Should You Go To Mediation?
If you’ve ever negotiated with your child to eat just one more little celery stick before he can have his Jell-O, then you’ve already got the gist of what mediation is all about. After you file for due process, the first step is a resolution meeting. If you and the school district cannot come to an agreement in the resolution meeting, mediation is also a possibility.
The Role of Mediation in Due Process
Under the Individuals with Disabilities Education Act (IDEA), you must be offered the option of going to mediation. Participation is voluntary on both your behalf and the school district’s. The law also states that mediation must not be used for the purpose of delaying a due process hearing. It must also not be used for the purpose of delaying or denying any other rights afforded under the IDEA law. Mediation sessions must be scheduled as soon as possible in a location convenient to all the parties. The state bears the burden of the cost of mediation (which is typically far less expensive than the cost of a due process hearing).
Unlike the resolution meeting, a neutral, third-party mediator is required by federal law to participate. This third-party mediator must be randomly selected, must be knowledgeable about all applicable laws and regulations, and must not be an employee of any education agency involved in the matter. The mediator must also be trained in mediation techniques.
Should You Try Mediation?
Mediation is not mandatory, but it is an opportunity to explore possible solutions and perhaps even to resolve the matter without the burden of a more formal due process hearing. In many cases, it’s worth it to give mediation a try. Even if you do not come to a resolution, you can gain a better understanding of the school district’s position. This allows you to better prepare for the due process hearing.
On the other hand, if you and the school district are both firmly entrenched in your positions, you may not be likely to reach a compromise. You will also need to carefully consider whether any compromise that is offered is in the best interests of your child. If your child really needs at least three speech therapy sessions per week and the school district is only offering one, perhaps a due process hearing is the best course of action for your situation. Here are a few pros and cons to think about when considering whether to try mediation.
The biggest potential drawback to mediation is that you might need to be more flexible in your position in order to reach a compromise. You might need to agree to two speech therapy sessions instead of three to settle the issue, for example. If the issue at stake is urgent, then mediation may increase the length of time needed for a decision. While the IDEA law requires that mediation may not delay due process, there are some loopholes to the law. Time extensions may be granted. And lastly, there are some personal costs to consider. It takes time to prepare for mediation and to participate in the sessions. Mediation can be stressful. It may also be costly if you choose to hire an attorney.
Mediation is less formal than a due process hearing. Reaching a resolution in this manner may help you to repair or strengthen your relationship with the school district. More importantly, you have the option of choosing whether to accept a compromise. A due process hearing decision is (mostly) final. (You could appeal it.)
Even if you do not reach a compromise, there are a few benefits to attending mediation. Take plenty of notes on the school district’s arguments, because you’ll hear them again in due process. You’ll have more time to strengthen your responses to those arguments. (Just remember that the school district will be doing the same thing.) Furthermore, the mediator and/or the school district representatives will almost certainly point out any flaws in your arguments. Use this information to build a better case for the due process hearing.
The decision to go to mediation or not is a personal one. Consider these benefits and drawbacks as they apply to your family’s case. You might also consult a special education advocacy group or attorney when deciding whether or not to try mediation.