Due Process Hearings
In this article, you will find:
What about mediation
Due to a recent amendment to IDEA, every state is required to have a mediation process available to attempt to resolve disputes without going through a hearing. Mediation is already available in many states.
In mediation, parties meet with a trained mediator, who has no stake in the outcome of the dispute. The mediator will help the parties articulate their positions and work with each side - often in separate rooms - to attempt to find a middle ground for compromise. In order to promote free discussion, statements made and offers extended during the mediation session may not be used in evidence at a hearing. If the process is successful, an agreement is written and signed and, usually, incorporated into an amended IEP. Under the new IDEA provision, parents can choose not to participate in mediation and to go directly to hearing, but they must at least be given information about mediation and its potential advantages.
In our experience, mediation can be a very effective way to resolve issues if the parties are already close enough in their positions to make it worthwhile. Thus, where the parents are seeking only a few more services within the public school program, mediation is often worth a try. Where they seek an outside placement, however, mediation has less chance of succeeding, unless they have a very strong case and the primary barrier to resolution has been inattention by the special education administrator.
Done right, mediation can be a healthy way to find a compromise, leaving each party with their dignity, achieving improved services for the child, and allowing the parties to channel their energies into making a program work rather than litigating. Where it is unsuccessful, mediation can delay resolution of the dispute and, in some cases, simply intensify the hard feelings between school and family. To avoid delay, it often makes sense to schedule and prepare for a hearing even while going to mediation.
An alternative to mediation in some cases may be to schedule a pre-hearing conference with the hearing officer. Such meetings are used primarily to give the hearing officer a summary of the parties' positions, deal with any pre-hearing disputes over document discovery and the like, and address pre-hearing motions. Some hearing officers are good at using such conferences as an opportunity to promote settlement. Because they will ultimately decide the case, hearing officers can sometimes be more persuasive than a mediator in urging a party to compromise. By the same token, hearing officers will sometimes avoid getting into such discussions at all lest they be viewed as prejudging the matter.