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Mediation

EVERYTHING YOU EVER WANTED TO KNOW
ABOUT MEDIATION BUT WERE AFRAID TO ASK

Going into a special education case mediation, the list of “Proposed Remedies” from your due process hearing request letter is typically the starting position for the day.

You then allow the school to respond to your list of demand as far as the things that they are willing to do and what their counteroffer will be.

Typically, the mediator starts us all out in the same room, to give his or her spiel about how mediation works.

The types of things that the mediator will explain about the process:

  1. It’s voluntary. You are not required to be there, and if you feel that the negotiations are not productive, you can stop them and leave. No one can order you to agree to anything or make you stay if you feel we have reached an impasse.
  2. What everyone says in terms of the offers going back and forth is considered confidential, meaning neither side can bring it up in the hearing. The reason for this is we want people to speak freely and creatively about ways to resolve their differences, without a concern that what they say will be used against them later.
  3. That the mediator is not there to pick sides. He or she doesn’t care who’s “right” or who is “wrong” like a hearing officer would. So, you won’t spend much time, if any, talking about the screwups in the past. We are allowed to, but it’s just not the best use of time to go through the litany of things the school or its employees did that you’re steamed about. What we will focus on is solutions going forward and compensatory time/services for past wrongs. That’s not to say that we cannot bring up something that happened in the past, because sometimes that’s useful to help the mediator have a context for understanding why we want something to be written a certain way in the agreement or why it’s important to us.
  4. The mediator usually will let you know that if you want to say something to him/her that you do NOT want to have repeated to the other side, that you can. Just let him/her know which things you don’t want the other side to hear. He or she will respect that.

After the mediator gives the opening ground rules talk, he or she will put the school in one room and us in another and will shuttle back and forth between the two rooms. During a mediation, you will have a lot of down time. So, bring something to read or a laptop to check email or whatever. Otherwise, you will get bored because we likely will be there all day. Seven or eight hours is typical. I think my record mediation so far is 12 hours. Short mediations are typically unsuccessful mediations – meaning impasse is reached quickly, and the decision to end the session comes quickly because of that.

During the mediation, since it is not a formal proceeding, when we give information to the mediator, it’s more an informal discussion than a formal speech. Either the parent or the attorney can talk, ask questions, etc.

You'll like the process. It probably will be the most friendly interaction you've had with the school.

Usually for my clients, I will want to meet with you about an hour prior to the mediation to go over our list of demands, answer any questions you might have, answer any questions I might have, etc., before we head to the mediation site.

The wonderful thing about a mediation is that 90 percent of the time they are successful. That’s good because in a mediation YOU get to craft the result instead of relying on the hearing officer, who is someone who doesn’t really know you or your child, to come up with solutions to the often complicated problems that drove you to file for due process.

This brings to mind a story. There was a judge presiding over a particularly contentious child custody situation where the parents couldn’t reach an agreement, and he turned to the father and said, “Do you love your child?” He said, “Yes. I do. Very much.”

Then he turned to the mother and said, “And what about you? Do you love your child?” She said, “Of course, I do!”

He then said, “Well, I don’t love your child. So, why is it that I’m the one making all these decisions for your child?”

Anyway, in reaching a deal with the school in a mediation, we know what we’re getting and we’ve had a hand in crafting it, which is almost always better than throwing it all to chance.

An additional advantage of a mediation is that you can ask for and get things sometimes that no hearing officer would ever order. As long as the other side agrees, pretty much anything is a possibility.

The mark of a “good agreement” in a mediation is genuine give and some take on both sides and perhaps feeling like you might have gotten a little bit more if you had pushed a bit more but feeling relieved that it’s over.

Not All State Mediation Systems are Created Equal

In Texas, most of the mediators are also special education hearing officers and all are attorneys. This is especially helpful because the language and terminology inherent in special education matters can be a stumbling block for someone not familiar with them. The mediation process in special education cases in Texas is a very good system, and I highly recommend it for clients going through the special education system when differences arise between them and the school districts.

In Indiana, by contrast, neither parents nor school districts have found the mediation system to be all that beneficial, as evidenced by the fact that schools and parents actually prefer to hire and pay for private mediators, rather than using the no-cost DOE mediators. This has been going on for several years.

When folks would rather pay out of pocket for a mediator than use the existing system, which would provide a no-cost mediator, this is a sign of a broken system. However, this has been the case for many years, and no changes were made to Indiana’s special education mediation system, even though numerous changes to Indiana’s Article 7 special education rules were put into place in 2008.

Perhaps some day Indiana will fix its broken mediation system, benefiting both schools and families.

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