for assigning blame or determining fault. Who's right and who's wrong are not appropriate issues for conciliation. Participants in conciliation are asked to step out of a "win/lose" into a "win/win" paradigm. Coercion, threats, giving in, withholding, doing battle, no holds barred, and other strategies for winning at all costs are not legitimate means for reaching resolution. The "win/win" value of conciliation and the structure of the process encourage the parties to move from positions as adversaries or opponents to a focus on communication, cooperative problem solving and the development of a mutually acceptable resolution.

Conciliation is confidential to the extent that the parties agree to maintain confidentiality. Often the ability to limit the "audience" and public scrutiny can help disputants safely explore sensitive issues such as racism, fair treatment, trust, power, and control.

Conciliation focuses on communication and creative problem solving. The conciliator's task is to help the parties define the problem, explore and learn about each other's interests, and work together to develop a solution, plan of action, or agreement for future behavior or interactions. Conciliation goes beyond "nothing but the facts" to an exploration of the concerns which underlie the conflict and the issues that must be addressed to create a lasting resolution. Participants in conciliation are encouraged to use effective communication skills (active listening, paraphrasing, non-judgmental questioning, collaborative negotiation techniques, etc.) and may leave the conciliation with an enhanced ability to solve problems independent of the conciliation process.

Conciliation is future oriented. Sharing information about past events and perceptions may help each participant understand the point of view and reasoning of the other and create some common understanding of the past. It is not necessary to agree about the past; in fact, people rarely will. The past is used only as a guide and background for developing agreements about future interactions.

Experience in other fields with dispute resolution processes that share these characteristics has shown that parties themselves can create durable, relevant agreements that are more responsive to their needs than a hearing officer or judge. Parties to a conciliation not only solve problems, but also repair damage to relationships and re-establish the trust that is required to produce a satisfactory and long-lasting agreement.

When applied to the area of special education disputes, the general benefits of conciliation become even more apparent. Conciliation offers parents and schools the opportunity to learn from each other and work through their differences so they can agree on a plan and work together toward their mutual goal of providing the student with an appropriate education.

Conciliation offers the opportunity for parents and educators to cooperatively attack a problem or misunderstanding instead of attacking each other. Being able to work together to solve a problem helps mend broken relationships and establish a foundation on which to build in the future. The costs of an adversarial due process hearing can be enormous in dollars, emotional energy, and time. Conciliation offers the opportunity to reduce all of these costs and move toward "getting on" with the job at hand, that of educating and parenting a child with special needs.

Conciliation, however, may not be appropriate for all special education disputes. Circumstances which would make a situation inappropriate for conciliation include:

• one or both parties require(s) a legal interpretation of the IDEA or other applicable law;
  
  
• the goal of the parent is a personnel change;
  
  
• any of the concerned parties are unwilling to participate in a collaborative, problem-solving process; or
  
  
• there is an imbalance in capacity for which the conciliators and the parties cannot compensate sufficiently to protect the integrity of the conciliation process (e.g., diminished mental capacity, mental illness).

The People

Ideal volunteer conciliators have some common characteristics and attributes. They are people interested in contributing to peaceful dispute resolution in their community. They bring understanding of local values and customs. Their life experience aids them in understanding and empathizing with participants in the conciliation process. While they may have special education experience either as a parent or as a teacher/administrator, this expertise is not required. In fact, expertise or experience with special education and associated biases may make it more difficult for team members to remain impartial and refrain from offering solutions to the disputants.

The ideal cadre of trained volunteers is as diverse as possible, including:

• men and women,
  
  
• ethnic diversity,
  
  
• cultural diversity,
  
  
• educational diversity,
  
  
• socio-economic class diversity,
  
  
• generational diversity, and
  
  
• other characteristics which reflect the community.

A highly diverse group of volunteers is a rich resource for the composition of sensitive teams. Parties often appreciate having their age, gender, socio-economic background, and other aspects of personal culture (e.g., single parent, alternative lifestyle, religious affiliation) reflected in the team members. For example, it may be important that some of the conciliators are parents or that the team reflects some of the ethnic or cultural identities of the parties. If the conciliation involves a bi-cultural, bilingual parent, the team can include members who share those characteristics. When team composition contributes to a sense of trust in the process, the first step has been taken in creating an environment where collaborative work can be done. Diverse teams also benefit enormously from the differing perspectives on communication and problem solving found among team members. Conciliation assumes that discussions about and resolutions to disagreements can best be facilitated by individuals possessing a wide array of communication skills, talents and strategies that often are not found in a single individual.

