Should I Attend a Special Education Mediation?

Published on May 23, 2009 by Jennifer Laviano

Each State is required under the IDEA to make Mediation opportunities available for parents of children with special education needs.  In fact, it is a procedural safeguard ever since the 2004 IDEA.  While the process is voluntarily for both parents AND school districts, some parents feel pressured to attend a Mediation, or even believe it is mandatory prior to proceeding with Due Process, which it is not.

Mediation is an important forum to allow parents and school districts to reach agreements, but you need to know more about it before you agree to or request a special education Mediation.

Mediation is not the only alternative dispute resolution mechanism contemplated by the IDEA.  There is another procedure, known as a “Resolution Session,” which was added to IDEA in 2004.  That procedure is only triggered if a Due Process Hearing has been requested.  Resolution Sessions are an entirely different topic, and I promise a post on this forum down the road.  In addition, some States, like Connecticut, have their own additional options for settlement, like Advisory Opinions.

Like most forums under the IDEA, the way in which Mediation is implemented varies dramatically from State to State, so be sure to get the opinions of practitioners in YOUR State before you decide whether to Mediate your case.

So here is what you need to know about special education Mediation, in a nutshell:

Pros:

  • Far less costly than a Due Process Hearing
  • Far less acrimonious than a Due Process Hearing
  • Allows you and the school district more control over the ways in which the case is resolved, and the opportunity to be creative, whereas when you turn the entire case over to a Hearing Officer to decide, BOTH sides might end up unhappy
  • Some States will allow the parties to mutually select a Mediator who they believe to be fair and/or effective; you do not have that luxury with a Hearing Officer assigned to a Due Process Hearing
  • Gives you the chance to “be heard” without the risks associated with litigation
  • Gives you the opportunity to hear “the other side of the story” without the risks associated with litigation
  • Much faster resolution than a full blown Due Process Hearing
  • If you DO reach an agreement, that agreement is BINDING and directly ENFORCEABLE in State or Federal Court under the IDEA 2004

Cons:

  • Your school district has probably participated in many, many Mediation sessions, whereas you have not; the power imbalance can be intimidating, especially if you don’t have a special education attorney with you at the Mediation
  • If you do not believe your district is operating in “good faith,” participating in this process will just delay the inevitable litigation
  • In some states, there is a fear that the Mediators are not impartial, and that they share information with the school districts that benefits the district if you are unable to reach an agreement
  • Some school districts use the process as a “fishing expedition” to get as much information as possible from you, which they can then “spin” to their advantage in litigation
  • If you do have an attorney with you and you don’t settle the case, you have just spent money in Mediation that could have been spent preparing for or prosecuting the Due Process Hearing
  • You might get a Mediator who is very ineffective, and your day is wasted
  • If you don’t have a special education lawyer with you, but you reach an agreement anyway, you might be asked to sign away rights without really understanding what you have released

I am sure there are more benefits and detriments to Mediation than I’ve just listed, but the above covers the key points.  When one or both sides is calling for a Mediation, it is usually a good time to consider whether you need a special education lawyer, or at least to consult with one.

Regardless of whether you ultimately decide to participate in special education mediation with your school district, I urge you to give it a thought, no matter how angry you might be at the moment.

I look at Mediation as the last opportunity to avoid the place from which there is no turning back.

Unless you plan on moving, you are likely to be dealing with these people for a long time, and any chance you have to reach a resolution short of litigation you should take.

One Response to Should I Attend a Special Education Mediation?

  1. Margaret McGee
    January 22nd, 2010 | 4:04 pm

    If I understand things correctly, in Virginia, the mediators are trained and paid by the Department of Education. This seems like an immediate bias. If the DOE is paying the mediator’s salary, is that person likely to be neutral?

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