This article is a summary of the podcast, Deciding to File a Lawsuit from the podcast Special Education Matters, with host Michael Boll and CSNLG lead attorney Richard Isaacs. The podcast can be found here. This conversation focuses on what happens when a family may decide to file a due process complaint if they disagree with the districts offer of services.
What will happen after filing a due process complaint?
- A Resolution Session within 15 days must be scheduled
- Mediation may be scheduled
- Trial/hearing if no resolution reached
What leads to the due process complaint?
- After an IEP has been conducted there may be outstanding issues to resolve or services expected.
- The family and the district cannot come to agreement on what is considered a FAPE (Free Appropriate Public Education)
- Parents have paid for educational services and are requesting reimbursement.
- If there is no agreement, a due process complaint is filed.
How does the resolution process begin?
- Once the due process complaint is filed, a resolution session must be scheduled within 15 days by the school district.
- There is a 30 day resolution period before the trial can begin. There are exceptions to this rule.
What happens in the resolution session?
- In the resolution session, attorneys are encouraged not to attend.
- If a family brings their attorney, the district can also bring their attorney, however, if the parent does not bring an attorney, the district cannot bring their attorney.
- This provides an incentive for the district admin to discuss concerns and solutions with the parents and resolve the issues together.
Is this process helpful?
- The resolution process may be useful, and a resolution can potentially be reached.
- However, cases are rarely settled at the resolution session.
- Usually, the resolution session is not helpful. families t
What happens in the next step, mediation?
- Mediation is a voluntary process, but is heavily encouraged.
- Mediation has the benefit of having mediators; typically administrative law judges (ALJs).
- The benefit here is the mediator understands the law and has experience in helping the parties reach a settlement.
Problems with mediation:
- In the case of a poor mediator, where the ALJ may be inexperienced or otherwise unsuitable, a successful mediation may not occur.
- Another option is to skip mediation and sit down directly with the school district and the attorneys in a settlement conference. This is beneficial when the relationship between the family and district is strong.
- The bottom line is: mediation can be a waste of time without the right mediator.
- Currently, about 60% of mediation is a waste of time; it is ineffective, inefficient, and provides an unnecessary expense for families.
- Clients will be advised differently on how to approach mediation under different circumstances.
Benefits of mediation:
- Mediation, in the right conditions, can lead to resolutions with more creativity — resolutions that would otherwise not be granted at hearing.
What about trials or hearings?
- Around 94 percent of due process complaints do not go to hearing. They may be settled or dismissed.
- It is important to note that clients and the district may not necessarily be opposed in the sense that they are both working to help the student succeed, but may disagree on how to do so.
- Sometimes, when this decision goes to a judge who is unfamiliar with the student in question, the solution may be unsuitable.
- Thus, it is important try and settle each case, rather than go to hearing. Hearing is the last option.
This summary is part of our complete Beginner’s Guide to the Special Education Legal Process.