An additional benefit of a multi-person team model is the ability to offset individual strengths and weaknesses and for newly trained volunteers to work with more experienced team members. Both the training of conciliators and the conciliations themselves create opportunities for individuals from diverse segments of the community to come together in a common effort. In those joint efforts, each person teaches and learns from the others. The result is increased understanding of both self and other, a result also cultivated between the parties through the conciliation process. As volunteers do the work, they continue to develop their skills, and the community's capacity for conflict resolution is increased by the presence of individuals with well-developed conciliation skills. In this way the training, the functioning team and, in fact, the entire dispute resolution program can represent different levels at which an alternative approach to conflict resolution is being practiced in a community.

Conciliation, like mediation, is practiced in many forms including use of a single conciliator, co-conciliators, or a conciliation team (the proposed model). Figure 1 contrasts some potential benefits and limitations of single conciliator models with team/co-conciliator models.

* Co-conciliation differs from solo conciliation more than co-conciliation differs from using a team of conciliators. Generally the difference between team and co-conciliation is one of degree; use of 3, 4, or 5 conciliators, rather than 2, multiplies both the benefits and the costs in proportion to the number of people on the team.

In summary, conciliation requires the voluntary and cooperative effort of everyone involved to be successful. The process creates the opportunity for people to be heard, to hear "the other side," to recognize areas of common concern and belief, and to work collaboratively to create agreements about areas where there is disagreement. The process supports disputants to creatively and jointly develop a plan for creating a future situation that is acceptable to everyone involved. Conciliation can be a first step toward healing relationships that have been strained or even hostile. When parents and schools can bring together their respective knowledge about a child for the benefit of that child, everyone reaps the rewards.

The conciliation process is a structured, three-part process of conflict resolution: Case Development, Team Process, and Follow-up. Each of these stages is necessary to insure a voluntary, mutually understood, effective and durable agreement.

Case Development

When a parent or school person contacts Lane County Direction Service Conciliation Project with questions about the process or to request assistance, the conflict resolution process begins. Case development is the least appreciated and perhaps the most important part of the conflict resolution continuum. Disputes are often resolved during case development, thus eliminating the need for a face-to-face conciliation. This may occur because of the active listening and clarifying done by the case developer. Sometimes exploration of options produces a possibility previously unidentified that the parent or educator wishes to pursue.

The case developer (see Appendix A for job description of the case developer) begins to define a relationship between the Project and the initiating party and models the values--for example, respect, empowerment and collaboration--of the conciliation process. The case developer uses the same communication and problem solving skills that the conciliators use in a face-to-face conciliation process: active listening, paraphrasing and reflecting back, focusing on the future, and not making decisions for participants. Thorough and careful case development ensures that the participants come to the process voluntarily, with a minimum of apprehension and with the seeds of a sense of ownership in the outcome.

Successful case development will assist potential conciliation participants to:

• clarify goals;
  
  
• evaluate alternatives to the conciliation process;
  
  
• determine what information they need to effectively participate in the conciliation process; and,
  
  
• determine whether they have sufficient capacity to effectively participate in the conciliation process.

Part of case development is helping parties become aware of their goals and encouraging them to broaden their thinking about the type of agreement that might meet their needs. Interest-based negotiation works best when there are a number of interests which can be accommodated in different ways, allowing more flexibility in designing a resolution that is satisfactory to all parties. People also need information about how the process works, what they must do to use the process, and how it may benefit them. Helping people think about how they can best use conciliation and assisting people identify information they may need in order to participate effectively are components of case development.

Case developers assist the parties to evaluate their alternatives to conciliation. The parties' real and perceived options affect both their motivation to negotiate and the type of agreement they will find acceptable. Part of helping people determine appropriateness involves educating the parties about the type of process the Project can offer and the kinds of results that they can expect to get by using this process. For example, if a party wants a legal precedent, s/he must use the legal system. If the party wants an apology, the legal system usually will not produce that result whereas conciliation might (although that will depend entirely on the parties).

