Helping Parents and School Districts Become More Effective Partners
Special Education Mediation
Special Education Mediation in New York State
What is Special Education Mediation?
What are the Benefits of Mediation?
What Issues Can Be Mediated?
What Issues Cannot Be Addressed in the Special Education Mediation Process?
What is an Impartial Hearing and How Does it Differ From Mediation?
Can Mediation Be Requested in Addition to An Impartial Hearing?
What is a Resolution Session and How Does the Process Differ From Mediation?
How Can Mediation Be Requested?
Is there Another Alternative if the School Wants Mediation But the Parents Are Hesitant?
Who Pays Mediation Costs?
The Mediation Process: How Can Mediation Be Requested?
The Mediation Process: What Happens After the Request is Made?
Where are the Mediation Centers and Who are the Mediators?
Who Attends the Mediation Session?
Can Other People Attend the Mediation Session and What Are Their Roles?
What Happens at Mediation?
How Does One Prepare for Mediation?
What Happens After Mediation?
What Happens if an Agreement is Reached, but One or Both Parties are Not Abiding by the Agreement?
Resources:
Laws
Links
Page Feedback/Questions
What is Special Education Mediation?
Special education mediation is a process in which parents of children with disabilities and school districts meet with a neutral person, a mediator, to work out differences in a collaborative way. Disputes may arise relating to the identification, evaluation, educational placement or the provision of a free appropriate public education to a student with a disability or a student suspected of having a disability. The mediator helps the participants listen to each other’s views, and then assists in developing mutually satisfactory solutions. Both parties are involved in finding a workable solution. Using conflict resolution skills, mediators provide parents and school districts a confidential forum to:
· Talk openly about differences
· Understand each other’s concerns
· Clarify issues
· Find common ground
· Improve communication/rebuild trust
· Explore creative solutions
· Write legally binding agreements
Mediation expenses are paid by the New York State Education Department (NYSED), with the exception of attorney fees (which are paid by the respective parties) and fees for interpreters (which are paid for by the school district). Conversations in mediation are confidential. An agreement reached in mediation is binding and enforceable in court.
Mediation can be requested at the same time as an impartial hearing, or can be requested independently. Mediation cannot be used to deny or delay a party’s right to a due process hearing, or to deny any other rights under Part B of the Individuals with Disabilities Education Improvement Act (IDEIA). The mediation process can address many issues involving a student’s educational program. If an impartial hearing is requested at the same time as mediation, the mediation process will proceed first to try and resolve the issues in a collaborative way, but will not delay the impartial hearing timeframes. The impartial hearing can be cancelled if an agreement is reached at mediation, or the parties can proceed with the hearing if an agreement is not reached. Participation in mediation does not preclude any right to an impartial hearing in the future.
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What are the Benefits of Mediation?
Mediation allows the parties to come together in a neutral way to discuss areas of disagreement. An independent third person (the mediator) uses his/her training to apply techniques to:
· assist the parties in explaining themselves and their concerns in an open way,
· enable people to hear and understand each other’s concerns,
· help parties talk about finding solutions to their problems,
· explore options for addressing the areas in conflict, and
· improve communication and establish trust as the relationship between the
parent/student and school district continues.
Mediation is a confidential voluntary process where the focus is on collaboration and communication, with emphasis on the student’s needs. Both mediations and impartial hearings may relate to the identification, evaluation or educational placement of the student. In an impartial hearing, an impartial hearing officer listens to both parties and makes a determination based upon law and regulations. Mediation allows the parties to discuss the issues and work together to develop a mutually agreeable solution. With mediation, the parties have a direct role in developing any agreement.
Mediation is a highly effective process to resolve issues relating to special education. In 2008-09, of those cases that proceeded to the mediation session, 96% resulted in agreement between parents and school districts.
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What Issues Can Be Mediated?
The mediation process can address many issues related to the provision of a free appropriate public education for a child with a disability. Issues in dispute that can be brought to mediation include, but are not limited to:
· Identification/Classification
· Evaluation
· Recommendation for special education services
· Educational placement
· Disciplinary actions for students with disabilities
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What Issues Cannot Be Addressed in the Special Education Mediation Process?
Most issues can be addressed in the mediation process. The only issues which cannot be mediated are:
· Decisions made at the Subcommittee on Special Education level resulting in
disagreement: These must first be referred in writing to the full Committee on Special
Education (CSE) for attempted resolution;
· Awarding of attorney’s fees, even in conjunction with other points of agreement; and
· Placement in non-approved (by NYSED) private schools.
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What is an Impartial Hearing and How Does it Differ From Mediation?
