Effective March 1, 2021, attorneys are now permitted to participate in special education mediation meetings if the parent chooses to attend with counsel.
What is the difference between a resolution session and mediation?
This is similar to the current standard for Resolution Session Meetings, but a more formalized process. The benefit of mediation is that it allows the decision-making to remain with those most affected parties – the parents and LEA.
What is special education mediation?
Mediation is a confidential, private process in which a neutral third-party guides disputing parties in a constructive conversation—essentially an assisted negotiation. The mediator helps the parties express their positions and proposals, listens thoughtfully to each, clarifies issues in dispute, searches for solutions that address the needs of all and works toward a fair, workable settlement to the dispute. The parties themselves are the decision-makers.
Special Education Counsel can assist their clients in understanding that mediation is essentially a problem-solving process rooted in a thorough discussion of all issues in dispute, the exchange of information, ideas and proposals and the opportunity to seek creative solutions to the dispute.
Special Education Mediation Services
Attorneys can assist the mediation process moving forward by:
- Explaining the process to their clients.
- Inform clients of opportunity for private discussion/caucuses.
- Being prepared.
- Ensuring all documents and other materials essential to the discussion have been exchanged prior to mediation.
- Framing the issues.
- Discussing the potential outcomes with your client.
- Assisting your client in having flexibility to resolve.
- Providing a realistic view of the cost and risk associated with litigation.
The attorney’s role is to step away from advocacy and to focus on advice and collaboration. There is no cost to the parties to participate in mediation as the Office for Dispute Resolution (“ODR”) pays the mediator. ODR is advising participants to address attorney’s fees outside of the mediation session so that the focus can be on the educational issues.
As with most special education disputes, payment of parents’ attorney’s fees often becomes a point of reaching a negotiated compromise. Parents of disabled children are incentivized to pursue their special education rights with a promise of payment of attorney’s fees should they succeed in enforcing their child’s rights. Prevailing party status is not so straightforward, however, when a lawsuit is resolved via voluntary mediation. In mediation there is no determination of a “winner.”
We recommend requiring an agreement between the parties that there are “no prevailing parties in mediation” which is consistent with the objective of mediation. This will permit the parties to reach an agreement regarding fees while in mediation. Mediation offers the parties a unique venue to resolve conflict that is more optimal than litigation for both parties.