In the contact with the initiating party, the case developer explains the premises of the conciliation process, including:

• it is voluntary and collaborative;
  
  
• the parties involved maintain control over all decisions and agreements;
  
  
• the focus is on the future and creating a solution; and,
  
  
• the goal is to reach a mutually satisfactory resolution, not to establish blame or fault.

The case developer helps the parties decide who will participate in the conciliation. The case developer asks the initiating party who the other involved parties are, who should be included to make potential solutions work, and who could block or cause the failure of a solution. The case developer then contacts the other involved parties, shares information about the conciliation process and this particular request for conciliation, gathers information from their perspectives on who is needed to create a solution and who could make a solution fail. Usually it is preferable to have only one educator and one parent--the two people who are most involved in the conflict. The process can then focus on both the conflict and the relationship where the conflict is most strongly expressed.

The case developer gets enough information to bring parties together and to ensure that barriers to useful agreements are addressed and considered. In-depth understanding of problems is not necessary nor is contact with everyone who might be interested or have an opinion. As part of this process, the case developer listens for problems and concerns with past efforts to address the situation that will be included in the team briefing to ensure that the end agreement anticipates likely obstacles to implementation. If both parties agree to the conciliation, each signs an Agreement to Participate in Conciliation and Confidentiality form (Appendix C - Forms).

Once both parties have agreed to participate in a conciliation, the case developer may schedule the conciliation and convene a team of conciliators or may ask the team convener to do so. (See Appendix A for Job Description of team convener). The team convener is responsible for:

• determining a date and time convenient for all parties;
  
  
• finding a suitable, neutral location and arranging for room setup;
  
  
• making other arrangements necessary for the conciliation to occur;
  
  
• convening an appropriate team reflecting balance in whatever dimensions are important to the participants (gender, age, culture, training, etc.);
  
  
• screening team members to determine any actual conflict of interest or the appearance of a conflict of interest; and,
  
  
• briefing the team members about the dynamics and concerns of the parties..

Team Process

Prior to the arrival of the parties, the team meets with the case developer to prepare for the conciliation. During this briefing, the case developer gives the team information about the parties and the conflict, as well as any information about dynamics, history, and past efforts to address the concerns motivating the conciliation. The team members discuss how they will work together and any concerns they have about this particular conciliation.

During the entire process, team members model communication and conflict resolution skills. Team members often discuss how they should proceed, who should lead during each step of the process, and different approaches to helping the parties move through the process. This is done in the presence of the parties, an approach which de-mystifies what the team is doing, reveals the commitment of the team members, demonstrates problem solving and collaboration in action and sets the tone for the parties to begin working together in a similar way.

The basic problem-solving process is preceded by an Opening and followed by a Closing. The intervening steps of the process are:

1. Identifying Issues
   
   
   
2. Understanding Interests
   
   
3. Problem-solving and Reaching Agreement

A more detailed description of each part of the process follows, along with an explanation of the goals of each step and a description of the team members and participants interactions during each step.

The Opening

During this Step the conciliators do most of the speaking and set the tone for the conciliation. Team members introduce themselves and indicate that they are volunteering their time out of a commitment to assist the disputants to reach a mutually agreeable resolution. Awareness that the team members are uncompensated often intrigues parties and encourages them to trust the unfolding process. The conciliators explain the way the team will work together and describe the process the parties will be asked to use:

• the steps
  
  
• the direction of communication
  
  
• the goals during each step

They emphasize the characteristics of the process:

• voluntary
  
  
• confidential
  
  
• collaborative
  
  
• decisions made by the parties, not the team
  
  
• focus on the future and a workable solution, rather than on the past to fix blame.

The team asks for each party's agreement to follow ground rules including respectful treatment of each person by every other person and allowing each person to speak uninterrupted.

