NASET Q & A Corner
Questions and Answers on Independent Educational Evaluations
What is mediation?
Mediation is a voluntary process that may be used to resolve disputes between school systems and the parents of a child with a disability. Mediation is a dispute-resolution and collaborative problem solving process in which a trained impartial party facilitates a negotiation process between parties who have reached an impasse. The role of the mediator is to facilitate discussion, encourage open exchange of information, assist the involved parties in understanding each other’s viewpoints and help the parties reach mutually agreeable solutions (National Dissemination Center for Children with Disabilities, 2010).
Mediation is entirely voluntary. While each mediation situation is unique, generally both parties to the mediation will come to the mediation session prepared to explain their own position and listen and respond to the other party’s position. The mediator will facilitate a discussion but does not “take sides” or give an opinion on the issues being disputed. The mediator works with the parties to help them express their views and positions and to understand each other’s perspectives. The mediator helps the parties generate potential solutions and helps them communicate and negotiate. If an agreement is reached to resolve the dispute, the mediator helps the parties record their agreement in a written, signed document (State Education Department of New York: Office of Vocational and Educational Services for Individuals with Disabilities, 2001).
In mediation, an impartial, third party mediator helps parents and school staff clarify the issues and underlying concerns, explore interests, discuss options and reach mutually satisfying agreements that address the needs of the student. The mediator does not decide how to resolve the dispute – that is left in the hands of the parent(s) and the school personnel. When the parties resolve all or some of the issues, they work together with the mediator to put their agreement in writing (CADRE, 2007).
Mediation is less stressful than formal hearings, less time consuming and can improve relationships between educators and parents. Mediation can help the parties envision other alternatives to their original positions (National Dissemination Center for Children with Disabilities, 2010). The collaborative problem-solving meeting encourages mutual respect, promotes communication and often provides the basis for positive working relationships between the parent(s) and school staff (The Committee on Education and the Workforce, U.S. House of Representatives, 2005).
Why would parents and school districts want to use mediation as dispute resolution option?
When parents and schools disagree on special education programs for students with disabilities (and negotiations in IEP team meetings have stalled) reaching a resolution can be difficult. However, parents may want to avoid a more adversarial due process hearing and/or want to attempt to resolve the matter without attorney involvement. In this type of situation, mediation is often considered.
Parents and school districts will use mediation as an attempt to bring about a peaceful settlement or compromise between parties to a dispute through the objective intervention of a neutral party. Mediation is an opportunity for parents and school officials to sit down with an independent mediator and discuss a problem, issue, concern, or complaint in order to resolve the problem amicably without going to due process (The Committee on Education and the Workforce, U.S. House of Representatives, 2005).
Mediation provides a positive, less adversarial approach to resolving disputes between parents and school systems. With the assistance of a skilled and impartial facilitator (the mediator), the parties involved in the dispute are encouraged to communicate openly and respectfully about their differences and to come to an agreement. The decision-making power always resides with the participants in mediation.
Does IDEIA afford mediation as an option for dispute resolution?
Yes. Each public agency must ensure that procedures are established and implemented to allow parties, to resolve disputes through a mediation process[34 C.F.R. 300.506(a); 20 U.S.C. 1415(e)(1)].
What sets mediation apart from other special education meetings?
Mediation differs from other special education or IEP meetings in that:
- Mediation is conducted by a neutral third party
- Mediation can uncover new approaches that the parties haven’t previously explored.
- Participants are encouraged to examine the reasons behind their conclusions and reevaluate their thinking.
- Mediation provides a structured, problem solving approach that ensures that all participants are able to express their perspectives while being treated fairly and impartially.
- A mediator’s questions may encourage new thought, elicit new options and provide a format in which people can communicate with each other differently. The parties often reach a different outcome than they reached in previous special education meetings
What are the benefits of using mediation to resolve a dispute?
While mediation cannot guarantee specific results, it can be an efficient and effective method of dispute resolution between the parents and the school district or, as appropriate, the SEA or other public agency.
