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Mediation

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					 Mediation
Kathleen S Whittier
             Mediation Is...

• intervention between conflicting parties to
  promote reconciliation, settlement, or
  compromise (Webster’s Dictionary)
• a skill; an art which, when done
  effectively, can result in a solution
  acceptable to both parties.
• Mediation allows both parties to “win a
  little, and lose a little”, but no feels they
  have lost it all.
 WHAT IS SPECIAL EDUCATION
   MEDIATION ALL ABOUT?
• All school districts must offer special
  education medi-ation to parents (for their
  child with a disability) as a means to
  resolve disputes relating to the:
• identification,
• evaluation,
• educational placement or
• the provision of a free appropriate
  public education
                ADVANTAGES
                DISADVANTAGES
Mediation:                   Due Process:
• Relatively inexpensive     • Specific guidelines
       No power of           • Expensive
• Informal enforcement       • Formal process
• Non-directive              • Lengthy process
• No specific format         • Power of enforcement
• Compromise                 • Win/lose situation
• Lack of skilled mediator   • Trained hearing officers
• Follow-up                  • Little or no follow-up
A mediator should be called in when
 one or all of the following situations
                  exist:

• Communication has broken down
  between parties
• Mistrust exists
• Agreement cannot be reached
• Either party requests mediation
• To be optimally
  successful, both
  parties must agree to
  the mediation
  process.
 Prior to the meeting, the mediator should
contact both parties to explain the following:
  – Who they (mediator)    – The structure of the
    are                      negotiation sessions
                             (process)
  – The specifics of the
    meeting to be set up   – What information
                             each party needs to
  – That the other party     prepare, if any
    will be contacted
                           – Each party’s rights
There should be agreement before
        the meeting as to:

• Date, time, place of meeting

• Purpose of meeting

• Primary issues to be dealt with
  (agenda)
         Mediation must be
• scheduled in a timely manner usually
  within two weeks of the parent’s written
  request to the CPSE, CSE or Board of
  Education.
• held in a location that is accessible and
  acceptable to both parties
• meeting should be held at a neutral site,
  not at the school
  New York State law requires that a
 Community Dispute Resolution Center
              (CDRC)
• conduct special edu-cation mediations

• Each Center is staffed by a number of
  highly qualified mediators

• mediators are not employed by the
  school district or by the State
  Education Department.
• mediators are volunteers who have
  various occupations

• all have the special training and skills
  needed to facilitate the mediation
  process.
              LOGISTICS
Make certain where the meeting will be held
 is:
  – On “neutral territory”
  – Of sufficient size
  – Has adequate, comfortable seating, light
  – Has temperature control (heat if it’s cold,
    windows or air-conditioning if it’s warm)
  – Insures privacy
  – Is available for as long as is necessary
 The mediator should reiterate the
            following:

• The purpose of the meeting

• The rights of each party

• The structure of the meeting (how it will run)

• The mediator’s role (facilitator, not decision maker)
• The main (priority) issues

• What s/he hopes to accomplish

• That s/he might want to call for a
  recess or caucus to talk to either party
  privately (and confidentially).
  COOPERATION IN REACHING
      AN AGREEMENT
Special education mediation involves
• parent(s) or guardian(s) of a student
  with a disability and
• a represen-tative of the school district
• working collaboratively with a
  mediator, who is an independent
  person.
  The mediator helps the parent(s) and the
    school district rep-resentative resolve
              disagreements by:
• asking ques-tions and discussing all
  information with both parties,

• reaching a more complete understanding of
  each other’s concerns and

• agreement upon the special education
  program for the student in a coop-erative and
  timely manner.
    At the end of the mediation
             session
• whatever the parent and the school district
  rep-resentative agree should be done is fully
  described in a written agreement.

• CPSE or CSE must immediately amend the
  student’s individualized educa­tion program
  (IEP) to be consistent with the mediation
  agreement

• district will then arrange to carry out the
  agreement.
• Agreement may be reached on any or all of
  the issues.

• Any issue(s) not settled at the mediation
  session can be discussed further with the
  CPSE or the CSE

• Any issue(s) not settled at the mediation
  session can be brought to an impartial
  hearing.

