Transcript Approaches to Mediation

Resolving Special
Education Disputes
Scott F. Johnson
About Me
Professor of Law at Concord Law School
Hearing Officer with NH Dept. of
Education
NHEdLaw, LLC
www.nhedlaw.com
Education Law Resource Center
www.edlawrc.com
Overview
Talk about basic ways to resolve disputes
under IDEA
Talk about some changes in IDEIA
Talk about some specific mediation
approaches and ways to resolve disputes
Talk through a scenario
This PowerPoint is available at
www.nhedlaw.com
IDEIA
Will cover three ways to resolve disputes:
neutral evaluation, mediation, due
process/court.
Some changes to dispute resolution in
IDEIA
Mostly in the area relating to due process
hearings in terms of process and notice.
Neutral evaluation
Opinion from hearing officer about strengths and
weaknesses
Present limited evidence in writing and make
arguments.
Hearing officer makes recommendation on how
they would rule. Parties can accept or reject.
Not bound if reject
Process is confidential
Mediation
Parties try to resolve differences with the
help of a trained, neutral third party
Confidential
Provided at no cost to the parties
If agree, becomes binding, written
agreement that is enforceable in court
Different methods can be used to help
resolve disputes (discussed in detail in a
minute)
IDEIA
Now requires states to offer mediation at
the outset
Can request just mediation or mediation
and due process
My state of NH has offered it for sometime
and schedules it when a hearing is
requested
Due process
Adversarial proceeding
Witnesses, attorneys, hearing officer
Parties have certain rights defined by
statute in terms of presenting evidence,
cross-examining witnesses, establishing a
record and appealing.
Hearing officer makes a decision
Loser can appeal to state or federal court
Attorney’s fees
IDEIA
New law now requires the parties to have a
“resolution meeting” before going to hearing
when parent requests due process.
Must happen in 15 days of request for hearing
Like an IEP meeting, but a person with decisionmaking authority to resolve the dispute must
attend
Discuss the request for due process and school
is give chance to resolve the issues
IDEIA
If agree, written settlement agreement
Buyers remorse for 3 days – both sides
Have 30 days from request for hearing to
resolve
If can’t agree go to hearing or mediation/neutral
evaluation
School attorneys cannot attend unless parent
attorney attends
Parties can waive the meeting requirement by
agreement or substitute mediation for it
IDEIA
Law requires parties to be more specific in
their requests for due process
Can’t raise things that were not in the
request
Other party can ask for more information if
request not sufficient – sufficiency
hearings
Idea is to put parties on notice of the
issues to be addressed at hearing
Mediation
General Approaches
Positional negotiation
Develop a position and
insist the other person
agree to it.
Start at an extreme and
work towards the middle
Start near actual position
and hold until the other
person comes close
enough to it
Positional negotiation
Involves strength and
weaknesses of the
case.
Each side attacks the
other’s position and
case.
Threaten action if
other person does not
come to your position.
General Approaches
Problem Solving
approach.
View things as a shared
problem to be resolved by
both sides.
More work.
Can produce a better,
longer lasting outcome.
Worked in Camp David
Peace Accords for peace
between Egypt and
Israel.
Problem Solving Approach
7 Elements
1. Relationship between the parties
2. Communication between the parties
3. Each party’s Best Alternative to a Negotiated
Agreement (BATNA)
4. Interests of the parties
5. Creative options
6. Standards of Legitimacy
7. Commitment
Relationships
Perhaps the most
important part
Working on it has its
own intrinsic value
and corollary benefits
Treat others with
respect
Work on the
relationship
Common relationship builders
Bring food and drinks to meetings
Be courteous
Don’t retaliate
Don’t personalize
Don’t blame
Don’t yell
Express feelings but calmly
Scott’s Crazy Ideas
Try to get to know the
person.
Meet outside of school
and do something
unrelated to special
education.
Invite the other person to
do something with a
project, school committee
or outside of school group
or committee.
Communication
All participants have
to really listen.
Active listening
Acknowledge things
you agree with
Clarify and confirm
what speaker said
Empathize
BATNA
Best Alternative to a Negotiated
Agreement.
What you could obtain without an
agreement from the other person.
Figure out the BATNA of others that are
involved.
Both sides want to work to an agreement
that is better then their BATNA.
Interests
Have to get to the
underlying concerns.
What the person
“really wants.”
Have to figure it out
for all involved.
Not always the
specific solution on
the table.
That might just be the
position.
For example, an out of district
placement could be an interest in
ensuring a child reads.
Creative Solutions
Not always obvious at first
Brainstorm


Don’t evaluate
Don’t attach to a suggestion to early
Talk through possible solutions with pros
and cons
Look for the solution that is a mutual gain
for all involved.
Legitimacy
Interests and options must be legitimate.
Something the system and process can provide
Bounds of legitimacy depend on the situation.
With special education some of those bounds
are legal ones.
Others are fairness, reasonableness and the
interests of the parties within their legal and
ethical boundaries.
Commitment
Occurs at the end
Articulate precisely
what each person is
committing to.
Works well with
settlement agreement
process.
Resources
NH Special Education Law Manual: A Guide for Parents,
Educators & Professionals, NHEdLaw, www.nhedlaw.com
Harvard Law School Project on Negotiation www.pon.harvard.edu
National Center on Dispute Resolution.
www.directionservice.org/cadre/indexdispres.cfm
The Problem Solving Lawyer,
www.harborhouselaw.com/articles/problemsolve.mpalmer.htm
New Hampshire Dept. of Education Dispute Resolution.
www.ed.state.nh.us/education/laws/SpecialEducationandDueProces
sHearingsandAlternativeDisputeResolution.htm
Office of Special Education Programs Questions and Answers on
Special Education Mediation.
www.directionservice.org/cadre/vet_QAonmediation.cfm
NHEdLaw, Other Helpful Resources page.
www.nhedlaw.com/helpful.htm