Resolving Special Education Disputes

1. Resolving Special Education Disputes Scott F. Johnson

2. About Me Professor of Law at Concord Law School Hearing Officer with NH Dept. of Education NHEdLaw, LLC www.nhedlaw.com Education Law Resource Center www.edlawrc.com

3. Overview • Talk about basic ways to resolve disputes under IDEA • Talk about some changes in IDEIA • Talk about some specific mediation approaches and ways to resolve disputes • Talk through a scenario • This PowerPoint is available at www.nhedlaw.com

4. 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.

5. 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

6. Mediation • Parties try to resolve differences with the help of a trained, neutral third party • Confidential • Provided at no cost to the parties • If agree, becomes binding, written agreement that is enforceable in court • Different methods can be used to help resolve disputes (discussed in detail in a minute)

7. IDEIA • Now requires states to offer mediation at the outset • Can request just mediation or mediation and due process • My state of NH has offered it for sometime and schedules it when a hearing is requested

8. 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. • Hearing officer makes a decision • Loser can appeal to state or federal court • Attorney’s fees

9. IDEIA • New law now requires the parties to have a “resolution meeting” before going to hearing when parent requests due process. • 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

10. 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

11. IDEIA • Law 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 – sufficiency hearings • Idea is to put parties on notice of the issues to be addressed at hearing

12. MediationGeneral 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

13. 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.

14. 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.

15. Problem Solving Approach 7 Elements • Relationship between the parties • Communication between the parties • Each party’s Best Alternative to a Negotiated Agreement (BATNA) • Interests of the parties • Creative options • Standards of Legitimacy • Commitment

16. 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

17. 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

18. 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.

19. Communication • All participants have to really listen. • Active listening • Acknowledge things you agree with • Clarify and confirm what speaker said • Empathize

20. 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.

21. Have to get to the underlying concerns. What the person “really wants.” Have to figure it out for all involved. Not always the specific solution on the table. That might just be the position. Interests For example, an out of district placement could be an interest in ensuring a child reads.

22. 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.

23. 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.

24. Commitment • Occurs at the end • Articulate precisely what each person is committing to. • Works well with settlement agreement process.

25. 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/SpecialEducationandDueProcessHearingsandAlternativeDisputeResolution.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