Under the Individuals with Disabilities Education Act (IDEA), school districts must make mediation available as a means of resolving special education disputes. Mediation may be requested at any time to resolve disagreements regarding special education programming and services.
Participation in mediation is voluntary and may not be used to delay or deny a due process hearing. Mediation must be conducted by a qualified and impartial mediator who is trained in effective mediation techniques. The mediation must be scheduled in a timely fashion at a location that is convenient to both parties. Mediation should be provided at no cost to the parents.
The mediator is an impartial, knowledgeable third party who assists the parents and school district in reaching a mutually agreeable resolution to their special education dispute. The mediator's role is not to provide legal advice.
Choosing an Experienced Mediator
It is essential to carefully choose an experienced, knowledgeable mediator. Mediation is more likely to be successful if both parties feel confident in and trust the impartiality and expertise of the mediator. Because the special education field and the applicable laws are complex, it is also helpful to have a mediator who is well versed in the special education vernacular and the respective legal rights of the parties involved.
It is crucial to ensure that the key players are available to participate in mediation. Typically, the key players include the parents, a school administrator with knowledge about district programs and authority to commit resources and the child's teacher or other service provider. Ideally, the mediation should not include a huge cast of characters, especially those unfamiliar with the child. Too many participants make it more difficult to clearly define the real issues and to reach a consensus. Because the mediator's role is act as a facilitator and not to provide legal advice, both parties may also wish to have legal representation at the mediation.
Confidentiality of Mediation
IDEA provides that discussions during mediation must be kept confidential and may not be used as evidence in any subsequent due process or civil proceeding. The purpose of confidentiality is to encourage the free exchange of concerns without fear that the information may be used against a party in the future.
Advantages of Mediation
Mediation is particularly beneficial in special education disputes because the parties ordinarily will have a continuing relationship and share a common goal of promoting the educational development of the child even though they may not agree on how to achieve that result. Mediation permits the parties who know the child best to cooperatively discuss the issues, jointly problem solve and generate a variety of educational options. Instead of having a decision imposed by a third party, the parties retain decision making authority. Together, the parties are able to identify solutions that neither would have contemplated alone. When the parents' familiarity with the child is joined with the school personnel's expertise, innovative and enduring solutions are often reached. With the help of the mediator, the parties are able to craft their own unique agreement that satisfies the interests of both parties.