Resolution Session Tips
Greetings. The tips below are designed to help you with your resolution session in your IDEIA/Article 7 due process case.
Why do we go to a resolution session?
The resolution session is the IDEiA’s attempt to try to get the parties to resolve their differences short of hearing, which is almost always a good thing.
Even if you end up NOT resolving matters in the resolution session, it’s a way for you to show the hearing officer that you are willing to make a good-faith effort to try to resolve your case.
Even though there are several reasons that make it less likely that the issues can be resolved at a resolution session (including the fact that the emotions are still raw on both sides that close to the time the hearing is requested and also that the same exact parties usually have already met several times in the past without resolving the matters), it is still worth it to try to agree early on.
Do the attorneys normally attend the resolution session?
No. In fact, the IDEIA specifically discourages the attendance of counsel for either side. If the parents insist on having their counsel there, then the school has the right to have counsel there. However, the opposite is not true. The school cannot have their attorney there without the parent’s attorney also there.
Further, the IDEIA says that attorney fees are not available for attorneys to attend the resolution session, meaning if you want your attorney there, you have to pay that cost out of pocket, which can be pricey if you include the drive time, mileage and time at the resolution session itself.
Who will be there?
Usually, the attendees of a resolution session are the parents, the school’s special education director and the cooperative’s director (if you have a cooperative). Because it is not a case conference, the full complement of people need not be there.
What’s the first thing we should do after the resolution session starts?
Handwrite on a piece of paper the following:
“I agree that the purpose of this meeting today on _____________ (date) is a “resolution session” as required by the IDEIA and that this is not a case conference.
I agree that nothing that is said today will be presented in any due process hearing, either in written documents or in testimony.
I understand that the purpose of today’s meeting is not to rewrite the student’s IEP.”
Then collect the signatures of everyone at the resolution session, including yourselves and mail this document to me, keeping a photocopy of it for your records.
Can I leave any time I want?
Yes. Although you must make a good-faith effort to participate in the session, there is no requirement in the law that you must stay until the school says it’s OK to go. They are not in charge of the resolution session. You are an equal participant and have as much right to say it’s over as the school employees do. Nor is there a requirement in the law that everyone must stay for a certain period of time.
If during the resolution session, you feel you are being badgered or abused or you feel that the discussions in the resolution session are not moving you closer to resolving all of the issues in your case, then you can leave. In fact, some families choose to leave if the school folks won’t sign the agreement to have the “resolution session” talks be considered confidential.
Since the purpose of the resolution session is to come to a resolution, please ask the school to respond to our “Proposed Resolutions” in our letter requesting hearing. If they are not willing to discuss those items, then it’s likely your meeting is not going to be productive and will be a waste of everyone’s time.
Keep in mind that even if you do not settle the case in the resolution session, I will work diligently to try to settle the case with the school’s attorney, which is, in my opinion, much more likely to result in a settlement than is a sit-down session with the same folks who you couldn’t agree with in prior case conferences.
Should we sign a partial settlement agreement at the resolution session?
I would advise against that because that puts you in a worse position if we do go to a hearing. School often try to resolve the really bad stuff that they did wrong and then not agree to resolve some of the other stuff (usually the weaker issues for us in the case). They do this to put themselves in a better position to win the hearing, basically leaving the stuff that they're willing to take their chances on while cleaning up the bad stuff. Therefore, it’s best to agree fully on all issues or on none of them.
In a hearing situation, you must prevail in order to get the school to pay your attorney fees. If the school is able to eliminate the worst violations but not resolve all of the problems, that lessens the chance that you will prevail and get your attorney fees paid.
Should we ask for the school to pay our attorney fees at the resolution session?
Yes. Unless you are fabulously wealthy and have money to burn, you should insist on an agreement for them to pay your attorney fees for you.
If you sign an agreement that does not include the fees, then you are stuck with paying for them yourself.
Is it likely we’ll resolve the case at the resolution session?
I don’t believe it’s likely that you’ll settle there because it’s too soon after the hearing was requested. You’re ticked off, or you wouldn’t have filed, and the school is ticked off that you filed for a hearing against them. Also, you’ve already been meeting with these folks in case conferences recently and weren’t able to get things resolved there. It’s not impossible that you’ll resolve things in the resolution session. I just believe the chances are low because of the factors described above.
Is the resolution session our “last chance” to resolve the case before a hearing?
No. Definitely not. The school’s attorney and I will work to try to resolve the case via letter-writing and phone calls back and forth. That’s the mechanism that resolves most special education cases, rather than mediations or resolution sessions.
The fact that you do not resolve it in your resolution session will have no bearing on whether we’re able to settle the case without having to go to hearing.
If we DO go to hearing, what’s the timeline?
Although the due process hearing is to be completed within forty-five (45) calendar days, the times line does not begin until the earliest of the following:
-- The written decision of the parent and public agency to forgo the Resolution Session;
-- The decision of the parent and public agency to request mediation;
--The passage of thirty (30) calendar days from the public agency’s receipt of the hearing request with no written agreement achieved through the Resolution Process. (So, see date of hearing request, add 30 days from receipt of that, plus 45 calendar days for completion of hearing.)
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