Parents and school districts who can’t reach a resolution on IEP issues can access another option before resorting to due process. 1997’s IDEA regulations required states to offer mediation to resolve disputes for which there was a due process hearing request. Now 2004’s revision of the law opens up mediation as a possibility for all disputes, not only those conflicts involving a request for a due process hearing. .
A request can be made by either the school or the parents once mediation is agreed upon by both parties. Mediation is a voluntary process that, if successful, ends in a written agreement that is legally enforceable. Both sides must be willing to participate, and in most cases, “give up something” when coming to an agreement in mediation.
Mediators come from a variety of backgrounds including law, education, social work, psychology, counseling and education. All have specific training in educational needs of children with disabilities, but not necessarily deafness or deaf education. Mediators are independent contractors with the state department of education in order to remain impartial.
The mediator does not take sides in a facilitated discussion, but rather clarifies each party’s point of view. The mediator does not provide legal advice. He or she may meet separately with parents and the district to get background information, and may send out a list of issues prior to the meeting as well. Both parties are encouraged to think about creative options for resolution beforehand that the other party might find acceptable. Mediation is a future oriented process that doesn’t seek to place blame for issues but to create alignment between home and school for a child with special needs. Mediators can stop the meeting so that either party can “bounce an idea” off the mediator in private, and can convey options or the willingness to reach an agreement during the meeting if that is strategically helpful.
Sessions can last all day or occur over multiple sessions, if needed. Topics often include disagreements over assessments, placement, method of instruction, least restrictive environment, related services, or modifications/accommodations.
Should an attorney come to mediation? Some parent attorneys say “yes.’ Parents don’t have the same level of experience or sophistication with the legalese of such a meeting, and aren’t always aware of their options, such as requesting a specific mediator, location, or structure for the meeting. On the other hand, some school districts will not participate in mediation if a parent attorney is present. School district attorneys sometimes agree to go only to gather information in preparation for a due process hearing, though the mediation discussion is confidential and can’t be used in court. An advocate may also be of great assistance to parents in framing their issues and relaying the experience of other families in the state and the district in question. In general, the list of attendees should be as short as possible to keep the discussion focused. People should attend who have decision-making authority, can provide relevant information to the issues, and provide legal information or support, as needed.
Definite plusses to mediation include the timeliness of possible resolution, the possibility of a win-win outside the more adversarial courtroom environment, and the lack of cost outside of the parents’ contracting for legal representation. Asking for and participating in mediation does not delay or deny anyone’s right to a due process hearing if resolution is not reached. If a family feels that their issues with a school are clearly a violation of FAPE (a free and appropriate public education), they are not likely to find mediation beneficial. Also, mediation discussions are confidential, so if a district is clearly violating the special education regulations, a resolution will potentially only help the one family involved. For families who face disagreements that are not as clearcut, mediation can be a relatively speedy, positive way to reach common goals.
For more information on the law, see The US Department of Education website at http://idea.ed.gov/. ~
By Sara Kennedy
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