Step 1 - Identifying Issues

In this Step, the parties are asked to speak only to the conciliators and to offer their perspective on what has brought them to conciliation. Each speaks in turn to the team, and team members ask clarifying questions as well as acknowledge and validate each person's experience. The parties are asked to refrain from talking to each other and to focus on helping the team understand the conflict from each of their perspectives. The goals of Step 1 are:

• for the parties to be able to articulate their concerns;
  
  
• for everyone to understand what issues need to be resolved in order for the parties to reach an agreement;
  
  
• for the team to begin to establish rapport with each of the parties; and,
  
  
• for the parties to begin to understand the interests (often intangible, basic needs for respect, safety, face saving, preserving reputation) which must also be satisfied for the parties to resolve the issues (often substantive claims about placement, treatment, or services).

Step 2 - Understanding Interests

When the team members feel they understand the conflict from each party's point of view, the team assists the parties to talk directly to each other. Parties are asked to continue to treat each other respectfully as they share their feelings and the emotional content associated with the disagreement. A communication technique such as paraphrasing may be used.

One of the interests or issues identified in Step 1 is selected, and one of the parties is asked to speak to the other about the issue or interest. The team members ask each party to refrain from responding to what the other is saying and to listen carefully.

The goal of Step 2 is for each person to be heard and understood by the other. The team members tell the parties that the goal is to understand how the other person sees the situation; not to agree with, only to understand, the other person's perspective. The team helps each person accurately to reflect what the other has said and to verify that the summary has included all the essential substance and emotion of the communication. If not, they repeat the procedure. Once the listener has accurately reflected what the other has communicated, the listener may respond to what the speaker said, thus becoming the speaker; the new listener is asked to listen, repeat, verify accuracy and only then respond. This procedure slows down the communication and changes what has usually been two monologues with no listeners into a true dialogue. It is essential before concluding Step 2 that each party believe that his or her perspective is completely understood by the other party.

During both Steps 1 and 2 there is often new information which one or both parties had not known before. The team will highlight any such information; it can often be a stepping stone to an insight. The illumination of new information may be used to "save face" and may be followed by an acknowledgment by one or both parties that they might have behaved, thought or felt differently if they had known that information. An indication that each party is prepared to accept some share of responsibility for the current situation is usually a sign that each is prepared to contribute to a resolution and the team will ask the parties to move into Step 3.

Step 3 - Problem Solving and Reaching Agreement

This Step ideally finds the parties approaching the situation as a joint problem that needs to be solved jointly. The team guides them into an option generation process, often "brainstorming" where evaluation is off-limits and creativity is encouraged. The goal is to expand the options as much as possible before beginning an elimination process, to ensure that a potential solution is not overlooked. Then, referring to the interests that were uncovered in Steps 1 and 2, each option can be evaluated to determine whether it will address the essential concerns of each party. Options that fall short of this test are unlikely to produce a mutually acceptable and durable resolution.

At this point in the process the parties may return to anger, frustration and blaming after seeming to reach a calmer, more hopeful state in Step 1 and 2. During the process of talking about options, participants can slip back into "zero sum" thinking (what you gain must come from my share of the pie and vice versa) which often leads naturally to a sense of being threatened and needing to defend or attack. The team will remind the participants of the progress made so far in gaining understanding and working together and encourage continued effort toward a resolution that will meet each person's most important concerns.

During Step 3 a participant may allude to or include a new issue in the list of problems which need to be resolved. The team will address this new issue by cycling back to Step 1 to gain information and Step 2 to facilitate understanding of this new issue before looking for options which address the interests underlying it.

When potential solutions emerge from the options, the team helps parties carefully consider the options from each one's perspective. How will this option meet the other party's interests? If it will not, what other option must be included in order for the other party to find the solution acceptable? At this point in the process, team members also review any potential obstacles identified during case development to be sure that they are considered in the agreement. The team members:

• assist the parties to be specific about the exact details of their commitments;
  
  
• act as agents of reality, testing each option against what is realistic for each party to do;
  
  
• act as devil's advocates, giving voice to concerns which may threaten the durability of the agreement; and,
  
  
• help the parties decide what to do if one or the other does not comply with the agreement or if unanticipated problems occur.

When a final agreement has been reached, one of the team members writes an agreement in precise terms. The agreement includes the parties' names and specifies who will do what, by when and how. A time is often set for a follow-up. Each party signs the agreement and usually at least one of the team members signs as a witness. Each party is given a copy of the complete signed agreement.

The team then closes the conciliation session with appreciation to the parties for their willingness to try conciliation, for their hard work during conciliation, and, if they reached a resolution, for their commitment to following the agreement they have reached together.

