We’ve covered whether to attend a Mediation. There are benefits and risks, but generally it is a forum which I recommend, where appropriate.
But what happens if you’ve already attended one, reached a Mediation Agreement, and the school district isn’t honoring it?
Unfortunately, in my special education law practice, I am regularly contacted by parents of children with disabilities who have previously resolved some or all aspects of their disputes with their school districts, but who are now finding that the school is not complying with the terms of the Agreement. Many of these parents feel extremely disappointed and betrayed, having tried to re-establish trust with their child’s educators, only to have been met with broken promises.
The good news is that, in 2004 when the IDEA was last reauthorized by Congress, the Statute was changed to provide for the automatic enforceability of settlement agreements reached at Mediation.
IDEA 2004 provides that, if a resolution of a complaint is reached
through the mediation process, the parties shall execute a legally binding agreement that sets forth such resolution that — (i) states that all discussions that occurred during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearings or civil proceeding; (ii) is signed by both the parent and a representative of the agency who has the authority to bind the agency; and (iii) is enforceable in any State court of competent jurisdiction or in a district court of the United States.” 20 USC 1415 (emphasis supplied)
This means that, if you enter into a written agreement at a Mediation with your school system, and they fail to do what they agreed to, you can go straight to court.
The usual requirement of “exhausting administrative remedies” through a Due Process Hearing applies to the presentation of any complaint regarding the evaluation, identification, or provision of special education and related services to a child. But the IDEA 2004 required that resolution of those complaints through Mediation Agreements should be legally binding in and of themselves, directly in Court.
How important is this change?
Well, since IDEA 2004 went into effect, I’ve had to threaten districts with going to Court to have Mediation Agreements enforced, but I have not had to file in Court to enforce one. Not one! The straightforward language of the statute alone typically results in compliance.
Now, the hard part is getting a good Written Agreement in the first place!