Which Form of Dispute Resolution Is Right for Me?
by Jacqueline Lembeck, Esq.
For Pennsylvania parents who disagree with a proposal from their child’s school district or charter school, choosing which form of dispute resolution to pursue can be a difficult task. There are key differences between due process and mediation and one form may be a better fit, depending on your circumstances. There are also options such as hearing officer settlement conferences or facilitated IEP meetings offered through Pennsylvania’s Office for Dispute Resolution which can help the parties reach an agreement.
Due Process: due process is an administrative hearing which is similar to a trial. There will be a hearing officer who decides the case, along with witnesses who present testimony, exhibits, and opening and closing arguments. Parents may represent themselves at a due process hearing (known as appearing “pro se“), but many find it much easier to navigate the legal process with an attorney who will be well-versed in case law, rules of evidence, objections and procedural requirements. Additionally, the school district or charter school will be represented by an attorney. Due process typically takes longer than mediation, but it is not voluntary, meaning that the district or charter school must attend.
Mediation: mediation is a voluntary form of dispute resolution, meaning that both parties must agree to it. Thus, a parent can request mediation, but a district or charter school can decline it. There are no lawyers on either side. Mediation can be faster than due process and less costly, but is sometimes unproductive if no agreement is finally reached, leaving parties to pursue due process.
Facilitated IEP: a facilitated IEP is an IEP meeting attended by a neutral third party who can help the parties overcome their differences. This process is voluntary as well and provided at no cost. The facilitator does not have the authority of a hearing officer to decide what will be in the child’s program, but can help coordinate discussions with an eye toward out-of-court resolution.
Hearing Officer Settlement Conference: a settlement conference is available in due process cases if it would be helpful to have a hearing officer (other than the hearing officer who will decide the case) aid the parties in working through their issues. This is available for active due process cases and is voluntary. The settlement hearing officer can help parties overcome sticking points which are preventing a resolution.
Because important rights and timelines are involved in any of the foregoing, it may be helpful to consult knowledgeable counsel to ensure that you are not waiving claims or missing required filing deadlines. The variety of resolution options can be extremely helpful tools to help parties overcome an impasse and move forward toward a better school year.