Transcript Resolving Education Disputes Scott F. Johnson About Me • Professor of Law at Concord Law School • Hearing Officer with NH Dept.

Resolving 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 primarily about basic ways to resolve
disputes under IDEA
• Talk about some changes in IDEIA
• Tips for trying a case
• Talk about some specific mediation approaches
and ways to resolve disputes
• This PowerPoint is available at
www.edlawrc.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
given a chance to resolve the issues.
IDEIA
• If agree, written settlement agreement
• Buyers remorse for 3 days – both sides
• School attorneys cannot attend unless parent
attorney attends
• Parties can waive the meeting requirement by
agreement or substitute mediation for it
• If can’t agree go to hearing or mediation/neutral
evaluation
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
Tips for Trying a Case - Hearing Officer
Perspective
Tip #1
Know the Substantive Law
Tip #2
Know the Process
Tip #3
Figure Out The Exhibits And Witnesses That
You Will Actually Use
Choose Your Witnesses Carefully
Tip #4
Tips for trying a case
Tip #5
Resolve Your Discovery Disputes Without
Asking the Hearing Officer to do so
Tip #6
Tell A Story, But Make Sure It Is A Relevant
One
Tip #7
Know Your Hearing Officer
Tip #8
Listen to the Hearing Officer
Tip #9
Be Nice
Mediation 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.
Mediation 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.
Problem Solving Approach
Seven 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
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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.
• Try to 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 of the Parties
• 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
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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.
Questions