As part of its technical assistance and dissemination (TA&D) network, the United States Office of Special Education Programs has funded a center that specializes in dispute resolution, including mediation. It’s called CADRE, the Center for Appropriate Dispute Resolution in Special Education, also known as the National Center on Dispute Resolution.
Through its work in dispute resolution, CADRE has identified a range of benefits of mediation for parents, educators, and services providers, including:
- Special education issues are complex and can best be solved by working together.
- Mediation often results in lowered financial and emotional costs, especially when compared to a due process hearing. It also tends to be faster and less adversarial.
- Given its voluntary nature and the ability of the parties to devise their own remedies, mediation often results in written agreements because parties have an increased commitment to, and ownership of, the agreement.
- Remedies are often individually tailored and contain workable solutions that are easier for the parties to implement since they have both been involved in developing the specific details of the implementation plan. Because the parties reach their own agreement, as opposed to having a third party decide the solution, they generally are more likely to follow through and comply with the terms of that agreement.
- Families can maintain an ongoing and positive relationship with the school and benefit from partnering with educators or service providers in developing their child’s program.
- Research shows that people tend to follow the terms of their mediated agreements (CADRE, 2007).
How is mediation different from a due process hearing?
At mediation, the mediator facilitates communication between the school district and the child’s parent or guardian to help them reach agreement regarding the issue(s) on which they disagree.At a due process hearing, the hearing officer renders a decision on the issue(s)based on evidence and testimony. Other differences include:
Mediation
- Informal process that takes about 2-5 hours
- Voluntary participation for parents and school districts
- Attorneys need not be present and parties speak for themselves
- Discussion allows participants to focus on the student’s future educational program together.
- Parties shape their own agreements through collaborative problem solving.
- When resolution is reached, the parties usually leave the mediation with a written agreement.
Due Process Hearing
- Formal legal proceeding that takes about 1-3 days
- Mandatory participation upon hearing request by either parents or school districts
- Attorneys are generally present and usually speak on behalf of the participants
- Evidence and sworn testimony are presented as the legal basis for a decision about the student’s educational program.
- Hearing officer makes a decision based on a determination of the facts and law.
What are the procedural requirements of mediation?
Mediation may be requested by the child’s parent, guardian or surrogate parent, organizations, groups, or by school personnel. The procedures must ensure that the mediation process:
- Is voluntary on the part of the parties;
- Is not used to deny or delay a parent’s right to a hearing on the parent’s due process complaint, or to deny any other rights afforded under Part B of IDEIA; and
- Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques [34 C.F.R. 300.506(b)(1)(i-iii)].
How would school districts know what mediators are available?
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 [34 C.F.R. 300.506(3)(i); 20 U.S.C. 1415(e)(2)(C) and (D)].
How are mediators selected?
The SEA must select mediators on a random, rotational, or other impartial basis [34 C.F.R. 300.506(b)(3)(ii);20 U.S.C. 1415(e)(2)(C) and (D)].
Does IDEIA address the impartiality of mediators?
Yes. An individual who serves as a mediator:
- May not be an employee of the SEA or the LEA that is involved in the education or care of the child; and
- Must not have a personal or professional interest that conflicts with the person’s objectivity [34 C.F.R. 300.506(c);20 U.S.C. 1415(e)]
The role of the mediator is to help the parties respectfully discuss the issues and to consider alternatives to the dispute. The mediator does not make decisions, but may ask questions and make suggestions for both parties to consider. If the parties do not agree with the suggestions, the mediator does not push for their acceptance. The mediator guides the discussion so that the parties can effectively problem-solve the disputed issues.
Who bears the cost of mediation?
Neither parents nor school districts are responsible for the costs of special education mediation. Such costs are the responsibility of the State Education Department [34 C.F.R. 300.506(b)(4); 20 U.S.C. 1415(e)(2)(D)].
When and where are mediation sessions held?
