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Last Updated: 10/31/2017
 

 Article of Interest - Due Process & Mediation

Understanding Due Process and Mediation

from Sonja Kerr
For more articles on disabilities and special ed visit www.bridges4kids.org

 

One Sunday afternoon I was walking in a park. On the left of the path was a beautiful lake with a view perfectly set for a gorgeous sunset that evening. On the right of the path was a mired tangle brush of woods, with weeds and certainly, poison ivy. I took the path to the right and after clearing the tangle, I discovered the other side of the same beautiful lake. As Robert Frost says:


"Two roads diverged in the woods, and I took the one less traveled by. And that has made all the difference"


Good Evening to all of you, my name is Sonja Kerr and I am going to explain to you why it is that sometimes the beautiful lake with the potential sunset is not the path to take.....


The IDEA encourages the use of mediation of special education disputes and allows for litigation of those same disputes if mediation is unsuccessful. Many times parents ask me if they should go to mediation or if they should "go straight to a hearing". With rare exception (such as when the child is without any services at all) my strong suggestion is to utilize mediation approaches to try and resolve the matter. There are three reasons for this:


1. Litigation is more stressful than mediation;


2. Litigation is more costly than mediation;


3. Litigation is more time-consuming than mediation


At the same time, it is completely inappropriate for school districts to utilize mediation as a means of discovery for litigation in order to gain an advantage through litigation. Discovery is the legal term for trading information about the case-- school records, evaluations, etc. For this reason, I encourage parents to be open and work with the school districts in mediation but to remember that if the situation is in mediation it might go to litigation.


The IDEA requires that parents have the opportunity to present complaints through an administrative hearing system about their child's receipt or lack thereof of a free and appropriate public education. The hearing system varies from state to state but generally the process is that a hearing officer is appointed by the state department of education. Hearing officers are not the same as judges in most states. They are paid usually by the school district or the state department of education. Hearing officers may be lawyers but they may also be educators.


Once the hearing is requested by the parent, the hearing decision must be rendered within 45 days unless continuances are granted for good cause. Good cause has to really be good cause not just convenience to the school district. Both sides have to disclose their witnesses and any documents they might use more than 5 days before the hearing.


The hearing is more like a trial you might see on television. Usually, although less formal there is a court reporter who takes down everything the witnesses, lawyers and hearing officers say. Parents get to decide whether the hearing is open to the public or private. There may be good reasons for going open or having the matter closed. Witnesses will testify, documents will be offered as evidence and the lawyers will make arguments. When the hearings end, the lawyers will send the hearing officer written documents called briefs. Though they are rarely short, briefs are written documents that summarize what each side thinks they have proved.


After the hearing officer receive the briefs, the hearing officer makes a decision. The decision must be in writing and decide what the child needs to receive in order to be provided a free appropriate public education. The hearing officer can also issue remedies such as reimbursement for evaluations the parents have paid for, or private schooling, or additional "make-up services" called compensatory education. Hearing officers cannot award monetary damages, fines against school districts, or attorneys' fees. In most states, hearing officers also do not have the authority over discrimination claims. If the hearing officer orders that the school district must provide certain services, the school district must comply or risk other legal action. If the parent prevails, the school district must pay for the parents' attorneys' fees.


Once the hearing officer rules, each side can appeal. In some states the appeal is directly to a court. In other states, the appeal is to a state level hearing officer. Once in court, there are various appeals and legal proceedings that can be brought. A few cases about special education matters have gone as far as the United States Supreme Court.


How long can all this take? A long time. Which is why, if you and the school district can work something out in mediation, it is to your child's benefit most of the time. The exception would be in situations where you like the program your child has and the school district is trying to change it. Then, the delay works to your advantage.


Looking at our picture of the lake and the thorny woods again, can you see why I say that mediation is the lake waiting for the sunset and litigation is like the thorny woods within the lake on the other side?
 

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