In 1997, the U.S. Congress added a requirement for all states to make mediation available to parents after they filed a due process complaint. The latest version of the law (IDEA 2004) requires that states make mediation available to parents prior to filing a due process complaint. This continues Congress’ effort to provide ways that schools and parents can resolve disputes at less formal levels than the due process hearing.

Parents who find themselves in conflict with their child’s school regarding special education services should become aware of the specifics of special education mediation. When successful, mediation can help avoid a due process hearing or other more adversarial procedures.

Q: What is Mediation?

A: Mediation is a form of assisted dispute resolution in which participants come together to resolve their differences with the assistance of a neutral third party, in this case, a mediator. Mediation is a confidential process that allows parties to resolve disputes without a formal due process hearing. IDEA 2004 requires that mediation is available whether or not a due process hearing is requested. Either the parents of the public agency (generally, the school district) can initiate the mediation process. However, mediation must be voluntary for both parties.

Q: Who is a Mediator?

A: A mediator is a trained, impartial facilitator who helps school staff and parents resolve their disagreement in an informal setting. IDEA requires that mediation of special education disputes must be conducted by a qualified and impartial mediator and that each state maintains a list of qualified mediators, assign a mediator to a case on a random basis, and bear the cost of the mediation process.

The mediator facilitates discussion, encourages participants to identify and clarify areas of agreement and disagreement, and helps them generate and evaluate options for a mutually agreeable solution. Mediators are trained not to offer opinions or solutions to the issues in dispute but rather to focus on assisting parties to hear one another’s concerns, identify common interests, and seek out creative, mutually agreeable resolutions.

The goal in mediation, with the assistance of the mediator, is for the school staff and parents to integrate these options into a workable solution that is written into a legally binding agreement.

Q: Is there a time limit for requesting mediation?

A: No, IDEA imposes no timeframe within which a request for mediation must be requested. Other dispute resolution procedures are subject to a time limit, so be sure to understand those limits if considering all options.

Q: How long does the mediation take?

A: The mediation process is frequently accomplished in a single session. However, follow-up sessions can be negotiated during the mediation if they are necessary.

Q: Are mediation discussions confidential?

A: Yes, mediation discussions are kept confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding.

Q: Is there a time line for resolving the disagreement?

A: No, IDEA imposes no timeframe within which the disagreement must be resolved. Since the mediator does not resolve the disagreement but rather facilitates the discussion among the parties involved, a resolution is not guaranteed.

Q: What happens when a resolution is reached?

A: When a resolution is reached, the parties execute a legally binding agreement that is enforceable in a district court. The agreement is binding as soon as it is executed.

The mediation agreement must include the following:

• A description of the agreement
• A statement that all discussions that occurred during the mediation process are kept confidential and may not be used as evidence in any due process hearing or civil proceeding that occurs later
• Signatures of both the parent and a representative of the school district who has legally binding authority
• A statement that the agreement is enforceable in state or federal district court.

Q: What happens if a resolution is not reached?

A: If a resolution is not reached during the mediation, both parties retain their right to request a due process hearing at any point during or following the mediation process. However, it is important to remember that there are limitations on the timeframe within which a request for due process can be filed.

A: How satisfied are parents with the mediation process?

Q: There is little research on parents’ perspectives on the mediation process, including their level of satisfaction. One study on the use and effectiveness of special education mediation across seven states, conducted in 2004, found that one third of parents would not use mediation again (Schrag and Schrag, 2004). Reasons cited included parents feeling that the agreements were ineffective, did not enhance their child’s education, or were not implemented by the school. It is important to note that the mediations studied were conducted prior to the reauthorization of IDEA in 2004, which added the requirement for a legally binding agreement that is enforceable in a district court.

A more recent study (Nowell and Salem, 2007) found parents split on their perceptions of mediation. Some thought it a positive experience that resulted in an agreement and enhanced their relationship with school personnel while others found it to have a negative impact on their school relationship and that the school did not comply with the agreement.

Several studies on mediation have noted that the following elements could be improved upon:

·     Balance of power. Many parents have expressed a feeling of being outnumbered. The mediation was attended by school personnel unknown to the parents. While this might be necessary to ensure that someone with decision-making authority is in attendance, care should be taken to bring familiar school personnel to the mediation while limiting the number of school representatives.

·     Crafting agreements. A central aspect of mediation success is the mediation agreement. Agreements should be clearly articulated, detailed, and unambiguous—creating the likelihood that they will be implemented to the satisfaction of parents.

·     Mediator training. Mediators need to be skillful at acting on opportunities presented during the mediation process to improve relationships and trust among the parties.

Learn more about mediation

Your state department of education should have information on mediation, including how to make a request for mediation. Contact your Parent Training and Information Center (see www.taalliance.org for directory) or state education department for more information.

National Center for Learning Disabilities
IDEA 2004 Parent Guide
Chapter 11: Dispute Resolution Options
www.ncld.org/content/view/912/456096/

IDEA 2004 Close Up: Resolving Disagreements between Parents and Schools
www.schwablearning.org/articles.aspx?r=1092