Each session in the mediation process must be scheduled in a timely manner and must be held in a location that is convenient to the parties to the dispute [34 C.F.R. 300.506(b)(5);20 U.S.C. 1415(e)(2)(E)].
Who can attend a mediation session?
Generally, the parent(s) or guardian(s) and a representative of the school district attend mediation. Since mediation is intended to improve communication, the parties represent themselves in discussions regardless of who accompanies them. The school district representative who attends the mediation should be adequately informed and authorized by the school district to enter into an appropriate agreement. Either party may be accompanied by others, including an attorney (State Education Department of New York: Office of Vocational and Educational Services for Individuals with Disabilities, 2001).
Are attorneys’ fees reimbursed for mediation?
No, attorneys’ fees cannot be reimbursed for mediation (State Education Department of New York: Office of Vocational and Educational Services for Individuals with Disabilities, 2001).
What happens if the parties resolve the dispute through mediation?
If the parties resolve a dispute through the mediation process, the parties must execute a legally binding agreement that sets forth that resolution and that:
- States that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding [34 C.F.R. 300.506(b)(6)(i)]; and
- Is signed by both the parent and a representative of the agency who has the authority to bind such agency [34 C.F.R. 300.506(b)(6)(ii); 20 U.S.C. 1415(e)(2)(F)]
A written, signed mediation agreement is enforceable in any State court of competent jurisdiction or in a district court of the United States.
Are discussions during mediation confidential?
Yes. Discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any Federal court or State court. Only the written mediation agreement may be presented as evidence at an impartial hearing subsequent to a mediation session. No summary of actual discussions or offers of settlement will be permitted [34 C.F.R. 300.506(b)(8);20 U.S.C. 1415(e)(2)(G)]. If the parties resolve a dispute through the mediation process, the parties must execute a legally binding agreement that includes a statement that all discussions that occurred during the mediation process will remain confidential.
Must a written mediation agreement be kept confidential?
IDEIA does not specifically address whether the mediation agreement, itself, must remain confidential. However, the confidentiality provisions in the Part B regulations of IDEIA and the Family Educational Rights and Privacy Act (FERPA) and its regulations apply. Further, there is nothing in IDEIA that would prohibit the parties from agreeing voluntarily to include in their mediation agreement a provision that limits disclosure of the mediation agreement, in whole or in part, to third parties.
How is a mediation agreement enforced?
If the parties resolve the dispute through the mediation process, they must execute a legally binding agreement that states the resolution and is signed by both the parent and a representative of the agency who has authority to bind the agency. This is clearly stated at §300.506(b)(6) (just cited above). A written, signed mediation agreement is enforceable in any state court of competent jurisdiction (a court that has the authority under State law to hear this type of case) or in a district court of the United States (CADRE, 2007)
If, at the conclusion of the 30-day resolution period, the LEA and parents wish to continue the mediation process, must the hearing officer agree to the extension?
No. The regulations contemplate that the parties may agree in writing to continue the mediation at the end of the 30-day resolution period. Therefore, such agreements would not require hearing officer involvement or approval.
Each hearing and review involving oral arguments must be conducted at a time and place that is reasonably convenient to the parents and child involved, and a hearing officer may grant specific extensions of time at the request of either party [34 C.F.R. 300.515]. Therefore, to the extent that the hearing officer already has established a hearing schedule that is inconsistent with the extension agreed upon by the parties, it would be appropriate to notify the hearing officer of the agreement and any scheduling conflicts in order to revise the hearing schedule.
How does the use of mediation affect parents’ other due process rights?
Use of mediation to resolve a parent’s concern does not in any way affect (deny or delay) the parent’s other rights to due process, such as the right to a due process hearing. A parent can request a due process hearing at any time before, during, or after the mediation. Requesting an hearing prior to or in the absence of mediation does not constitute that a person has failed to exhaust administrative remedies which has to do with awarding attorneys’ fees in subsequent hearings. Mediation does not diminish or limit the due process rights of a parent (State Education Department of New York: Office of Vocational and Educational Services for Individuals with Disabilities, 2001)