Special education mediation and impartial hearings are both processes to resolve disputes relating to the identification, evaluation and/or educational placement of the student. An impartial hearing is a more formal process in which a hearing officer presides and provides all parties the opportunity to present witnesses and testimony. The hearing officer provides written findings of fact and decision based upon the evidence submitted by the parties. The decision is binding unless an appeal is requested to the Office of State Review. More information on impartial hearings can be found on VESID’s website. Mediation allows the parties to discuss the issues and work together to develop a mutually agreeable solution with a neutral party facilitating the discussion. The mediator, unlike the impartial hearing officer, does not issue a decision but rather assists the parties to reach a mutually agreeable resolution to the problem and to document that agreement in writing.
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Can Mediation Be Requested in Addition to an Impartial Hearing?
Yes. However, the request for mediation cannot be used to deny or delay a parent’s right to an impartial hearing. That means that if a mediation agreement is not reached prior to the required initiation date of the impartial hearing or the parties inform the impartial hearing office that they agree in writing to continue mediation, the impartial hearing process must proceed. The mediation process is designed to be completed quickly, whether mediation is requested solely or at the same time as an impartial hearing. The mediation process usually takes place approximately three weeks from the time the request is received by the mediation center. If more time is needed for mediation due to scheduling, or the desire by the parties for additional mediation sessions, a request can be made to the hearing officer to reschedule the impartial hearing. Requests are typically granted by the hearing officer to allow the parties time to potentially come to agreement before the hearing is held.
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What is a Resolution Session and How Does the Process Differ From Mediation?
A resolution session is a meeting for the parents to discuss the due process complaint and supporting facts so that the school district has the opportunity to resolve the dispute. A resolution meeting gives the parents and the school district a chance to work together to avoid a due process hearing.
If an impartial hearing is requested, a resolution session will be scheduled within 15 days of the school’s receipt of that impartial hearing request. This meeting is coordinated by the school district, not a local Community Dispute Resolution Center (CDRC). The resolution meeting is mandatory unless waived by both parties in dispute to instead go to mediation, or proceed straight to the impartial hearing.
In both a resolution session and mediation, parents and the school district discuss the issues and have the opportunity to resolve the complaint. In a resolution session, the district may, but is not required to, have an individual attend to facilitate the discussion between the parent and the district. If there is a facilitator at a resolution session, he or she can explain his or her experience and skills, any position he or she has in the school district, and the exact nature of his or her role in the resolution session. In mediation, there will always be a trained neutral mediator present who is selected by the CDRC and who is experienced in conflict resolution and meeting facilitation. The mediator does not have a partiality to any party involved in the conflict; their role is to facilitate the discussion in order to assist the parties in negotiation. Although an agreement is ideal, the mediator does not influence either party in their decision-making process. Mediators assist the parties to develop and understand issues and options and negotiate in good faith.
In mediation, conversations are confidential and cannot be used in any other proceeding as per federal and State special education regulations and in New York State (NYS) Judiciary Law Article 21-A.
Both resolution session agreements and mediation agreements are binding and enforceable in court.
Taking part in the mediation or impartial hearing options does not preclude either party from utilizing court proceedings in the future. Additional information on the due process system can be found in the New York State Procedural Safeguards Notice.
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How Can Mediation Be Requested?
NYSED has developed an optional form which can be completed by a parent and sent to the Committee on Preschool Special Education (CPSE), CSE or to the school district Board of Education (BOE). The school district will immediately forward the request to the local CDRC. School districts may also request mediation by informing the parent(s) that the school district is requesting mediation, providing the parents with all procedural safeguards, and requesting mediation through the CDRC. Mediation is voluntary for all parties.
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Is there Another Alternative if the School Would Like to Pursue Mediation but the Parents are Hesitant?
Mediation is voluntary on both sides, as each party must be willing to attend the mediation session freely, to encourage discussion and collaboration. If a parent does not want to take part in the mediation process, he/she may be asked to take part in an informational session by the local CDRC to discuss mediation and the benefits of the process.
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Who Pays Mediation Costs?
Mediation is at no cost to the parent and the school district. All costs for the mediation process are paid by NYSED except for attorney fees (which are paid by the respective parties) and fees for interpreters (which are paid for by the school district). These costs include all administrative costs for the CDRC and to NYSDRA, the statewide administrator.
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The Mediation Process: What Happens After a Request is Made?
After the request is made in writing, it is immediately forwarded to the local CDRC. A CDRC staff member then contacts the parties to obtain additional information, answers any mediation-related questions, and arranges the scheduling of the mediation session at a mutually convenient location and time. CDRCs have at least one location in every county of the State where mediation sessions are held. Special Education mediations are typically conducted during the day, and usually take place within two weeks of the request being received by the CDRC.
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Where are the Mediation Centers and Who are the Mediators?
