Choosing Mediation to Resolve a Conflict with Your Child's School
By: Finn Bille
Editor's note: This article was published before the 2004 reauthorization of IDEA. While much of the law remains the same, some changes have been made to the language and procedures. We continue to offer this article because it provides valuable information that is still relevant to the current law. For more information on the recent changes, visit our 2004 IDEA Update page.
Mediation is an important part of the "procedural safeguards" of the Individuals with Disabilities Education Act (IDEA) as amended in 1997.
The law's new requirement that mediation be made available to parents of children with disabilities is a tribute to the legislature's good sense. It would, of course, have been difficult to ignore this process, which is designed for preserving and improving the relationships of the parties in conflict - in this case the parents and the school personnel. The legislators must have seen that the humane and sustainable way to process a conflict between parents and school personnel is for them to collaborate in finding the best ways to educate the special children who are their joint responsibility. While it is occasionally appropriate to use the adversarial methods of the courts, in most cases mediation will serve the child's best interest.
If you're a parent, you may feel that the conflict between you and the school is more than you can handle on your own. Maybe you feel overwhelmed with having to take on yet another difficult task to get what your special child needs.
Solving your child's problems is rarely easy because you will have to deal with the school no matter what happens, but if you choose to have your problem mediated, the mediator will take much of the worry out of the process. In mediation you will still have to work with the school personnel, but the mediator will guide the process so that you can concentrate on the substance.
The mediator will be a neutral facilitator who is trained in the techniques and the spirit of helping others in collaborative problem solving. In special education mediation, she will also know about the rules governing special education.
The beauty of mediation is that you learn to work together with the very people who you may think have been giving you a hard time. During mediation you will learn to understand these people better, and to communicate with them. If the mediation is successful, you and the school staff will be effective partners in the work of helping your child precisely because you went through mediation together, and worked it out together.
Who participates in mediation?
The practice varies, but the school is usually represented by its special education person in addition to your child's teacher. You are allowed to bring your attorney or a friend or relative for support, but this is your process in which you participate directly and not through your attorney. If you are certain that you cannot participate directly, then you should not go to mediation. If you are merely uncertain about it, it is worth the effort to try.
How is mediation conducted and what can you expect when you go to mediation?
- Establishing ground rules
- Framing the issues
- Problem solving and negotiation
- Writing and signing the agreement
Establishing ground rules
The mediator will usually greet you and introduced himself and then ask all the parties to agree to rules, such as "no interruptions" and keeping the content of the mediation confidential. You may be asked to sign a confidentiality agreement.
Each party will have a chance to tell his or her story. You will have a chance to speak without being interrupted about how you view the conflict, what you believe your child needs, and why these needs have not been met. The teacher will have an equal chance to tell his story. The mediator may occasionally interrupt to clarify a point and then summarize what was said.
Framing the issues
As part of the mediator's summary, she will usually identify what she hears as the main concerns that you and the school have. These are the issues, or problems to be solved. The mediator will make sure that all your concerns are listed and acknowledged. She will then select the first issue to work on.
Problem solving and negotiation
In this step, the mediator will guide the parties in finding and agreeing on solutions to the problems or issues that have been identified. Often, the mediator will lead you in a brainstorming session in which you and the teacher will be asked to make creative suggestions for solutions. Whether the mediator calls it brainstorming or not, you will be asked to take a very active role in problem solving, and it is essential that you do so to feel that you can commit to the solutions you eventually agree on. Your special knowledge of your own child is vital in this phase, because you may have solutions from your home life that the teacher would never have thought of. The mediator will guide you in agreeing on solutions and modifying solutions to agree on them in such a way that all the issues have been addressed. This is negotiation assisted by the mediator.
Some or all of this process can be conducted in caucuses--separate meetings of the mediator and one of the parties. If it is exclusively or primarily done in caucuses, the process becomes a kind of shuttle diplomacy that is better suited for international diplomacy than for special education mediation in this writer's opinion.
Writing and signing the agreement
Finally, the agreement that you have created together will be written down and you will be asked to sign it to show your commitment, just as the school commits to carrying out the provisions in it. The agreement should include a mutual commitment to return to mediation to work out difficult problems of implementation.
