Mediation Opens Door to Amicable Dispute Resolution
By: Council for Exceptional Children (2005)
Please Note: This article was published prior to the passage of the Individuals with Disabilities Education Act of 1997. The new law (P.L. 105-17) enacted on June 4, 1997, requires State Education Agencies (SEAs) and Local Education Agencies (LEAs) to ensure that procedures are established and implemented to allow parties to disputes to resolve disputes through a mediation process. The mediation process must be voluntary on the part of the parties, not used to deny or delay a parent's right to a due process hearing or to deny any other rights; and conducted by a qualified and impartial mediator trained in effective mediation techniques. An LEA or SEA may establish procedures to require parents who choose not to use the mediation process to meet with a disinterested party who is under contract with a parent training and information center or community parent resource center or an appropriate alternative dispute resolution entity. The State must maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services. The State must also bear the cost of the mediation process. An agreement to the dispute in the mediation process must be set forth in a written mediation agreement. Provisions have also been added to ensure that discussions that occur during the mediation must be confidential and not used as evidence in due process hearings or civil proceedings, and the parties may be required to sign a confidentiality pledge.
Once, when parents of a student with a disability and schools disagreed about an educational decision or placement, they would resolve their differences in a due process hearing. Today, more and more often, schools, districts, and parents turn to mediation to find workable solutions to disagreements. Mediation in special education is a process in which a neutral third party, the mediator, helps schools and parents reach an agreement about the educational placement, program, identification, evaluation, or other services to be provided to a child with exceptionalities.
Unlike due process hearings, mediation can help bring schools and parents closer together and pave the way for future positive relationships. It often results in educators and parents reaching an agreement that pleases both parties and helps each party gain a deeper understanding of the other's views- at a fraction of the cost of due process hearings.
Thus far, mediation has proven to be a viable alternative to due process. It has shown parents and educators that they can work together to find common ground and develop a plan that works best for the student.
CEC supports the use of mediation said Nancy Safer, CEC's Executive Director. Mediation offers numerous advantages to all parties concerned, not the least of which is that parents and schools learn to trust each other and work together as they develop an educational plan that is appropriate for the student. We hope to see mediation used more often to resolve disputes concerning children with disabilities.
How Does Mediation Differ from a Hearing?
Mediation is an informal process that is voluntary and confidential. During mediation, all parties try to understand each other's views and reach an agreement together. Each party is encouraged to speak openly about issues that concern them. As mediations are confidential, what is said cannot be used in a hearing. The only record that is kept of a mediation is a written agreement, if there is one.
A hearing is a formal legal proceeding. Attorneys or representatives for opposing parties present evidence to a hearing officer, who makes a decision and issues a written order. The decision is based only on the record of documents and testimony presented at the hearing. The record can be used later if an appeal is filed with the state or a lawsuit ensues.
How Does Mediation Work?
Often a mediation hearing is heard on neutral ground, such as a hotel meeting room or at a meeting room in another district at a time that is convenient for the parent and the school personnel. The school system sends a representative with decision-making power and possibly someone who knows the child, such as a teacher. The child's parents attend; and in some states, they can ask others who can contribute to the mediation such as a parent advocate, related service provider, or physician to accompany them.
Though mediations vary according to the state model used, most follow a general format. First, the mediator gives an introduction explaining his or her role and the mediation process. He or she will also state the basic issue(s) to be addressed. Second, there is an initial joint session, which is the first opportunity for the school and the parents to share and gather information. During this time, each party states its concerns and ideas without interpretation. Third, the mediator may call for private sessions. Here the mediator talks to each party alone. He or she may further explore sensitive areas, help define more clearly the educational goals for a student, or help develop options for reaching an agreement. Fourth, other joint sessions may occur during which the school staff and parents move closer to an agreement. Finally, the two parties reach an agreement. Some agreements may be set; others may be an initial agreement in which the two parties come back and reevaluate in a certain time period.
Many mediations take a good part of the day; but depending on the issues to be resolved, some can last longer.
What Happens to the Student During Mediation?
Unless the school system and the parents agree to another placement on an interim basis, the student involved in the dispute should remain in his or her current educational placement until a solution has been reached.
How Does the School or Parent Decide to use Mediation?