NYS law requires that special education mediations be conducted by a CDRC, serving each of the 62 counties in the State. Beginning in 1988, selected CDRCs expanded their services to include issues related to special education. As of a July 1, 1995 mandate, all CDRCs have provided special education mediation. These CDRCs are overseen by the NYS Unified Court System Office of Alternative Dispute Resolution (ADR) and Court Improvement. These centers are non-profit, independent agencies that have over 10 years experience in mediating special education. To determine the closest CDRC, click here.
Each CDRC has a roster of highly qualified mediators who are not employed by the school district or by NYSED. The mediators are volunteers who have various occupations, and all have the special training and skills needed to facilitate the mediation process. Mediators for this program must first attend an approved basic training program, which is a minimum of 25 hours, followed by an observation/apprenticeship program. They must then mediate community mediation cases for at least one year. With approval of the CDRC, a mediator may then be eligible to take an additional two-day training on special education laws and regulations, and other issues specific to this program. After another observation/apprenticeship period, they are then permitted to mediate special education cases. Periodically, as laws and regulations change, they are required to attend informational update trainings, in order to maintain their active status as special education mediators.
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Who Attends the Mediation Session?
Both the parents and the school district will determine who should attend the session in order to have a constructive conversation and make all relevant decisions. The mediator will lead the mediation session and may discuss ground rules for participation. The main focus of the mediation process is to increase communication between the parties and find a workable solution, and to develop better ways to communicate in the future.
The representative for the school district must be authorized to make decisions in regard to any changes in the program or services for the student, and must be able to sign an agreement on behalf of the school district. The district representative participating in the meeting may, during the course of the mediation session, need to contact others at the school district for information or approval.
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Can Other People Attend the Mediation Session and What Are Their Roles?
The mediation process is designed to be collaborative and user-friendly, and able to be conducted without the need for attorneys. Each party should enter the mediation process, however, capable of understanding and representing his or her rights and interests and there may be instances when a friend, family member, advocate or attorney is invited to provide advice and/or support. These invited individuals are, however, not the primary speakers at the mediation session and they are not the final decision makers. The mediator will conduct the session with this in mind.
Service providers may also be invited to all or a portion of a mediation session, if the issues in dispute relate to the type and amount of that specific service. If there are many people attending the mediation session, some may be in the session only during the time specific issues relating to them are being discussed. At times, it may be appropriate for the student to attend the mediation session, particularly concerning transition services plans. This should be considered on a case by case basis, depending on the student’s ability to understand and participate.
The CDRC will ask each party who they feel is necessary to be part of the session, and will then inform each party who those people are. CDRC staff may explore with participants the roles that everyone will play. The mediator may feel it necessary to define this further at the start of the session, and decide with the parties how the accompanying people can best serve the conversation. For example, a parent may decide to bring a friend or family member who can assist with understanding the process, if needed.
If an interpreter is needed, a parent may decide to bring a friend or family member. The CDRC may have one on staff, or may be able to arrange one from the court system. An outside interpreter may be brought in at the district’s expense.
Federal law and regulations prohibit a court from awarding attorneys’ fees for a mediation session.
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What Happens at Mediation?
The mediation process starts with the neutral mediator explaining this confidential process. Each party then has an opportunity to speak and to share their view of the situation. A conversation is held, focusing on the student, what is working and what is not working with his/her educational program. People attending should be prepared to discuss what has brought them to mediation and how they see the needs and interests involved in the conflict. This is an opportunity to lay out concerns, not to “make a case”. Mediation is not about proving anything; it is about resolving differences and finding a workable solution.
The mediator will help participants problem-solve. Problem-solving in mediation involves all parties looking at possible ways to resolve the issues at hand. The mediation process encourages creativity and flexibility. The mediator will help the participants to arrive at an appropriate solution for all.
If and when an acceptable solution is found, the mediator will help the parties create an agreement for everyone to review and sign. Everyone who signs will receive a copy of the agreement. Following the agreement, the CSE will meet to incorporate any relevant elements of the agreement into the student’s individualized education program (IEP). In some cases, changes may be made to the IEP without a CSE meeting (if the annual review meeting has occurred and parents and district agree in writing to make the changes without a CSE meeting). If the mediation session results in a binding agreement that requires an amendment to the student’s IEP, the CSE recommendation must include the changes to the student’s IEP as agreed on in mediation.
If an agreement is not reached, and all agree that additional sessions will not resolve the dispute, the mediation case is closed. The option of an impartial hearing remains. The mediation session may have narrowed the issues that need to be resolved at the hearing.
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How Does One Prepare for Mediation?
The CDRC staff will talk to the people involved about the mediation process and assist in preparation. Disputants should make sure to inform the CDRC of those expected to attend the mediation session.
Mediation will only be as successful as those involved make it. The participants’ responsibilities are to:
· Decide what the issues are in the conflict.
