By Attorney Judith C. Saltzman
The Ohio Department of Education provides mediation and IEP facilitation services to parents and school districts that wish to resolve disputes through discussion and negotiation. In both processes, a trained, impartial third party, the mediator, helps the parties communicate with each other about their concerns in an effort to reach a solution. Extensive information about these dispute resolution processes, including the qualifications of all Ohio mediators, can be found on ODE’s website.
ODE’s Mediation/Facilitation Coordinator, Chrissy Cline, reports that she tries to make requesting mediation and/or facilitation, as easy as possible for everyone concerned. If parents are reluctant to contact their school district to suggest mediation, she will assist by contacting the school district on behalf of a parent who feels reluctant to do so on her own. Ms. Cline’s contact information is:
Office for Exceptional Children
Ohio Department of Education
(614)728-1113 – (877)644-6338
Two separate resolution processes are available to parents:
I. Mediation: Mediation is a voluntary process for resolving disputes between school districts and parents. It may be sought without filing due process, and is often used after due process is filed to settle the case. Either way, both parties must agree to mediate their concerns before the process may begin. The school district and parent must agree on a mediator, who will convene the parties, usually at the school district, and help them achieve a mutually acceptable solution. Mediators are selected and paid by ODE, and they are required to be people who are knowledgeable in laws and regulations relating to special education.
Mediation can address the same issues as due process, but the format of mediation is less adversarial than a due process hearing. Typically, the parties and the mediator will start by meeting together to sign necessary consents and identify the parties’ concerns – but fairly quickly the mediator will separate the parties into separate rooms and shuttle back and forth with proposals and counter-proposals that will hopefully lead to resolution. Unlike due process where there is a hearing officer who makes a decision, the mediator will make no decision about the merits of the dispute. Instead she will strive to bring the parties to agreement.
If mediation is successful, and the complaint is resolved, the parties must sign a binding agreement that sets forth the resolution. The mediator will help the parties draft the agreement, but she does not represent either party and will not provide legal advice to either side as to whether the agreement is fair or unfair and whether it should be accepted. All discussions during the mediation are confidential and can’t be used as evidence in a subsequent special education proceeding.
Parents sometimes choose mediation in hopes of avoiding the legal fees associated with due process. Parents who wish to mediate without legal representation should be cautioned that the school district will likely be represented by an attorney, even if the parents are not. The binding agreement that results from the mediation is a legal document in which the school district may attempt to extract waivers or releases from parents in exchange for providing requested services. Hence, even if parents do not wish to have legal representation at the mediation, they are well advised to have the agreement reviewed by a special education attorney before signing.
II. Facilitated IEP Meetings: Ohio mediators are also available to facilitate IEP meetings. Where this occurs, the mediator will attend and likely chair the IEP meeting, attempting to calmly lead discussion of difficult issues and bring the parties to agreement.
Different mediators have different facilitation styles, but generally their goal is to assist the team members in a thoughtful, productive creation of a quality IEP. The facilitator does not make decisions regarding what should be in the IEP, and a facilitated IEP meeting, like normal IEP meetings, is not a confidential proceeding. The document that results from a successful facilitated IEP meeting is an IEP, not a mediation agreement.
Should a parent have legal representation at a facilitated IEP team meeting? This is a matter of parental choice. Unlike a mediation agreement, an IEP can be discussed and modified at a later IEP team meeting, and binding waivers and releases are not part of the IEP process.
Parents who question – but who are willing to try — the IEP that results from a facilitated meeting should carefully document their concerns on the IEP, or in a separate letter. In the event of a requested IEP change following facilitation, such notification will provide a clear record of the conditions under which the facilitated IEP was accepted.