Special-education mediation is an alternative to litigation

Tuesday, January 12, 2010

STAFF WRITER

Disputes between parents of students with disabilities and school districts occur frequently. In the area of school law, special-education lawsuits are numerous. For both parties, the monetary and emotional costs of litigation are high and the benefit to students with disabilities dubious.

Unlike other civil litigation, the adversarial relationship between parents and school districts does not end with the court decision. Both parties remain cross, more so the losing party. The student must continue to attend school and bear the effects of a damaged parent-school relationship. This unfortunate situation is exacerbated by attorneys who pit parents against school districts to win a case. Attorneys are well aware of federal and state special-education law that encourages the use of alternative dispute resolution procedures. Instead, they rush to adversarial administrative hearings and the courts, which prolong resolution of the conflict. Obviously, it is in their financial interest not to mediate. Attorney fees are not awarded for time spent in mediation. It is not uncommon for an attorney to require a $5,000 retainer for legal services — fees that courts have held unreasonable — and not inform parents of their right to seek mediation.  Recent amendments to the federal special-education law (Individuals with Disabilities Education Act 2004) allow school districts to seek reimbursement of their legal costs when parent complaints are found to be frivolous, unreasonable and without foundation. Also, school districts can obtain rewards when parent suits cause unnecessary delay and needless increases in litigation costs. Under these provisions, costs are levied against the attorney, not the parent. Special-education law permits the parties to use alternatives to due process hearings and lawsuits to settle their disputes. Resolution sessions and mediation procedures are written in the statute. The law requires that school districts inform the aggrieved parents of their right to mediation. Mediation must be voluntary by both parties and cannot be used to deny a hearing. Mediation is conducted by a trained and impartial conciliator. Typically, the signed mediation agreement reflects a compromise by the parties that ensures that the best interests of the student are paramount. The mediation agreement is enforceable in a federal or state court.

Another provision goes further to resolve parent-school disputes when they first arise. Resolution sessions offer the parties the opportunity to resolve a dispute within 15 days after the parent request for a due process hearing. If resolved, a settlement agreement is produced and is enforceable in either a federal or state court. The Congressional intent of the 1975 passage of the Education of Handicapped Children Act (now IDEA) was to afford parents of students with disabilities a voice in deliberations about their child’s educational program. The due process protections were designed to foster a collaborative/cooperative relationship between parents and the school officials. An unintended consequence of the legalization of special education has been rampant litigation that has harmed the parent-school relationship. Since 1990, Congress has attempted to remedy this state of affairs by adding those alternative dispute resolution mechanisms discussed above.

The reader should not be left with the impression that legal representation for people with disabilities is not needed, only that it is needed in some cases and not others. Attorneys from Disability Rights New Jersey are to be lauded, for example, for their recent civil action in obtaining community-based housing for eligible people with mental disabilities now held in state institutions. Disputes in special education revolve around whether a student with a disability has an appropriate educational program and whether the school placement is least restrictive. Most of these disagreements are resolved by parents and school officials acting in good faith. Many more disputes could be defused and resolved by the use of alternative conflict resolution procedures to avoid costly hearings and litigation. The savings in terms of dollars and mental anguish are huge for both parents and schools — money and time that can be used to improve the student’s education and build trust between parents and school officials. The ethic of professional practice is not only to inform parents of their rights, but to counsel them about alternatives to filing a lawsuit.

Stanley J. Vitello, Ph.D., J.D., is a professor of special education at the Graduate School of Education, Rutgers University. A former Joseph P. Kennedy Jr. Public Policy Fellow, he assisted in the 1990 reauthorization of the Individuals with Disabilities Education Act. Dr. Vitello (svitello@aol.com) is founder of The Vitello Group, which provides special-education instructional and mediation services.

NJ.com

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