· have an authorized decision-maker for the school in attendance or have access to the
decision-maker via phone.
· be willing to listen to the other person’s point of view.
· be willing to discuss all issues.
· think about possible solutions. Think about ideas for resolution in which both parties walk
away satisfied. In mediation, parties do not win or lose, but rather work to reach a mutually
agreeable solution.
· work with the other participants to determine which solutions are most appropriate.
Remember, the parties (parent and district representative) create the agreement; the mediator facilitates the discussion process. People should come to the mediation session ready to work toward a resolution of the problems involved in the dispute.
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What Happens After Mediation?
Following mediation, any agreement reached is documented in writing, and signed by both parties and subsequently implemented. If an impartial hearing was scheduled, but all issues are resolved to the parties’ satisfaction, then the party that requested the impartial hearing should submit a written withdrawal of their due process request for an impartial hearing.
If an agreement is reached on some, but not all, of the issues in dispute, those issues which were agreed to are written in an agreement and all parties sign it. Any unresolved issues may be taken to an impartial hearing.
Please note that if mediation does not result in an agreement and an impartial hearing is initiated, mediation discussions or materials may not be submitted at the hearing. Only written agreements may be presented as evidence. No summary of actual discussions or offers of settlement will be permitted, as they are covered under confidentiality guidelines.
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What Happens if an Agreement is Reached, but One or Both Parties are Not Abiding by the Agreement?
A mediation agreement is a binding agreement and is enforceable by court. You may wish to consult an attorney for more information. If the agreement resulted in a change to the student’s IEP, the parent could, however, submit a written State complaint that the IEP is not being implemented.
If the special education mediation process does not result in resolution of the issue, the parent (or school district) may still use the impartial hearing process to resolve the dispute. Because discussions that occur during the mediation must remain confidential, they may not be used as evidence in any subsequent due process hearing or civil proceeding. Information could, however, be shared that a mediation session was held. In addition, the written agreement, if any, that was reached through the mediation process and signed by both parties could also be shared.
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Resources:
Laws:
IDEA 2007: Federal law regulating special education, Individuals with Disabilities Education Act
Regulations of the Commissioner of Education Parts 200 and 201: NYS Regulations relating to special education
Links:
General Information:
New York State Education Department: The Department's website lists various resources, publications and contacts.
New York City Department of Education: The Department's website lists various resources, publications and contacts.
The Office of Special Education Programs (OSEP)
Parent Information and Support
New York State-funded Parent Centers, including New York City Centers
Technical Assistance Alliance for Parent Centers: The Technical Assistance ALLIANCE for Parent Centers (the ALLIANCE) is an innovative partnership of one national and six regional parent technical assistance centers, each funded by the U.S. Department of Education’s Office of Special Education Programs (OSEP). These seven projects comprise a unified technical assistance system for the purpose of developing, assisting, and coordinating the over 100 Parent Training and Information Centers (PTIs) and Community Parent Resource Centers (CPRCs) under the Individuals with Disabilities Education Act. The national and regional parent technical assistance centers work to strengthen the connections to the larger OSEP Technical Assistance and Dissemination Network and fortify partnerships between Parent Centers and education systems at local, state, and national levels.
NYSED Regional Special Education Technical Assistance Support Centers
NYSED Help for Parents
NYS Procedural Safeguards Notice
Parents Guide to Special Education
NYSED Quality Assurance Regional Offices
Mediation Information:
Sample Form to Request Mediation
Brochure: Resolving Concerns About Your Child’s Special Education Services
Mediation Guidebook
Finding a Mediation Center
Consortium for Appropriate Dispute Resolution in Special Education (CADRE): CADRE, The National Center on Dispute Resolution, is funded by the United States Department of Education, Office of Special Education Programs. CADRE uses advanced technology as well as traditional means to provide technical assistance to state departments of education on implementation of the mediation requirements under IDEA '97. CADRE also supports parents, educators and administrators to benefit from the full continuum of dispute resolution options that can prevent and resolve conflict and ultimately lead to informed partnerships that focus on results for children and youth.
NYS Unified Court System Office of Alternative Dispute Resolution (ADR) Programs
Impartial Hearing Information:
Sample Due Process Complaint Notice
Impartial Hearing Process for Students with Disabilities Guide
University at Buffalo Law School: Contract with VESID for training Impartial Hearing Officers
Other Resources:
Special Education Mediation Program Brochure (PDF)
A Tale of Two Conversations
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Feedback or Questions:
The New York State Dispute Resolution Association, Inc. (NYSDRA) welcomes comments, suggestions for improvement or specific special education mediation questions. We can be reached in several ways:
By Email: specialed@nysdra.org
By Standard Mail: NYSDRA, 255 River Street, 4th floor, Troy, NY, 12180
By Phone: 518-687-2240 x202