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Since the 1980s, there has been a strong movement toward “alternate dispute resolution” of legal cases. Our court system is overloaded and, as a result, the U.S. Supreme Court has encouraged parties to try to resolve their battles somewhere other than in a courtroom. This is particularly true in special education matters.
After parents are involved in a special education dispute with their school district, they are usually referred to “mediation” to try to resolve the case. The term mediation strikes fear in the hearts of most parents who are not familiar with legal process. However, that fear is based primarily on myth and a misunderstanding of what happens in mediation.
The following are five things every parent should know about special education mediation. Hopefully, this should also make you feel more comfortable with alternate dispute resolution.
1. Mediation is NOT trial.
Most people have some idea of what a trial is, either because of the news or some television shows. (Keep in mind that those versions are extremely edited and don’t necessarily accurately portray what a trial is like.) Mediation is nothing like trial. During mediation you don’t present evidence; you don’t have to question witnesses; you don’t have to make legal arguments; and, you don’t have to convince anyone that you’re right. Rather, mediation is a very informal opportunity to explain to an independent person (mediator) what you believe the problem is and how you would like to fix that problem. It’s that simple.
2. The mediator does not take sides in the dispute.
The mediator is an independent and objective person assigned to try to get the parties to find a solution to the dispute. He or she is not interested in who wins or loses; the mediator simply wants to get the parties to agree on how to fix the problem. Thus, the mediator’s role is to facilitate discussion among the parties to see if they can find common ground. He or she is not a judge and will not make any legal decisions or provide any legal advice to the parties. If any agreement is reached, it is done so by the parties themselves and the mediator will simply formalize that agreement.
3. Mediation is confidential.
Because mediation is essentially a form of settlement negotiation, it is completely confidential. Nothing the parties say during mediation leaves the mediation room. Confidentiality encourages open and honest dialog among the parties. Why? Often parties don’t want to “give up” anything; confidentiality assures them that even if they “give up” something during mediation, they haven’t given it up forever unless it becomes part of a settlement agreement. Thus, any such concession on facts or remedies may not be used against a party if the mediation is not successful.
4. Mediation is (usually) free.
I can’t speak for every special education mediation system across the country, but most of them provide mediation free of charge to the parties. The only expense incurred by the parties is the cost to travel to and from the mediation. (Additional expenses may be incurred if they have to pay for their attorneys’ time.) While private mediation is not free, it usually occurs only if the free mediation fails and the parties wish to continue with mediation to avoid going to trial.
5. Settlement reached in mediation is enforceable.
If the parties reach settlement during mediation, the mediator will help prepare a settlement agreement with the terms upon which the parties have agreed. The mediator will do this the day of the mediation so that the parties don’t have to come back again or change their minds after they’ve left. Once a signed settlement agreement is in place, it is as enforceable as a judgment from a court. If one side doesn’t comply with the agreement, the other side can take the agreement to court and have a judge enforce it. From a parent’s perspective, this is a good thing because if a school agrees to put in place certain services or accommodations for the child by a certain date, it will do so or face penalties.
As you can see, mediation isn’t as scary as it sounds. You really have nothing to lose by going and listening to how the other side views the dispute. You never have to agree to anything, but mediation may be a very effective way to resolve the problem before incurring the expense, time and hardship that a trial (due process hearing) causes.