Defending one’s rights as a student or parent under the Individuals with Disabilities Education Act (IDEA) can be time consuming, financially costly, and emotionally draining, leaving one in a bitter dispute with the school district over their child’s right to a free appropriate public education. It can breed resentment and poor relations between both parties and, at worst, can negatively impact the ability of the child to get the appropriate educational program for their needs. Fortunately, voluntary procedural safeguards exist within the IDEA that help serve to mitigate these experiences and help parents come to an understanding with the school district about their child’s educational need that is not mired in acrimony, that allows meaningful dialogue as to what those educational needs are and to come to a solution in a manner that ensures good will among all parties. The most formal of these safeguards is the Formal Mediation.
Much like any other mediation, in special education law, a Formal Mediation is a mechanism by which disagreements between parents of a child and the school district over a child’s special education services can be resolved in a manner that allows for dialogue between both groups. With the help of an impartial mediator, the two sides do their best to negotiate a resolution that fits the needs of all of the involved parties. It is a completely voluntary procedure, but it is highly recommended for its non-adversarial nature. The rules governing formal mediations are found under §300.506 of the Code of Federal Regulations.
To start the process of a Formal Mediation in the state of Illinois, a parent(s) must request this mediation from the Illinois State Board of Education. They administer and supervise the mediation, especially in terms of choosing the impartial mediator, and are given 30 days to resolve the dispute in question. Under §300.506(b)(3), the State (in this case Illinois) is required to keep a list of mediators who are both qualified and knowledgeable in the laws and regulations pertaining to the provision of special education services. Furthermore, the ISBE (or in other states, any other State Educational Agency) must select this mediator on a random, rotational or any other impartial type of basis. The ISBE (or any other State Educational Agency across the country) must establish and implement the mediation procedures. §300.506(b(6) stipulates that if the parties come to an agreement, they must enforce it in the form of a legally binding agreement that states what the resolution is, ensures that all discussions occurring during the mediation are kept confidential and not used as evidence in due process hearings and civil lawsuits, and is signed by both parent(s) and a representative of the agency which has the authority to bind it to the agreement. Finally, §300.506(b)(7) holds that a written, signed mediation agreement is enforceable in any State court of competent jurisdiction, as well as in a federal district court. Mediations are ideally asked for when the dispute cannot be resolved in any less formal a manner (such as an informal meeting) and cannot be made until after the parents disagree with decisions made by the IEP team on the issue.
Formal Mediations have several advantages over Due Process Hearings that make it a useful and indeed preferred method for resolving disputes over a child’s special education services.
First, it is not an adversarial process where a parent presents one’s case and argues against the School District and its representatives. Both sides do not cross examine each other and challenge each other’s credibility and competence. Rather, the mediator helps to maintain and/or restore the relationship between parents and the school district in order to complete negotiations and continue effectively planning the child’s education together. Also, a mediator in a mediation process is allowed to rely on verbal statements of both parties as a primary source of information regarding a child’s program and what either side wants as opposed to the more formal process of evidence gathering required for a Due Process Hearing. Comments and offers made during a mediation session are also held to be absolutely confidential and are barred from use in any other forum, which is not available to Due Process communications in hearings, which are confidential but may be used in a court of law if the case is appealed. In a Mediation, the mediator can privately meet with both parties to discuss their positions and concerns whereas in a Due Process hearing, no ex parte or private discussions are permitted between either party and the hearing officer – there the record governs. The relative inexpensiveness of a Formal Mediation is another attractive quality over a Due Process hearing, as a Formal mediation requires around 2-3 hours spent by both parties and the mediator in identifying and working on the key issues. Compared to a Due Process Hearing where one must cover costs for representation, the time and cost of preparing a case and the amount of time spent at the hearing, this is a very judicious and economical use of resources. Even more attractive when one considers the fact that the state education agency (in this case, the Illinois State Board of Education) pays the mediator.
But what stands out most in a Formal Mediation is that it fundamentally is a conversation about what is best for a child. In a formal mediation, the mediator helps you with interpersonal, cognitive and facilitative strategies that help you effectively talk with the School district about your concerns. A Due Process Hearing is far more formal and requires one to simply present their case as if in court, with no conversation to smooth out nuances or subjective ideas that may be missed. With far less time and resources required and a less formal setting, parents are able to use a Formal Mediation to calmly talk about what may or may not be wrong with a child’s current IEP, what needs to change and what options there are to make adjustments. The positives of the working relationship between the parents and the school district come to the fore and are made use of so both can make a good faith effort to find a solution that benefits all, with minimal stress caused to the parents or child. Not every dispute may be resolved via Formal Mediation, but many are and it is recommended to try to this avenue to best resolve disputes so as to ensure an amicable relationship between parents and those in charge of facilitating a child’s education.
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 Preparing or Special Education Mediation and Resolution Sessions: A Guide for Families and Advocates, The Advocacy Institute 7 (Nov. 2009) https://law.duke.edu/childedlaw/speced_mediationresolution_sessions.pdf  Id. at 8.  Id. at 19.  Id.  Id.  Id.  Id.  Id.  Id.  Id. at 1.  Id.  Id.  Id. at 7 (Disagreements that are more amenable to mediation include: 1.) Need for additional or different special education services or related services; 2.) classroom or school placement; 3.) Compensatory services; 4.) Eligibility for special education services; 5.) Outcomes of manifestation determination reviews (whether potentially disciplined conduct was the result of a child’s disability or not). On the other hand, disagreements that are not as likely to be resolved via mediation would include 1.) Assignment of a student to a specific teacher or service provider; 2.) hiring or firing of school staff; 3.) assignment of a student to a specific school building if it does not involve a change of placement; and 4.) alternative assignment of case management.)