Follow-up

The third part of this conciliation model is the follow-up. The case developer checks with each party to see if the agreement is being followed or if there is a need for a "tune-up" to address unanticipated problems or second thoughts by one or both parties. This is also an opportunity to ask each participant to assess his or her satisfaction with the process and the outcome of the conciliation and whether the solution, if honored, has resolved the dispute.

Accommodating Cultural Differences

Cultural, ethnic, and other individual differences significantly influence the choice, the use, the appropriateness, and the effectiveness of any dispute resolution process. Asking participants about their concerns, how they deal with conflict, how they react to direct confrontation, how they feel about the public nature of conciliation, what their attitudes are towards others helping them to reach a resolution (as well as many other questions) can help determine appropriate accommodations for differences..

The Golden Rule, "Do unto others as you would have them do unto you," can create misunderstandings and conflict where people do not share common preferences, perceptions and values. "Do unto others as they would have you do unto them" has been called The Platinum Rule and provides important guidance in cross-cultural communication and dispute resolution. Using your own preferences and values as a guide for your behavior may lead to misunderstanding. How others want to be treated is a more trustworthy guide to what they need. Being aware of and sensitive to the fact that we all don't view the world the same, don't react to conflict the same, and don't all have the same attitude towards authority or outsiders can make the difference between being successful and being disrespectful.

Using the expertise of cultural liaisons--people outside the particular conflict but a member of the same community as a disputant--can also be helpful. People willing to provide information about how a community resolves conflicts and what approaches are likely to be best received, can be extremely helpful. It is important that this information be accepted and used in a respectful and honest way. Developing relationships outside of one's own culture usually takes more time, more experience, more trust building than relationships within one's own culture.

In all situations, but especially in cross-cultural or cross-ethnic situations, our interpretation of issues and behavior may be inaccurate. When a conciliation involves parties from differing cultures (socio-economic, racial, ethnic, gender, etc.), conciliators need to ask questions and rely on the parties to provide contextual as well as relational information. Asking questions about the parties' perspectives of conflict, school/parent relationships, parenting styles, discipline styles and techniques, etc. can help everyone better understand the parties' relationship and other issues that are important to mending the relationship and creating a workable agreement. Conciliation lends itself well to disagreements with multi-cultural factors since its goals include being heard and understood, and supporting the participants to create solutions responsive to their particular interests.

The Conciliation Project has developed relationships in the Hispanic/Latino and Native American communities. Our experience with the differences between these two cultures and mainstream culture have yielded some useful insights. The following are some examples of cultural differences commonly held within these communities which are different from those held by "mainstream" culture. These are offered recognizing that all individuals within a group do not adhere to the same values and that these examples cannot be used as hard and fast rules, but are simply illustrations of the differences which may be present.

• In both the Hispanic/Latino and Native American communities, who you are as a person, what you have contributed to the community, and what your personal values are far outweigh academic or other credentials.
  
  
• Time is often viewed differently. Moving quickly, "getting the job done," is not as highly valued as the relationships between people. We have seen examples of this in both the Hispanic/Latino and Native American communities.
  
  
• Families are seen in a broader sense than the "mainstream" nuclear family. Family extends to aunts, uncles, grandparents, and long-term, close friends. This different understanding of family impacts the way children are reared, disciplined, and instructed

Other issues and differences affect the treatment of African-Americans, Asian-Americans, and other groups that have been the targets of discrimination. As we have developed team conciliation, we have emphasized cultural relevance and sensitivity. The principal mechanism of assurance has been the active recruitment and involvement of people from different communities in training, case development, and conciliation team composition.

Conciliations

In order to test the proposed model, a goal was set to complete six conciliations in the spring of 1995. The developmental phase of the Project had involved the Special Education Directors for the three largest school districts in the county. Each had expressed enthusiasm about the potential of the process and assured us that there were conflicts which they were prepared to refer to the Project. With the commitment of these Special Education Directors, we anticipated no difficulty in identifying appropriate disagreements for referral.

Volunteers from the community who were previously trained to use the CBSF model in neighborhood disputes agreed to compose the teams for the initial conciliations. These volunteers were given a brief orientation on issues specific to special education disputes, including: