Mediation in Part B, in Detail

September 2012
A legacy resource from NICHCY

You can tell just by the title of this article that you are now entering a detailed discussion of the mediation process under IDEA.

• What is mediation?
• Benefits of mediation
• Stats on use of mediation
• When is mediation an option?
• When is mediation not available?
• SEA’s obligations for mediation process
• What happens at mediation
• Confidentiality of info shared during mediation
• Enforcing the mediation agreement

To read IDEA’s exact words, visit IDEA’s Regulations on Mediation.

There are other mechanisms for resolving disputes, and you can find out about those by returning to the menu “Resolving Disputes Between Parents and the School System.” Here, however, the process of mediation will be thoroughly explained without again mentioning that other options exist by which individuals and organizations might register their disagreement with the school system and have it addressed.

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What is mediation?

Mediation refers to a process conducted by a qualified and impartial mediator to resolve a disagreement between a parent and public agency. The Committee on Education and the Workforce, U.S. House of Representatives (2005), described mediation as follows:

Mediation is defined as an attempt to bring about a peaceful settlement or compromise between parties to a dispute through the objective intervention of a neutral party. Mediation is an opportunity for parents and school officials to sit down with an independent mediator and discuss a problem, issue, concern, or complaint in order to resolve the problem amicably without going to due process. (p. 13)

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What are the benefits of using mediation to resolve a dispute?

While mediation cannot guarantee specific results, it can be an efficient and effective method of dispute resolution between the parents and the school district or, as appropriate, the SEA or other public agency.

As part of its technical assistance and dissemination (TA&D) network, OSEP has funded a center that specializes in dispute resolution, including mediation. It’s called CADRE, the Center for Appropriate Dispute Resolution in Special Education, also known as the National Center On Dispute Resolution. CADRE is an excellent resource for the field. Check out CADRE’s website at: www.directionservice.org/cadre

Through its work in dispute resolution, CADRE has identified a range of benefits of mediation for parents, educators, and services providers, including:

Special education issues are complex and can best be solved by working together.

Mediation often results in lowered financial and emotional costs, especially when compared to a due process hearing. It also tends to be faster and less adversarial.

Given its voluntary nature and the ability of the parties to devise their own remedies, mediation often results in written agreements because parties have an increased commitment to, and ownership of, the agreement.

Remedies are often individually tailored and contain workable solutions that are easier for the parties to implement since they have both been involved in developing the specific details of the implementation plan. Because the parties reach their own agreement, as opposed to having a third party decide the solution, they generally are more likely to follow through and comply with the terms of that agreement.

Families can maintain an ongoing and positive relationship with the school and benefit from partnering with educators or service providers in developing their child’s program.

Research shows that people tend to follow the terms of their mediated agreements.

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How often is mediation used to resolve disputes?

CADRE (2007) reported the following statistics on use of mediation in the 50 States (DC and outlying areas not included). In the 2004-2005 school year:

• All Mediations Held: 6,577
• All Mediation Agreements: 4,997 (76%)

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When is mediation an option to resolve a dispute under IDEA?

IDEA requires states to ensure that mediation is available to resolve disputes. The availability of mediation has been expanded under the 2004 Amendments to IDEA. Now, any dispute, including matters that arise prior to the filing of a due process complaint, can be the subject of mediation. (71 Fed. Reg. 46696) You can read IDEA’s exact words in the companion resource to this one, IDEA Regulations on Mediation. Look for §300.506(a).

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When is mediation not available to resolve a dispute under IDEA?

The final Part B regulations make clear where mediation cannot be used: with respect to specific “consent override” situations.

First, a bit of context regarding “consent override.” This term refers to when public agencies (in other words, school systems) use IDEA’s procedural safeguards (including mediation under §300.506) to override a lack of parental consent.

When agencies can use their consent override procedures. Public agencies have the option of using consent override procedures (including mediation) to pursue the initial evaluation or reevaluation if parents of children who are enrolled in public school or seeking to enroll their child in public school:

• refuse consent to the initial evaluation or reevaluation; or
• fail to respond to a request to provide consent. [§300.300(a)(3) and (c)(1)(ii)]

Since IDEA makes use of these procedures optional, the decision whether to use these procedures is left to the discretion of the public agency. Note that we’re talking here about children enrolled in public school (or seeking to be enrolled there).

When agencies cannot use their consent override procedures. Consider the circumstance of a child who is home-schooled or who attends a private school in which the parents enrolled the child (as opposed to the school doing so). With these children, public agencies may not use their consent override procedures if parents:

• refuse consent to the initial evaluation or reevaluation; or
• fail to respond to a request to provide consent. [§300.300(d)(4)]

To reiterate: Home-schooled children with disabilities. Parentally-placed private school children with disabilities. No consent override option.

Here’s another: lack of parent consent for initial provision of special education and related services. Parent consent is required before the school system may provide these services to a child for the first time, and the school system may not use IDEA’s procedural safeguards, including mediation, to override the lack of consent if the parent:

• fails to respond to a request for consent; or
• refuses consent to the initial provision of special education and related services under Part B of IDEA. [§300.300(b)(3]

In addition, a parent may withdraw their child from further receipt of special education and related services by revoking their consent.  In such cases, a public agency is not able, through mediation or a due process hearing, to challenge the parent’s decision or seek a ruling that special education and related services must continue to be provided to the child. [§300.300(b)(4)]

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What are the SEA’s obligations for the mediation process?

