Why Should We Mediate Special Education Disputes?
By: James R. Mortenson
The majority of special education disputes are unique in the world of civil litigation because they usually involve parties who must maintain a significant relationship. For example: employment cases often involve a separation, personal injury suits often involve people who do not even know each other, businesses may or may not continue relationships after a legal dispute. Parents and their children, in most special education disputes, must look at continuing their relationship with a school or school district. This may often be for a significant part of the child's educational career. The prospect of entering into litigation with a child's school, i.e. a due process hearing, is potentially harmful of that relationship. There may be no relationship more important than that between a family and the school that they entrust to educate their child.
The education of a child with a disability should not suffer due to a parent's unwillingness to confront a school on accommodations or modifications which are not appropriate or are not free. Legitimate disputes arise and they must be dealt with. But is it a "catch 22"? Should parents avoid confrontation and smile as if nothing were wrong, while a child fails to progress or should they rather, engage in battle with the organization entrusted with the education of their child and in the process destroy any semblance of trust or respect that may have existed before the dispute? I do not envy any parent faced with this very real dilemma.
So what are the alternatives available to parents? In addition to attempting to resolve disputes, some parents try to avoid them. A parent may attempt to change public schools. They may enroll their child in a private school and pay for it themselves. They may move. These are just a few examples and, although parents across the country have used these options, they are not possible for everyone. Indeed, parents should not be encouraged to back down in the face of a school district that is unwilling or allegedly unable to provide appropriate services to their child with a disability. Federal law protects these children and their parents. Resolving the dispute in an attempt to enforce the rights of children with disabilities, and their parents, should always be considered the preferable option. The question is, how to enforce those rights? While mediation may not strike many as an enforcement mechanism (because it almost always involves compromise), we must face the fact that due process (litigation) is not always the best way to resolve issues and, in fact, can raise more.
Why mediate special education disputes?
The cost of litigation, the time and emotion invested, and the pain involved are all factors that parents must consider when looking at litigation. Even with fee shifting enabling parents to recover attorneys' fees from districts when they are successful, the process will undoubtedly hit a family's financial resources hard. Assuming a parent can recover all of their attorney's fees in the end, that time can be a long way off. If hearing decisions are appealed, and eventually reach federal district court, the final outcome may have taken a year or more. Few attorneys will prosecute a special education case on a contingent basis, so parents must be prepared to pay.
Additionally, the expenses add up. While discovery at the hearing level is virtually nonexistent, the costs for copies of records and hearing documents, travel if the attorney is far from the parents, and most of all, expert witnesses, can be major obstacles. Add to this the time parents must take off work (often a week) and due process looks less and less as a reasonable way to resolve a dispute which may be moot by the time the process is over. In mediation, the participants avoid many drawbacks of litigation. They will reach a final decision far sooner if the mediation is successful. If it is not, the parties may, and likely should, return to due process. It does not hurt to try mediation. The cost is considerably less. One day of mediation is nothing when compared to a four to six day hearing, not including preparation and appeals. Also, the decision belongs to the participants. While compromises will likely be made on both sides, the result generally is that both sides have obtained something they want by their own choice. Leaving a decision to a third party, such as a hearing officer, leaves everything to chance. Finally, and perhaps most important, is the healing that can occur through mediation. Very rarely do parents and schools exist in a happy relationship and suddenly fall out in a dispute over services. Issues fester for long periods of time. Trust is decayed and communication breaks down. By the time parents are ready to litigate a dispute, the relationship with the district has worn thin.
Through mediation communication can be reestablished. Both sides have the opportunity to talk about their positions and interests and hear the other's side. This goes a long way to healing and rebuilding that important relationship. Even when a party is successful in litigation, they have been emotionally drained. The parties can walk away from a successful mediation with a feeling of accomplishment instead of feeling worn out.
