Wednesday, December 26, 2007

Dispute Resolution Methods - Part III

Continuing our discussion of the four dispute resolution mechanisms under IDEA, this week we will examine mediation and the major changes in mediation under the 2004 reauthorization and the new federal regulations. As previous posts have noted this is my favorite method. Mediation is the only option which allows repair of the relationship between parents and the school district. A good mediator will work on any relationship issues. Because the ultimate concern is the education of a child, a good on-going relationship is critical.

The major change in the mediation section of the law under IDEA’04 is the new requirement that a state must make mediation available to the parties at any time. Section 615(e)(1). The statute previously had only required that mediation be available after a due process hearing had been requested. See 34 CFR Section 300.506(a).
OSEP declined the invitation of several commenters to enact a regulation giving due process hearing officers the power to require mediation in certain cases. 71 Fed. Register No. 156 at page 46694 (August 14, 2006).
A number of changes have been made to the section on mediation agreements. Any agreement must now state that mediation discussions are confidential and may not be used in a subsequent due process hearing or court proceeding. Section 615(e)(2)(F)(i). The IDEA now states that mediation agreements are enforceable in court. Section 615(e)(2)(F)(iii). One thing to watch here is whether a mediation agreement is enforceable in a due process hearing. Given the courts general insistence upon exhaustion of administrative remedies, it is possible that the courts may require an administrative hearing before ruling upon a mediation agreement issue. OSEP noted that although it is not required, nothing prevents parties to a mediation from agreeing to have the mediator facilitate an IEP team meeting. 71 Fed. Register No. 156 at page 46695 (August 14, 2006).
Because mediators are not selected by the parents, states are not required to provide a list of their mediators or their qualifications to the parents or the public in general. 71 Fed. Register No. 156 at page 46695 (August 14, 2006). Mediators must be selected on a random, rotational or other impartial basis, and one such impartial basis would be agreement by the parties. 71 Fed. Register No. 156 at page 46695 (August 14, 2006).
Regarding confidentiality, OSEP agreed to change a regulation in order clarify that all mediation discussions are confidential and may not be used in any subsequent due process hearings or civil proceeding. 34 CFR Section 300.506(b)(8); 71 Fed. Register No. 156 at pages 46695-96 (August 14, 2006). The previous regulation permitting a confidentiality pledge at the outset of mediation was removed, however, OSEP noted that such removal should not be construed as an attempt to prohibit states from requiring such confidentiality pledges. 71 Fed. Register No. 156 at page 46696 (August 14, 2006).
OSEP declined to regulate additional requirements concerning conflicts of interest for mediators, but OSEP did note that it believes that it would likely be improper for a mediator to be subsequently assigned as a hearing officer for the same dispute. 71 Fed. Register No. 156 at page 46696 (August 14, 2006).

CADRE Website: All special education mediators should frequently visit the CADRE website. The Consortium for Appropriate Dispute Resolution in Special Education is an OSEP funded group that encourages mediation, IEP facilitation and other means of special education dispute resolution that are less formal and legalistic than due process hearings. Their excellent website is loaded with helpful articles, materials, trainings and other information and may be found at A link to this website is also listed as Special Education - Dispute Resolution on the left side of this blog under helpful links.

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