Understanding Due Process and Mediation
from Sonja Kerr
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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?