To understand what the Individuals with Disabilities Education Act requires and how you and your child can benefit, please read the following text from the Act.
Section 615. Procedural safeguards
In General. -- Any State educational agency or local educational agency that receives assistance under this part shall ensure that procedures are established and implemented to allow parties to disputes involving any matter described in subsection (b)(6) to resolve such disputes through a mediation process which, at a minimum, shall be available whenever a hearing is requested under subsection (f) or (k).
Requirements. -- Such procedures shall meet the following requirements:
- The procedures shall 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 due process hearing under subsection (f), or to deny any other rights afforded under this part; and
- is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
- A local educational agency or a State agency may establish procedures to require parents who choose not to use the mediation process to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with--
- a parent training and information center or community parent resource center in the State established under section 682 or 683; or
- an appropriate alternative dispute resolution entity;
- The State shall 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.
- The State shall bear the cost of the mediation process, including the costs of meetings described in subparagraph (B).
- Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute.
- An agreement reached by the parties to the dispute in the mediation process shall be set forth in a written mediation agreement.
- Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of such process.
Congress explained its reasons for including a requirement for a statewide system of mediation in its Report (to accompany S.717) as follows:
To encourage early resolution of problems whenever possible, section 615 requires States to offer mediation as a voluntary option to parents and LEA's as an initial process for resolving disputes. However, the bill requires that a State's mediation system may not be used to delay or deny a parents right to due process. The bill allows SEA's and LEA's to establish procedures to require parents who choose not to engage in mediation to meet, at a time and place convenient for them, with a disinterested party who would encourage and explain the benefits of mediation. This individual would be under contract with either a Parent Training and Information Center funded under part D or an alternative dispute resolution entity.
The committee believes that, in States where mediation is now offered, mediation is proving successful both with and without the use of attorneys. Thus, the committee wishes to respect the individual State procedures with regard to attorney use in mediation, and therefore, neither requests nor prohibits the use of attorneys in mediation. The committee is aware that, in States where mediation is being used, litigation has been reduced, and parents and schools have resolved their differences amicably, making decisions with the child's best interest in mind. It is the committee's strong preference that mediation become the norm for resolving disputes under IDEA. The committee believes that the availability of mediation will ensure that far fewer conflicts will proceed to the next procedural steps, formal due process and litigation, outcomes that the committee believes should be avoided when possible.
The legislation requires that agreements reached in mediation shall be put in writing. Furthermore, the amendments require that discussions held in mediation would be confidential and could not be used as evidence in any subsequent due process hearing or civil action. However, the committee intends that nothing in this bill shall supersede any parental access rights under the Family Educational Rights and Privacy Act of 1974 or foreclose access to information otherwise available to the parties. Mediation parties may enter into a confidentiality pledge or agreement prior to the commencement of mediation. An example of such an agreement follows:
- The mediator, the parties, and their attorneys agree that they are all strictly prohibited from revealing to anyone, including a judge, administrative hearing officer or arbitrator the content of any discussions which take place during the mediation process. This includes statements made, settlement proposals made or rejected, evaluations regarding the parties, their good faith, and the reasons a resolution was not achieved, if that be the case. This does not prohibit the parties from discussing information, on a need-to-know basis, with appropriate staff, professional advisors, and witnesses.
- The parties and their attorneys agree that they will not at any time, before, during, or after mediation, call the mediator or anyone associated with the mediator as a witness in any judicial, administrative, or arbitration proceeding concerning this dispute.
- The parties and their attorneys agree not to subpoena or demand the production of any records, notes, work product, or the like of the mediator in any judicial, administrative, or arbitration proceeding concerning this dispute.
- If, at a later time, either party decides to subpoena the mediator or the mediator's records, the mediator will move to quash the subpoena. The party making the demand agrees to reimburse the mediator for all expenses incurred, including attorney fees, plus the mediator's then-current hourly rate for all time taken by the matter.
- The exception to the above is that this agreement to mediate and any written agreement made and signed by the parties as a result of mediation may be used in any relevant proceeding, unless the parties agree in writing not to do so. Information which would otherwise be subject to discovery, shall not become exempt from discovery by virtue of it being disclosed during mediation.
Committee on Labor and Human Resources, 1997, p. 26-8