The 2004 Amendments to IDEA require public agencies to establish and implement procedures to make mediation available to parents and public agencies to resolve a dispute involving any matter arising under Part B, including matters arising prior to the filing of a due process complaint.

The public agency’s procedures for the mediation process must ensure that mediation:

• is voluntary on the part of both parties [§300.506(b)(1)(i)];
• may not be used to deny or delay a parent’s right to a due process hearing, or to deny any other rights afforded under Part B of IDEA [§300.506(b)(1)(ii)]; and
• is conducted by a qualified and impartial mediator who is trained in effective mediation techniques [§300.506(b)(1)(iii)].

The state must make sure that each mediation session is scheduled in a timely manner and held in a location that is convenient to the parties to the dispute [§300.506(b)(5)]. The SEA:

• is responsible for paying for the mediation process;
• is responsible for maintaining a list of qualified mediators who are knowledgeable about the laws and regulations relating to the provision of special education and related services; and
• must select mediators on a random, rotational, or other impartial basis. [§300.506(b)(2)—(4)]

Selecting mediators on an impartial basis would include permitting the parties involved in the dispute to agree on a mediator.  (71 Fed. Reg. 46695)

The individual serving as the mediator must not be an employee of the SEA or the school district that is involved in the education or care of the child and cannot have a personal or professional interest that conflicts with his or her objectivity  [§300.506(c)]. This is very important because it preserves the impartiality of the mediator’s role. IDEA is very clear that the mediator is not an employee of the LEA or SEA solely because he or she is paid by the agency to serve as a mediator [§300.506(c)(2)]. This is so, even though the state is responsible for paying for costs associated with mediation, including the services of the mediator [§300.506(b)(4)].

IDEA permits a public agency to establish procedures to offer parents and schools choosing not to use mediation an opportunity to meet with a disinterested party who would encourage the use of mediation and explain its benefits [§300.506(b)(2)]. In other words, the regulations allow states to establish such procedures, but do not require them to do so (71 Fed. Reg. 46695).

In any case, neither the parent nor the school district can be required to participate in mediation.

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What happens during the mediation process?

While each mediation situation is unique, generally both parties to the mediation will come to the mediation session prepared to explain their own position and listen and respond to the other party’s position. The mediator will facilitate a discussion but does not “take sides” or give an opinion on the issues being disputed. The mediator works with the parties to help them express their views and positions and to understand each other’s perspectives. The mediator helps the parties generate potential solutions and facilitates the parties’ communication and negotiation.

If an agreement is reached to resolve the dispute, the mediator assists the parties in recording their agreement in a written, signed document.

The public agency must make sure that its representative participating in mediation has the authority to enter into a binding agreement on its behalf [§300.506(b)(6)(ii)]. A parent may choose to have a friend or advocate attend the mediation session. And, while there is nothing in the statute or the regulations that prohibits a parent or public agency from having an attorney attend, the presence of an attorney could contribute to a potentially adversarial atmosphere that may not necessarily be in the best interests of the child.

CADRE makes available a number of useful resources on participating in mediation, including:

• suggestions on how to prepare for a mediation session
  www.directionservice.org/cadre/preparing.cfm
• sample “ground rules” for mediation
  www.directionservice.org/cadre/grs.cfm

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Can information shared during the mediation process be used later in due process hearings or civil proceedings?

No. IDEA requires discussions occurring during the mediation process to remain confidential. The regulations state:

(6) If the parties resolve a dispute through the mediation process, the parties must execute a legally binding agreement that sets forth that resolution and that—

(i) States that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and

(ii) Is signed by both the parent and a representative of the agency who has the authority to bind such agency.

(7) A written, signed mediation agreement under this paragraph is enforceable in any State court of competent jurisdiction or in a district court of the United States. Discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any Federal court or State court of a State receiving assistance under this part.[§300.506(b)(6) and (7)]

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How is a mediation agreement enforced?

If the parties resolve the dispute through the mediation process, they must execute a legally binding agreement that states the resolution and is signed by both the parent and a representative of the agency who has authority to bind the agency. This is clearly stated at §300.506(b)(6) (just cited above). A written, signed mediation agreement is enforceable in any state court of competent jurisdiction (a court that has the authority under State law to hear this type of case) or in a district court of the United States.

IDEA allows–but does not require–states to develop other mechanisms, such as the state complaint procedures, to enforce mediation agreements. However, a state may not require a party to use such mechanisms or delay or deny a party from seeking enforcement of the written agreement through an appropriate court. See IDEA’s regulations at §300.537.

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Summarizing Mediation

Mediation provides a positive, less adversarial approach to resolving disputes between parents and school systems. With the assistance of a skilled and impartial facilitator (the mediator), the parties involved in the dispute are encouraged to communicate openly and respectfully about their differences and to come to an agreement. The decision-making power always resides with the participants in mediation.

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References
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Committee on Education and the Workforce, U.S. House of Representatives. (2005, February). Individuals with Disabilities Education Act (IDEA): Guide to “frequently asked questions.” Washington, DC: Author. (Available online at: http://www.doe.in.gov/sites/default/files/individualized-learning/ideafaq.pdf)

Consortium for Appropriate Dispute Resolution in Special Education (CADRE). (2007). From regulation to resolution: Emerging practices in special education dispute resolution. A presentation at the OSEP Regional Implementation Meetings in Washington, DC; Los Angeles, CA: and Kansas City, MO. (Available online at:http://www.directionservice.org/cadre/rim.cfm)

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