Harvard Law School Recommendation Request Form

							 Resolving Special
Education Disputes
     Scott F. Johnson, Esq.

        NHEdLaw, LLC
       www.nhedlaw.com

 Education Law Resource Center
       www.edlawrc.com
             Overview
Talk about basic ways to resolve disputes
under IDEA and state law
Talk about some changes in IDEIA
Talk about some specific mediation
approaches and ways to resolve disputes
Role play a mediation
This PowerPoint is available at
www.nhedlaw.com
                IDEIA
Will cover three ways to resolve disputes:
neutral evaluation, mediation, due
process/court.
Some changes to dispute resolution in
IDEIA
Mostly in the area relating to due process
hearings in terms of process and notice.
        Neutral evaluation
Opinion from hearing officer about strengths and
weaknesses
Present limited evidence in writing and make
arguments.
Hearing officer makes recommendation on how
they would rule. Parties can accept or reject.
Not bound if reject
Process is confidential
Ed 1128.02 and RSA 186-C:23-b
              Mediation
Parties try to resolve differences with the
help of a neutral third party
Confidential
If agree, becomes binding, written
agreement that is enforceable in court
Different methods discussed in detail in a
minute
Ed 1128.02 and RSA 186-C:23, 24
               IDEIA
Now requires states to offer mediation at
the outset
NH has done that for sometime and
schedules it when a hearing is requested
Form to request it online
           Due process
Adversarial proceeding
Witnesses, attorneys, hearing officer
Parties have certain rights defined by
statute in terms of presenting evidence,
cross-examining witnesses, establishing a
record and appealing. Ed 1128.18, 20
U.S.C. s 1415(f)
Hearing officer makes a decision
Loser can appeal to state or federal court
                  IDEIA
New law now requires the parties to have a
“resolution meeting” before going to hearing.
Must happen in 15 days of request for hearing
Like an IEP meeting, but a person with decision-
making authority to resolve the dispute must
attend
Discuss the request for due process and school
is give chance to resolve the issues
                   IDEIA
If agree, written settlement agreement
Buyers remorse for 3 days – both sides
Have 30 days from request for hearing to
resolve
If can’t agree go to hearing or mediation/neutral
evaluation
School attorneys cannot attend unless parent
attorney attends
Parties can waive the meeting requirement by
agreement or substitute mediation for it
               IDEIA
Law also requires parties to be more
specific in their requests for due process
Can’t raise things that were not in the
request
Other party can ask for more information if
request not sufficient
Idea is to put parties on notice of the
issues to be addressed at hearing
                Mediation
            General Approaches
Positional negotiation
  Develop a position and
  insist the other person
  agree to it.
  Start at an extreme and
  work towards the middle
  Start near actual position
  and hold until the other
  person comes close
  enough to it
      Positional negotiation
Involves strength and
weaknesses of the
case.
Each side attacks the
other’s position and
case.
Threaten action if
other person does not
come to your position.
       General Approaches
Problem Solving
approach.
View things as a shared
problem to be resolved by
both sides.
More work.
Can produce a better,
longer lasting outcome.
Worked in Camp David
Peace Accords for peace
between Egypt and
Israel.
  Problem Solving Approach
7 Elements
1. Relationship between the parties
2. Communication between the parties
3. Each party’s Best Alternative to a Negotiated
   Agreement (BATNA)
4. Interests of the parties
5. Creative options
6. Standards of Legitimacy
7. Commitment
             Relationships
Perhaps the most
important part
Working on it has its
own intrinsic value
and corollary benefits
Treat others with
respect
Work on the
relationship
Common relationship builders
Bring food and drinks to meetings
Be courteous
Don’t retaliate
Don’t personalize
Don’t blame
Don’t yell
Express feelings but calmly
         Scott’s Crazy Ideas
Try to get to know the
person.
Meet outside of school
and do something
unrelated to special
education.
Invite the other person to
do something with a
project, school committee
or outside of school group
or committee.
Communication
        All participants have
        to really listen.
        Active listening
        Acknowledge things
        you agree with
        Clarify and confirm
        what speaker said
        Empathize
              BATNA
Best Alternative to a Negotiated
Agreement.
What you could obtain without an
agreement from the other person.
Figure out the BATNA of others that are
involved.
Both sides want to work to an agreement
that is better then their BATNA.
                    Interests
 Have to get to the             Not always the
 underlying concerns.           specific solution on
 What the person                the table.
 “really wants.”                That might just be the
 Have to figure it out          position.
 for all involved.

For example, an out of district
placement could be an interest in
ensuring a child reads.
          Creative Solutions
Not always obvious at first
Brainstorm
   Don’t evaluate
   Don’t attach to a suggestion to early
Talk through possible solutions with pros
and cons
Look for the solution that is a mutual gain
for all involved.
              Legitimacy
Interests and options must be legitimate.
Something the system and process can provide
Bounds of legitimacy depend on the situation.
With special education some of those bounds
are legal ones.
Others are fairness, reasonableness and the
interests of the parties within their legal and
ethical boundaries.
            Commitment
Occurs at the end
Articulate precisely
what each person is
committing to.
Works well with
settlement agreement
process.
                  Resources
NH Special Education Law Manual: A Guide for Parents,
Educators & Professionals, NHEdLaw, www.nhedlaw.com
Harvard Law School Project on Negotiation www.pon.harvard.edu
National Center on Dispute Resolution.
www.directionservice.org/cadre/indexdispres.cfm
The Problem Solving Lawyer,
www.harborhouselaw.com/articles/problemsolve.mpalmer.htm
New Hampshire Dept. of Education Dispute Resolution.
www.ed.state.nh.us/education/laws/SpecialEducationandDueProces
sHearingsandAlternativeDisputeResolution.htm
Office of Special Education Programs Questions and Answers on
Special Education Mediation.
www.directionservice.org/cadre/vet_QAonmediation.cfm
NHEdLaw, Other Helpful Resources page.
www.nhedlaw.com/helpful.htm