Feb 14, 2008
The last post began a short series of articles on dispute resolution under the IDEA 2004. That article ended with the requirements for filing a due process complaint notice. This post covers mediation and next week's post will cover the new resolution process.
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Mediation is a process in which an objective and impartial third party (the mediator) works with both sides of a dispute to help them reach an agreement to resolve the dispute. Unlike a hearing officer, the mediator does not weigh evidence and resolve legal issues. Under the IDEA, the mediator’s job is to help the parents and school district reach an agreement. In that process the mediator will meet with each side to the dispute, separately or together (depending on the style of the mediator) and try to resolve disagreement.
For the mediation process to work, the participants need to be able to speak freely. Thus, the discussions that occur in mediation under the IDEA are confidential. Prior to the IDEA 2004, mediation agreements resolving special education disputes were not legally binding. The agreements were voluntary and each side relied on the other’s good will to comply with the agreement. Congress, however, received comments that since mediation agreements could not be legally enforced, parents and school districts were sometimes reluctant to use the process. Thus, in the IDEA 2004, Congress required that if an agreement is reached in mediation, it can be enforced in State court or a United States district court.
Mediation can be used to resolve any special education issue, including issues that occur before a due process complaint notice is filed. So, mediation can be used to resolve disagreements without requesting a due process hearing or it can be used to settle disputes after a hearing has been requested. Moreover, to encourage mediation, the IDEA requires that the state education agency maintain a list of qualified mediators and bear the cost of the mediation process.
So, mediation does not cost the parents or the school districts other than their time in the mediation. Mediation is voluntary and both parents and the school district must agree for the mediation to occur. Additionally, the state education agency must assure that mediation is not used to deny or delay a parent’s right to a due process hearing. Thus, by agreeing to mediation neither the parents nor the school district give up the right to pursue a due process hearing if the mediation is unsuccessful.
Finally, while this article focuses on resolving disputes regarding children with disabilities under Part B of the IDEA (services for children aged three to twenty-on), mediation can also be used to resolve disagreements under Part C (services for infants and toddlers from birth through age two).
