Beware the Resolution Session- Part I

A brand new mandatory resolution session is added to the due process hearing process by IDEA’04. Section 615 (f)(1)(B). Within 15 days of receipt of a parent request for a due process hearing, the LEA must convene a meeting with the parents, a representative of the LEA with “decision making authority,” and relevant member(s) of the IEP team who have “specific knowledge of the facts identified in the complaint.” The LEA may not bring their lawyer unless the parent has a lawyer. The parties may avoid the resolution session only by waiving the meeting in writing or by participating in mediation. Section 615(f)(1)(B)(ii). ). If the parent/student’s lawyer does attend the resolution meeting, he will not be awarded attorney’s fees for his attendance if the parent is the prevailing party. Section 615(i)(3)(D)(iii). If the LEA has not resolved the complaint to the satisfaction of the parents within 30 days after receipt of the complaint, the hearing may occur and “all applicable timelines for a due process hearing” shall commence. Section 615(f)(1)(B)(ii). If the resolution session results in a written settlement agreement, the agreement is legally binding and enforceable in court, except that if either party suffers from “buyer’s remorse,” they may void the agreement within three business days after it is executed. Section 615(f)(1)(B)(iii) and (iv).
A portion of the conference committee report that discusses the resolution session states that these changes address “unscrupulous lawyers and an overly complex system” that has “led to an abundance of costly and unnecessary lawsuits.” The conference report goes on to explain that the resolution sessions are needed because “...(t)oo often, schools are unaware of parental complaints and concerns until an official complaint is filed and the legal process is already underway.” H.R. 1350 Conference Report, November 17, 2004.
A major issue that is likely to be raised in many due process hearings involves the admissibility of discussions at the resolution session in a subsequent due process hearing. Unlike the mediation section of the Act, which contains a specific guarantee of confidentiality for any discussions during a mediation session, Section 615 (e)(2)(G), there is no confidentiality protection for discussions that take place during a resolution session. I predict that many hearing officers will be faced with objections to testimony concerning what was said at a resolution session. Attorneys wanting to offer the testimony will likely argue that we must assume that Congress knows what it is doing and that Congress specifically restricted the admissibility of discussions only in mediation discussions. Lawyers wanting to exclude the testimony will probably argue that this was an oversight by Congress and that settlement talks should be protected. State law may supply the answer. Many states restrict the admissibility of settlement discussions as a matter of law or court decision to promote the policy of encouraging settlement. Those seeking to admit the testimony, however, will cite the Supremacy Clause, claiming that Congress knowingly omitted confidentiality protection. Unfortunately, the analysis of comments accompanying the new regulations does not provide any help. OSEP specifically rejected the request of several commenters to clarify whether discussions at resolution meetings are confidential because the Act is silent regarding confidentiality. 71 Fed. Register No. 156 at page 46704 (8/14/06). OSEP went on to say that although the parties could negotiate a confidentiality agreement as a part of their written resolution agreement, a state could not require the parties to a resolution meeting to keep the discussions confidential. 71 Fed. Register No. 156 at page 46704 (8/14/06)(emphasis not in original). Unfortunately, the problem is not likely to arise in situations where the resolution process results in an agreement. It is where the parties do not agree that the danger lies. After an unsuccessful resolution meeting, the danger exists that a party may offer testimony at a subsequent due process hearing concerning discussions, or worse yet, misunderstandings of discussions, that took place at a resolution meeting. The analysis by OSEP would seem to support the argument that discussions at resolution meetings generally are admissible in subsequent due process proceedings. The danger is that if discussions are not confidential, there is likely to be a chilling effect upon the parties’ willingness to speak freely, and thus upon resolution as well.
Although the caselaw is only beginning to trickle in, at least one state review officer has held that discussions at a resolution meeting are NOT confidential. See, Homer Central Sch Dist 106 LRP 65707 (SEA NY 10/27/6)(SRO affirms HO decision to admit discussions from a resolution meeting at a subsequent due process hearing. SRO concluded that discussions at a resolution meeting are not confidential as a matter of law.) Stay tuned for some interesting decisions.