• agreement reached in mediation is binding
  upon the parties.
• Any discussions that take place during
  medi-ation are confidential
•
  cannot be used as evidence in any
  impartial hearing, appeal to the State
  Review Office or civil court proceeding.
•
• The parties to the mediation process
  may be required to sign a
  confidentiality pledge prior to
  commencement of the process.
    NO COST TO PARENTS OR
       SCHOOL DISTRICT
• Neither parents nor school districts are
  responsible for the costs of special
  education mediation

• costs are the responsibility of the State
  Education Department

• Parents and representatives of school
  districts are in no way obligated to agree
  to services or programs which they do not
  feel are appropriate for the student
 HOW TO REQUEST MEDIATION

• parents may request mediation by
  completing the Request for Due Process
  Proceedings form

• parent sends it to his/her child’s CPSE,CSE,
  or to the school district Board of Education

• school immediately forwards a parent’s
  request to the local Community Dispute
  Resolution Center
However,
mediation is voluntary
How is special education mediation
different from an impartial bearing?
 – mediator facilitates communication between
   the school district and the child’s parent or
   guardian to help them reach agreement
   regarding the issue(s).

 – an impartial hearing, the hearing officer
   ren-ders a decision based on evidence and
   testimony.
How does the use of mediation affect
 parents’ other due process rights?
•   does not in any way affect the        •   does not diminish or limit the
    parent’s other rights to due              rights of
    process, such as the right to
    impartial hearing                     •   a parent, including the right to
                                              request an impartial hearing
•   parent can request an impartial           subsequent to mediation (section
    hearing at any time before, during,       4404-a of Education Law).
    or after the mediation
                                          •   a parent may request an impartial
•   Requesting an impartial hearing           hearing after terminating
    prior to or in the absence of             mediation.
    mediation does not consti-tute that
    a person has failed to exhaust
    administrative remedies
    Is mediation voluntary?


• Mediation is voluntary on the part of
  the parent
• School districts must participate in
  mediation if a parent requests it.
  What happens if a parent chooses
  not to use the mediation process?
• the school district may require the parent to
  participate in a meeting with a neutral party who
  is under contract with a CDRC to encourage the
  use and explain the benefits of mediation

• representative of the CDRC will contact the
  parent to set up the meeting.

• This meet-ing is no cost to either party.
Where will the student be placed
      during mediation?


• The student will remain in the current
  school program, unless the parent and the
  school district agree on another
  placement.
     What are the qualifications of
             mediators?
Volunteers
• receive specialized training in conflict resolution from
  one of the Community Dispute Resolution Centers

• receive updated training at least two times per year

•   in addition teach mediator who will conduct special
    education mediation has received training in special
    edu-cation laws and regulations from the State
    Education Department.
     What are Community Dispute
        Resolution Centers?
• nonprofit agencies

• provide community dispute resolution services through
  the Unified Court System of the State of New York

•   serve all 62 counties in the State

• assist many individuals in resolving minor criminal and
  civil matters such as rent disputes and marital problems

•   As of July 1995, all Centers have provided special
    educa-tion mediation.
    Who can attend mediation?
•   parent(s) or guardian(s)          •   Since media-tion is intended to
                                          improve communication, the
•   a representa-tive of the school       parties represent themselves in
    district attend mediation             discussions regardless of who
                                          accompanies them.
•   Others may accompany either
    party, including an attorney,     •   school district representative who
                                          attends the mediation should be
                                          adequately informed and
•   attorneys’ fees cannot be             authorized by the school district to
    awarded for mediation                 enter into an appropriate
                                          agreement

                                      •    content of discussions held during
                                          the meeting will remain
                                          confidential regardless of who
                                          attends.
Where will the mediation take place?

at a neutral site arranged by the local
  Community Dispute Resolution Center

Center will contact both parties to be sure
 that the time, date, and location for the
 mediation meet-ing are convenient
Is a school district required to
  provide the par-ent with his/her
  procedural safeguards?



               Yes
 Is the written agreement reached in
 mediation binding upon the parties

                      YES

must be immediately implemented

CPSE or CSE must immediately amend the
 student’s IEP to be consistent with the mediation
 agreement
                       .

If mediation does not result in an agreement
   and an impartial bearing is initiated, can
   medi-ation discussions or summaries be
   submitted at the bearing?

