mediation kathleen s whittier. mediation is... intervention between conflicting parties to promote...

MediationMediation

Kathleen S WhittierKathleen S Whittier

Mediation Is...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 WHAT IS SPECIAL EDUCATION MEDIATION ALL ABOUT?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

ADVANTAGESADVANTAGESDISADVANTAGESDISADVANTAGES

Mediation:• Relatively inexpensive

No power of • Informal enforcement• Non-directive• No specific format• Compromise• Lack of skilled mediator

• Follow-up

Due Process:• Specific guidelines• Expensive• Formal process• Lengthy process• Power of enforcement• Win/lose situation• Trained hearing officers• Little or no follow-up

A A mediator should be calledmediator should be called in when in when one or all of the following situations one or all of the following situations

exist: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 Prior to the meeting, the mediator should contact both parties to explain the following:contact both parties to explain the following:

– Who they (mediator) are

– The specifics of the meeting to be set up

– That the other party will be contacted

– The structure of the negotiation sessions (process)

– What information each party needs to prepare, if any

– Each party’s rights

There should be agreement There should be agreement beforebefore the meeting as to:the meeting as to:

• Date, time, place of meeting

• Purpose of meeting

• Primary issues to be dealt with (agenda)

Mediation must beMediation 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 New York State law requires that a Community Dispute Resolution Community Dispute Resolution

Center (CDRC)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.

LOGISTICSLOGISTICS

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 The mediator should reiterate the following: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 COOPERATION IN REACHING AN AGREEMENTAN 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 mediator helps the parent(s) and the school district rep resentative the school district rep resentative

resolve disagreements by: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 At the end of the mediation sessionsession

• 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 educa tion 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 NO COST TO PARENTS OR SCHOOL DISTRICTSCHOOL 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 MEDIATIONHOW 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 How is special education mediation different from an impartial bearing?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 How does the does the use use of mediation affect of mediation affect parents’ other due process rights?parents’ other due process rights?

• does not in any way affect the parent’s other rights to due process, such as the right to impartial hearing

• parent can request an impartial hearing at any time before, during, or after the mediation

• Requesting an impartial hearing prior to or in the absence of mediation does not consti tute that a person has failed to exhaust administrative remedies

• does not diminish or limit the rights of

• a parent, including the right to request an impartial hearing subsequent to mediation (section 4404-a of Education Law).

• a parent may request an impartial hearing after terminating mediation.

Is mediation voluntary?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 What happens if a parent chooses not to use the mediation process?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 Where will the student be placed during mediation?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 What are the qualifications of mediators?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 What are Community Dispute Resolution Centers?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?Who can attend mediation?

• parent(s) or guardian(s)

• a representa tive of the school district attend mediation

• Others may accompany either party, including an attorney,

• attorneys’ fees cannot be awarded for mediation

• Since media tion is intended to improve communication, the parties represent themselves in discussions regardless of who accompanies them.

• school district representative who attends the mediation should be adequately informed and authorized by the school district to 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?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 Is the written agreement reached in mediation binding upon the partiesmediation 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 What have school district representatives said about their mediation experiences?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 par ents’ anxiety and concerns with regard to the overall school/learning situation

HowHow can I get more information can I get more information regarding special education mediation?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 Additionally, information may be obtainedobtained

• 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 FORMSAMPLE REQUEST FORMDistrict Letterhead

Request for Due Process ProceedingsFederal 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:

StreetCity or Town ___________Zip Code

Telephone: ( ) ______________________Current School:

StreetCity 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:ParentLegal GuardianSurrogate ParentAttorneyDate of Receipt of Form: ______________________________

TECHNIQUESTECHNIQUES

• Closure CaucusRecessFloating alternatives Technical assistanceReality testingSummationClosure

Real listening meansReal 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.