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.