A school or parent may request mediation at any time. The school may request mediation if it sees that it and the parents are having difficulty resolving differences, or the school may suggest mediation if a parent requests a due process hearing. However, mediation never precludes a parent's right to a hearing.
Who Attends the Mediation? Can Advocates and/or Attorneys Participate?
Again, this varies from state to state, but generally, the parent(s) and representative of the school district attend medication. Although some states allow other representatives (such as an attorney) to be in the room or in close proximity during mediation, to foster better communication, the parties should speak and represent themselves.
What is the Teacher's Role in Mediation?
Most often, a teacher will be asked to prepare materials, such as documentation, paperwork he or she may have. Although not the norm, the school may request that the teacher attend mediation, as he or she knows the student.
How Should Participants Prepare for Mediation?
To prepare for mediation, each party should:
- Outline its position in the dispute.
- Determine what it wants from or is proposing for the other party.
- Develop a list of alternatives or solutions that it could offer to settle the dispute, and prioritize the list from most important to most willing to give up.
- Ask others to react to its position.
- Decide if it needs an advisor (attorney, advocate, consultant, etc.) to assist in reaching an agreement and/or represent its interest. (In some states, each party must act as its own representative.)
- To think about short- or long- term solutions that can be modified after they are tested. Negotiate with the attitude that it is developing an agreement, start with a plan that might work and can be modified as needed.
- Recognize that mediation requires the give and take of ideas.
- Focus on the child's needs.
How Can Parties Involved Make the Mediation Flow More Smoothly?
Mediation works best when both paries practice good communication skills. Each should try to assume an open and inviting body language and be honest about its concerns. Unlike hearings, mediation is a process in which parents can share their emotions concerning their child. Also, both parties should avoid language that blames the other.
What Is the Role of the Mediator?
Although there are differing models of mediation, the roles of the mediator is essentially the same. The mediator helps the participants reach their own agreement. He or she listens to each party's point of view about the problem, reviews records and documents, helps identify issues to be mediated, seeks statements from each party as to its position or points of disagreement, and requests clarification if necessary. In addition, the mediator may share useful information, such as the requirements of special education law or suggest options the parties may not have considered.
Though the mediator helps in the negotiation process, he or she does not make decisions about what anyone must do to resolve the dispute. At the session's conclusion, the mediator will write an agreement stating the names of programs, materials, schools, school personnel responsibilities, and parent responsibilities. Or, he or she will terminate the session if it is evident an agreement cannot be reached or recess the mediation to be reconvened at a later date with new information if that alternative seems necessary.
Is Mediation Required by Law?
No. Although federal regulations as well as many states recognize the value of mediation as a method to help resolve conflicts, it is a voluntary process.
However, in the Individuals with Disabilities Education Act reauthorization bills, Congress has proposed making mediation a required option in due process procedures- a change CEC strongly supported. (See Note at beginning of this article)
What Skills Should a Mediator Have?
Mediators should have a broad range of skills and knowledge in conflict resolution procedures, problem- solving approaches, and communication skills relating to interpersonal relationships. The mediator should also have a sound knowledge of special education, including federal and their own applicable state/provincial laws. Furthermore, since there is no single approach to problem solving in special education, the mediator must be flexible in adapting approaches to each new problem and each different group of personalities, according to a 1984 study by the National Association Directors of Special Education.
Can, and Should, all Disagreements be Mediated?
No. Mediation will not work in every case. There are times when disagreements between parties will not be solved through mutual agreement. Also, mediation will not work if either party has no interest in negotiating. If mediation has been unsuccessful, the mediator advises the parties of their right to request, in writing, a due process hearing if one is not pending. Remember, mediation can occur prior to a hearing, but it cannot delay or deny the parents', district's, or agency's right to a hearing and adherence to prescribed timelines.
States that have embraced mediation as an alternative to due process have had many positive results. They have found that mediation, being less formal, less adversarial, fosters more positive communication between parties. This results in educational programming that is in the best interest of the child.
"My wife and I have been through one fair hearing and two mediations. I will now opt for mediation as the starting point. The use of attorneys in due process is totally uncalled for. We have a good working relationship with the school district, but once we entered the due process and lawyers became involved, barriers were put up between us. It took twice as long as necessary to reach a conclusion."