Mediation: What Parents Need to Know
By: Lauren M. O’Connell Mahler
McAndrews Law Offices, P.C.
Mediation is one of several different methods provided in the Individuals with Disabilities Education Act (“IDEA”) which parents and schools can utilize to resolve disagreements about special education matters. If your child’s school has offered to go to mediation with you to resolve a dispute over your child’s educational program, here’s what you need to know:
- The mediator does not make decisions. Unlike a hearing officer at a due process hearing, a mediator is not going to make a decision about the issues in your child’s case. The mediator is there to listen to both sides, help both sides understand each other, and try to facilitate an agreement. If the parties cannot agree, the mediator does not force a resolution. This allows you and your child’s school to keep control over the outcome, and try to negotiate a mutually agreeable resolution.
- The mediator must be qualified and impartial. The mediator must be someone who has no interest in the case and is not biased in favor of either side. The mediator also must be trained in effective mediation techniques and must be knowledgeable on the laws that govern special education.
- Mediation is voluntary. You do not have to agree to participate in mediation to work out a disagreement, and neither does your child’s school. Both parties must agree to participate in mediation for it to happen. The parties may also choose to end the mediation at any time.
- Mediation is confidential. Anything that is said by either you or your child’s school during the mediation process is private and confidential, and may not be used as evidence in any subsequent due process hearing or civil proceeding.
- The state bears the cost of mediation. Mediation is provided at no cost to parents.
- Who participates in mediation? Typically, just you, a representative from the school who has authority to make binding decisions on the school’s behalf, and the mediator will attend mediation. The parties may also opt to bring their attorneys or other representatives, such as an advocate, if your state’s rules allow.
- Mediation structure is flexible. Generally, mediation is far less formal than a due process hearing. It can occur just about anytime and anywhere, but must be at a time and location that is convenient for you as the parent. It is helpful to have separate rooms available so that you and the school can split up and speak with the mediator or your lawyers privately if necessary. There is no set format.
- Agreement: If you are able to reach an agreement with your school at mediation, the parties must sign a written agreement that sets forth that resolution. This agreement is legally binding and enforceable in court. Because of this, you should read the mediation agreement very carefully, and may wish to be represented by an attorney at mediation or consult with an attorney prior to going to mediation.
For more information, please visit www.mcandrewslaw.com or call (302) 380-4975. The information within this article is not, nor is it intended to be, legal advice. You should consult with an attorney for individual advice regarding your own situation.