Friday, December 16, 2011

Mediation vs Hearings: SpEd Dispute Resolution

MediationImage by TomNatt via Flickr

This week I finished a decision from a due process hearing and I conducted a mediation.  Dangerous combination.  This got me to thinking about dispute resolution under IDEA.  I have long contended that mediation is a better way to resolve special education disputes. 

A due process is increasingly like a court trial.  Very adversary in nature; lots of venom.  There is of course plenty of place for venom in our society.  (Otherwise we wouldn't really need lawyers would we?)  I'm just not sure that the education of a child is one of them.  Don't get me wrong, I love doing hearings.  I have been doing some type of work as a hearing examiner, hearing officer, administrative law judge as a part of my job since 1979.  I train hearing officers, special ed and others; I am a certified hearing official.  But this is really not about me, it is about those kiddos with disabilities.

Mediation unlike the adversary hearing offers the possibility of repairing the troubled relationship between parent and school officials.  Because education demands cooperation and collaboration between parents and the schools, mediation can really be a good way to go in the long run.  I have talked to parents who won a due process hearing, but still felt like they had lost.  There is an emotional cost in using the hearing process, and it can be significant.

There are situations that require the hearing process, but from my vantage point, mediation is often a better road.  

What do you think?
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  1. Mediation is very useful and saves a lot of time.

  2. Mediate, with genuine interest in: (a) resolving any disagreement with the student's needs first above all, and (b) maintaining (and maybe even strengthening) family-school relationships.

    DP only when faced with utter recalcitrance that requires impartial intervention and decision-making. I have never seen a family-school partnership survive DP. Maybe it can happen, but I haven't seen it. Because of lingering resentments and suspicion on both sides, the student ultimately loses regardless of whether the parent or district prevailed at DP.

  3. Mary Anne & ME,

    Thanks for your comment.


  4. Yes Jim, I think you are right. Even if parents prevail and get everything they ask for, it is the losing District that must then provide the service or ??? If they went to the trouble of contesting the DP, they are not likely to be "more than happy" to give the child what he needs.

    If there is a comp ed award and the Disrict needs to provide it, I have witnessed that the unspoken air of adult emotions surrounding the situation confuse and distracted the child from the full benefit of the compensatory instruction.

    So yes, I can definately see how going to hearing does not result in the 'win' either party is hoping for.

  5. In our state divorcing parents are required to attend a parenting class on how to get along and act civil for the sake of the child.

    In some cases it would be helpful if parents and involved District staff were required to complete a similar course if a DP is filed.

  6. I've gone through both. In theory, mediation makes great sense. In practice, both processes are VERY dependant on the cast of characters.

  7. Anon x 3,

    Thanks for your comments. It is nice to get some different perspectives on this difficult decision.

    Jim Gerl