By James F. Gallagher, Esq., and S. Paul Prior, Esq.
Disagreements and disputes in special education are inevitable. In fact, mechanisms to resolve disagreements and disputes are part of state and federal special education law. Most of the time these disputes and disagreements are resolved long before mediation and due process proceedings are considered. However, sometimes parents and districts cannot come to an agreement on their own. As a result, parents must turn to the “procedural safeguards” outlined in the Individuals with Disabilities Education Act (IDEA). Special education disagreements are typically resolved through one of two processes: mediation or a Due Process Proceeding.
Mediation can be requested either before, or as part of, the filing of a Due Process petition. Mediation is a voluntary process where you sit down with your school district in the presence of a third-party mediator. This mediator helps both parties discuss their issues to hopefully come to a resolution. It is important for parents to prepare for the mediation conference, particularly if they are not represented by an attorney experienced in special education matters.
Some things parents should keep in mind as they prepare are:
- Request and review your child’s complete educational record from the school district.
- See if your child is progressing toward his or her goals and objectives each year. Are your child’s goals and objectives repeated from year to year without change? Were your child’s goals and objectives changed or removed without accomplishing them?
- Review any communications you made with your child’s teacher or school district that raised any concerns about your child’s progress.
- Have a basic offer and concession strategy. Remember mediation is about compromise. Do not expect to simply get everything you want. The mediator does not take sides and will not tell one side they are right or wrong. Pick the one or two issues that are most critical to you and be prepared to concede others which are less important.
- Do not share all the details of your argument at mediation. Keep in mind, if you cannot resolve your dispute at mediation, you will then need to go through a Due Process trial-type hearing. Do not show all the cards in your hand at mediation.
- Most importantly, stay calm. You want the district and the mediator to see you as levelheaded, focused, and reasonable. The district will be represented by an attorney at Mediation. Sometimes that attorney will intentionally try to make you upset to throw you off your game. Resist the urge to respond to these efforts. If you feel yourself getting upset, ask for a 20-minute break.
- If you cannot resolve your disagreements through mediation, immediately transmit the matter to the Office of Administrative Law for a hearing.
Due Process is the most powerful weapon in a parent’s arsenal when disputes arise between parents and school districts. It offers a trial-type hearing. Although there is no jury and the rules of evidence are more relaxed, this is a process which requires a fair amount of technical expertise and parents are often outmatched if they do not have legal representation (the district WILL have a lawyer). Ultimately, a Judge will decide which side should prevail on each issue.
Some ways to prepare yourself for a Due Process hearing are:
- Review all the items previously mentioned to help you prepare for mediation.
- Become familiar with the rules about exchanging evidence and documentation before a hearing. There are usually tightly controlled timelines for when you must exchange information which either side may use at a hearing.
- Prepare a list of the potential witnesses you may have testify at a hearing. This must be exchanged in advance of the first day of the hearing.
- Hire an expert. The strength of any case is based upon the expert witnesses hired by the parents. An expert will want to see the program(s) under consideration as well as conduct an evaluation on your child. Advance planning is the key to success here.
Following these tips certainly increases the likelihood of your success. In complex cases where there is a lot at stake, having an attorney with experience in special education cases to navigate these issues for you can take a lot off your mind and even further increase the chances of a successful outcome for your child. When the parent prevails, legal fees can be recouped and paid by the district.
James F. Gallagher, Esq., and S. Paul Prior, Esq. are attorneys at Hinkle Prior & Fischer, Attorneys at Law. The practice is dedicated to representing people with disabilities and their families. Learn more at www.hinkle1.com.
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