In California, approximately 96% of due process complaints filed with the Office of Administrative Hearings are resolved without a hearing….
Parents and school districts often experience positive relationships. There are times, however, where differing perceptions of what the student needs and can accomplish arise and create a barrier to reaching an agreement. Parents and school districts can disagree about which educational program, methodology, or service is necessary.
In 2004, when Congress amended the IDEA, mediation was added as a procedural safeguard to resolve disputes between parents and school districts. 20 U.S.C. Section 1415(e) requires school districts establish procedures to resolve disputes through a mediation process, at minimum when a hearing is requested. Mediation is a voluntary process where a third party (mediator) assists parties who have come together to resolve a dispute. In California, parties can request mediation with or without filing for a due process hearing.
The reauthorized IDEA also added a requirement that the local educational agency shall convene a meeting within 15 days of receiving notice of a parents’ request for a due process hearing. This meeting is called a resolution session. The resolution session is guided by law in that it shall:
- Include a representative of the agency who has decision-making authority;
- Only includes attorneys if the parents bring an attorney;
- Allow parents to discuss their complaint and the facts that form the basis of their complaint; and
- The school district must be provided an opportunity to resolve the complaint.
The resolution session can only be cancelled through an agreement by the parents and the school district. The parties may waive the resolution session to use mediation instead.
In my experience, schools typically want to waive the resolution session and participate in mediation. I like the idea of a resolution session but have found that it often doesn’t result in a resolution of the claim. By the time a complaint has reached a level to require due process, the relationship has been broken and a third party facilitator is helpful to bring the parties back together.
When considering mediation for a special education claim, it is important to remember the benefits of mediation. Mediation is less expensive than due process. Mediation requires the parties to make compromises and often starts the process of repairing the relationship. Mediation is confidential and allows creative solutions.
Parents who wish to bring an attorney to mediation need to understand that attorneys are not permitted to attend a “Mediation Only” request with the Office of Administrative Hearings. Therefore, it may be necessary to file a Request for Mediation and Due Process Hearing.
As a trained mediator, I understand the value of an informal resolution of special education claims. Children are best served when the parties can come to a resolution to provide an appropriate education without the necessity of holding a due process hearing.
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