No. Only the written mediation agreement may be
 pre-sented as evidence at an impartial hearing
 subsequent to mediation.
• No summary of actual discussions or
  offers of settlement will be permitted.
How do parents feel about
 their experiences with
 mediation?
• I was informed of certain valuable information that
  previously was unknown to me

• It was a good experience.

• It was helpful to know the system and to have an
  agreement.

• I’m very happy with the result of this meeting. I hope that
  the decision will be the best for my child.

• I was very pleased with the special education mediation
  services, the way they conducted the mediation. Thank
  you.
What have school district representatives
said about their mediation experiences?
• It is an easier way (than an impartial hearing) to
  resolve simple issues concerning school or
  placement with others.

• Quick, simple and effective resolution to the
  presenting problem.

• This setting is less adversarial (than an impartial
  hearing); less formal and more conducive
  toward resolving the issues at hand.
• The mediators were good listeners and very fair.
  I am pleased that mediation exists - it’s a great
  idea.

• Friendly atmosphere, good attitude toward the
  concerned parties.

• An opportunity was presented to reduce the
  par­ents’ anxiety and concerns with regard to
  the overall school/learning situation
     How can I get more information
 regarding special education mediation?

Additional information may be obtained by
  contacting your

• Committee on Preschool Special Education,

• Committee on Special Education,

• or your local Special Education Training and
  Resource Center (SETRC).
     Additionally, information may be
                 obtained
• Office of Vocational and Educational Services
  for Individuals with Disabilities (VESID), at (518)
  486-7462 or

• the Community Dispute Resolution Centers at
  (518) 465-2500.
• The Special Education Mediation document that
  served as the basis for information for these
  overheads is also available at the VESID
  website at: www.nysed.gov/vesid/vesid.html
      SAMPLE REQUEST FORM
District Letterhead
  Request for Due Process Proceedings
  Federal law requires that a parent or attorney
  representing a child provide notice to the school district if
  the parents have a disagreement regarding the referral,
  evaluation, or placement or their child or regarding the
  provision of special education services. (This notice will
  remain confidential.) This form has been developed to
  assist you in describing your disagreement and
  accessing the due process procedures to which you are
  entitled. Please complete the entire form. Failure to do
  so may result in it being returned for additional
  information. According to Federal law, failure to provide
  information may result in a reduction in the award of any
  attorneys’ fees.
Student’s Name:        Date of Birth:______________
   Parent or Legal Guardian:
   Legal Residence:
        Street
   City or Town ___________Zip Code
   Telephone: ( ) ______________________
   Current School:
        Street
   City or Town _____________________ Zip Code

School district of attendance, if different from district of residence:
• Fully describe the nature of the problem
  including all specific facts relating to the
  disagreement (Attach additional pages or
  documents as necessary):

• State your proposed solution to the problem or
  the reason why you are unable to suggest a
  solution at this time. (Attach additional pages or
  documents as necessary):
• Upon receipt of this form, you will be contacted
  to establish a mutually agreeable time to
  participate in mediation with an outside mediator
  and representative(s) of the district to attempt to
  resolve this disagreement.

• If mediation is unsuccessful, an impartial
  hear-ing will be conducted unless you inform the
  district in writing that you do not wish to proceed
  with a hearing
• Participation in mediation will not delay or
  preclude your right to a due process hearing.

• If you do not wish to attempt to resolve this problem
  through mediation prior to a hearing, please check the
  box below:

 I do not wish to participate in mediation and request that
  the district schedule an impartial hearing at this time.

 (Please note: You may be requested to participate in a
  meeting to discuss the benefits of mediation.)
• Name of Person Completing this Form:
  Signature:
  ______________________________________
  _________ Date: ____________________
  Relationship to Student:
  Parent
  Legal Guardian
  Surrogate Parent
  Attorney
  Date of Receipt of Form:
  ______________________________
              TECHNIQUES

• Closure Caucus
  Recess
  Floating alternatives
  Technical assistance
  Reality testing
  Summation
  Closure
            Real listening means

concentrating on what the other person is saying with such
  intensity that your own speech-making processes are
  stilled...

  asking questions that show the depth of your
  understanding of what the other person is saying.

not only hearing what the other person says he or she
  wants, fears, feels and needs, but knowing what he or
  she isn’t asking for.

				
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