This article is a summary of show #6, Understanding the Mediation Process, from the podcast Special Education Matters, with host Michael Boll and CSNLG lead attorney Richard Isaacs. This podcast can be found here. This conversation focuses on mediation: what it is, what happens with it, what it feels like, and how a parent should respond when it is time to do the mediation.
What is mediation?
- Mediation is an opportunity for the district administrator (in many cases the special-education director) to sit down with a family and negotiate in the presence of a mediator.
- Typically, the mediator is an administrative law judge (ALJ).
- Mediation usually takes place at the school district office.
When does it happen?
- The parties involved will mutually agree upon a mediation date.
- Mediation typically occurs shortly before hearing (30-60 days); it is often the last official opportunity to sit down with the school district prior to going to trial.
What is mediation like?
- Mediation is low pressure. It happens at the school district office for the most part.
- Usually mediation starts at 9:30 AM.
- In the first half hour, the mediator explains the process and its benefits.
- Sometimes the parties will meet together first to review where things are with the settlement, then they will be separated into different rooms.
- The mediator will then go back and forth between the rooms, with offers and counter-offers between the parties.
- Typically, a good mediator will encourage and push both parties to reach a settlement.
- Mediation is a slow process, with many steps and does not always lead to settlement.
Should an attorney be involved?
- The purpose of mediation is to reach a settlement agreement; an attorney is important as they need to look at the language of the settlement agreement in order to make sure that the family is protected.
Why is mediation effective?
- If a case is not settled, nothing is guaranteed going into hearing.
- In the case of mediation, if a settlement is reached you know what you are going to get in terms of placement, services, or reimbursement.
- For example, if there is an agreement of reimbursement for services that amount is guaranteed.
- If there is an agreement for additional speech or occupational therapy hours, those hours are guaranteed.
- However, if no settlement occurs, the case moves toward hearing.
- Hearing does not guarantee that the judge will rule in a family’s favor.
- In mediation, resolutions can be creative. Services can be agreed upon that would never be granted by the court.
- For example, while a Judge may not order a district to pay for a specific private school, at mediation the parties may be able to agree on the school via a settlement agreement thus guaranteeing the student’s placement.
Why might mediation be unsuccessful?
- In many mediations, a finalized agreement is not reached. This does not necessarily mean mediation is not effective, as the discussions allow for increased understanding between parties and often will lead to an eventual settlement.
- If mediation is not successful, a settlement is often reached shortly before hearing.
- Mediation may also be unsuitable if there is a low quality mediator. Whereas excellent mediators will encourage parties to reach settlements, ineffective mediators will not necessarily push as hard.
Is mediation still a worthwhile effort?
- Yes. Although mediation will not always lead to a settlement, it enables better understanding between parties.
This summary is part of our complete Beginner’s Guide to the Special Education Legal Process.