Though they may compromise certain positions, the parties can explore ways to satisfactorily fulfill their interests. Mediation can even include positive brainstorming in which the parties change roles to come up with creative solutions. If a parent is able and willing they can, without fear of showing weakness or acknowledging the district's position which could somehow be used against them in litigation, put themselves in the shoes of a district decision maker. They may be able to add a perspective to the situation, as the district sees it, that the district did not realize or acknowledge before. The same is true for district staff. They may put themselves in the role of a parent and offer an additional perspective which may lead to a mutually satisfying solution. This is just one example of how the mediation process can work in both rectifying the dispute and rebuilding the trust and communication that are so critical in a family/school relationship.
Pitfalls in special education mediation
Mediation is not a magic bullet. The process involves good preparation, openness, and good faith on behalf of both parties. Even the most skilled mediator cannot help parties overcome impasse if either or both parties are not truly interested in resolving the dispute. Mediation can and should be a positive experience for both sides. However, parents must be aware of potential abuses of the process.
One pitfall to look out for is the use of mediation for the purposes of discovery. This is not to say that documents or comments shared in session will or can be used as evidence in litigation. However, special education disputes often involve a complex set of facts and theories which are not always clear to opposing sides. This is evidenced in the practice of school districts commonly demanding more information when a parent raises a legally sufficient objection in a complaint or demand for due process. The district may use mediation in an attempt to get the clarification they seek in preparation for litigation, not for the purpose of resolving the matter through mediation. One way to spot this type of behavior is when a parent has expressed concerns and views of a dispute and the district fails to respond likewise. Instead the district calls for a caucus and then returns looking for more information. A good mediator will spot this and implore the district to share its perspective so that both sides may process information and the real work of creating solutions can begin. If either side refuses early in the mediation to share their views, and the mediator is unable to coax discourse, termination of the mediation would be appropriate.
Other elements of bad faith become apparent when a district states that a particular solution is unworkable because "it is a team decision." This response can catch parents, and even inexperienced mediators, off guard. The reason the parties are engaged in mediation is generally due to a team impasse. However, if an issue has not been subject to team discussion, but is part of an overall solution to a dispute, it should not be dismissed by a party because they feel "the team needs to make that decision." Such limitations on mediation as a dispute resolution forum are untenable and undermine the process.
An issue parents must also be aware of is that they may not be awarded attorney's fees for mediation. In amending the Individuals with Disabilities Education Act (IDEA), in 1997, Congress explicitly removed attorneys' fees where due process was not first requested.1 This puts some twists on the entire process of dispute resolution in special education disputes. While mediation is encouraged, parents cannot affordably access it unless they first request a hearing and prepare for litigation. The alternative is not to use an attorney, which may be appropriate in some cases and is quite common in more. Additionally, while attorneys' fees are usually made part of any mediated settlement agreement, the new law removes the incentive for the district to include such a term in the agreement knowing that fees cannot be recovered in court if there has not been a request for hearing. Mediation, like any form of dispute resolution, is not perfect. Not all problems can nor should be resolved through mediation. However, many, if not most can. For fiscal year 1997, in Minnesota, the state where I practice, 83% of the 58 mediations requested resulted in agreement. Satisfaction was very high among participants, with 94% saying they would use the process again and 96% saying they would recommend mediation to others. While success rates have declined slightly in Minnesota since that state began using mediation in special education disputes in 1993 (from 95% to 83%) the satisfaction rates among participants have remained consistent.2 Mediation is a valuable tool in resolving special education disputes but, like all tools, it must be used properly and carefully.
About the author: James R. Mortenson, J.D., has represented parents and students with disabilities in IEP meetings, mediation and settlement negotiations, due process hearings, and federal court. He was lead counsel in Davis by Thompson v. Independent School District No. 196, 23 IDELR 644, (D. Minn. 1996). Mr. Mortenson is also a mediator.
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20 U.S.C. §1415(h)(3)(D)(ii) (IDEA 1997)
Data provided by the Minnesota Office of Dispute Resolution, MNSEMS
James R. Mortenson, Attorney at Law Minneapolis, MN
This article has been reprinted with permission from the Winter, 1998 issue of The International Dyslexia Association's quarterly newsletter, Perspectives. To view additional articles from this and other issues, please consult IDA's Web Site at: http://www.interdys.org.