The Use of the Resolution Process and/or Mediation in Due Process Hearings

1. The Use of the Resolution Process and/or Mediation in Due Process Hearings Andy Eulass, Due Process Coordinator Sherry Colegrove, Mediation Coordinator Director’s Conference July 31, 2008

2. What is a Resolution Process? • A mandatory procedure triggered by due process • Requires parties, absent a mutual waiver to convene a meeting to discuss possible settlement of the dispute • Creates a legally-binding framework for resolving the dispute, if a resolution can be reached

3. The Basics (20 USC 1415(f)(1)(B)) • Within 15 calendar days of “receiving notice of the parents’ due process complaint” the district “shall convene” a resolution meeting • Must include a district representative with decision-making authority; • Must include a member or members of the IEP team having “specific knowledge” of the facts underlying the hearing request

4. The Basics (cont.) • May not include the district’s attorney unless the parent is accompanied by an attorney • “where the parents of the child discuss their complaint, and the facts that form the basis of the complaint and the [district] is provided the opportunity to resolve the complaint” • District is provided up to the 30th day following its receipt of the complaint in which to resolve the hearing request “to the satisfaction of the parents”

5. The Basics (cont.) • If resolution is achieved, the resolution shall be memorialized in a legally-binding agreement, signed by both parties (district signatory must have decision-making authority) • Agreement may be voided by either party within 3 business days of the agreement • After three business days, agreement is enforceable in a US district court or state court of competent jurisdiction

6. What Do I Need to Do? • Be prepared to schedule your meeting as soon as possible • First meeting must occur by the 15th calendar day after the district receives the request • Cannot be cancelled unless both sides agree to waive resolution

7. What Do I Need to Do? (cont.) • Be prepared to inform the hearing officer of the status • Hearing officer will want to know • Scheduling • Whether both sides are participating • Whether both sides have waived • Make sure you provide the waiver to the hearing officer • Whether settlement has been reached (i.e., whether the request can be withdrawn)

8. What Do I Need to Do? (cont.) • Ensure your people are there: • Individual with decision-making authority • Members of the IEP team having knowledge of the facts underlying the hearing request

9. What Do I Need to Do? (cont.) • Find out who the parent plans to bring • If the parent’s attorney comes, you can bring your attorney (note: attorney means attorney) • IDEA and regs do not expressly prohibit parent from bringing other persons to the meeting but you have a right to prohibit persons who may cause you to share otherwise confidential student information, or who impede the orderly conduct of the meeting

10. What Happens If… • The parent chooses not to participate: • Can delay the start of the hearing timelines • Can result in dismissal of the hearing request

11. What Happens If… • The District refuses to participate: • Can result in an immediate triggering of hearing timelines • Can result in a default against the district if, after due notice by the hearing officer, the district fails to convene the meeting (Illinois School Code, Section 14-8.02a)

12. Other Options • A resolution session need not occur if: • The parties mutually agree in writing to waive the process completely • The parties mutually agree in writing to utilize the mediation process in lieu of resolution

13. What Happens if… • The parties mutually waive the resolution process completely • Timelines for the hearing trigger immediately upon the execution of the waiver (i.e., your 45-day hearing clock begins to run)

14. What Happens if… • The parties mutually waive the resolution process and voluntarily agree to enter into state-sponsored mediation • One or both parties must contact the ISBE to begin the mediation process

15. What Happens if… • The parties begin to meet but decide to break off discussions before the end of the resolution period: • Timelines for the hearing trigger at the point discussions are terminated and the parties agree in writing that no agreement is possible (i.e., the 45-day clock again begins to run) (34 CFR 300.510(c)(2))

16. What Happens if… • The parties agree in writing to use mediation instead of resolution before the resolution process begins (i.e., before the 15th day after receiving the hearing request) • The parties are afforded the same timeframe to conduct the mediation that would enjoy if they engaged in resolution

17. What Happens if… • The parties start the resolution process but then decide to undertake mediation • Resolution process timelines remain in place and may, if mediation continues, extend beyond the 30-day timeframe for resolution (34 CFR 300.510(c)(3)) • NOTE: In order for the timelines to be extended, the parties must agree in writing that the mediation will extend beyond the 30-day timeframe for resolution

18. Resolution Agreements – Some Tips • Remember that if you reach agreement with the parents, you must memorialize your agreements in writing • The written agreement must be signed by both parties and is LEGALLY BINDING (court enforceability) (34 CFR 300.510(d)(2)) • The sole exception to the enforceability rule allows a party within 3 business days of the signing of the agreement to void the agreement (“buyers remorse”)

19. Resolution Agreements – More Tips • When writing up an agreement, consider the following questions: • Does it outline clearly what each side is expected to do and when? • Are the things you and the opposing party undertaking in agreement legal under IDEA? • Are the items clearly written and composed in a way that the parent can reasonably understand?

20. Resolution Agreements – More Tips • It’s a good idea to make sure that you wait until the 3-business-day avoidance period is over before implementing the agreement

21. If you reach an agreement, remember… • If the parent and you agree that the matter is settled once the agreement goes into effect, make sure that you secure the withdrawal of the hearing request and get it to the hearing officer

22. What is Mediation? • A voluntary process in which a neutral third party (mediator) assists parties with the goal of resolving their dispute in an informal and confidential meeting. • Mediation agreements are legally binding and enforceable in any state court of competent jurisdiction or in a district court of the United States. [20 USC Sec 1415(e)(2)(F)]

23. Mediation Basics • Mediation can be requested by both parties with or without filing for a due process hearing. • Mediation cannot be used to deny or delay a due process hearing. • All discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding.

24. Mediation Basics (cont.) • Participants must include persons who have legal authority to act on behalf of the student and district respectively. • The number of participants shall generally be limited to three persons per party and may include attorneys, advocates, interpreters and other relevant parties. • The district may bring their attorney even if the parent is not represented by an attorney.

25. Mediation Basics (cont.) • If an agreement is reached, the agreement shall be memorialized in a legally-binding agreement, signed by both parties (district signatory must have decision-making authority). • The mediation agreement is enforceable in a US district court or state court of competent jurisdiction.

26. What Do I Need to Do First? • Contact ISBE to begin the mediation process • Then be prepared to schedule mediation as soon as possible • Mediation should occur within 30 days of the parties agreement to mediate. • If necessary, the parties may ask the hearing officer to extend the timeline in order to complete mediation. • Mediation is scheduled for a mutually agreeable date, time and location convenient to the parties.

27. What Do I Need to Do Next? • Also be prepared to inform the hearing officer of the status • Hearing officer will want to know: • Status of mediation • If scheduled, mediation date • If agreement reached in mediation, status of the due process hearing • If applicable, make sure you provide the withdrawal or postponement form to the hearing officer

28. Then What Do I Need to Do? • Determine who you want to participate at mediation • Be sure to include an individual with decision-making authority. • Also bring a staff member who has knowledge of the facts underlying the hearing request. • Look for common dates that your party is available for mediation. • Wait for the mediator to contact you by telephone or e-mail.

29. What will the Mediator Do? • Contact each party to schedule a mutually agreeable date, time and location for mediation. (Typically, mediations are held within the public school district) • Share with each party the names and titles of the participants who will attend mediation. • Will not discuss the issues of dispute privately on the telephone with either party. • Discussions will only occur at the mediation session.

30. Your Role in Mediation • Approach mediation in good faith with the intent of reaching an agreement. • Acknowledge and honor the ground rules for mediation. • Be an active participant. • Present your perspective, including all relevant information and solutions you would be willing to offer. • Recognize that mediation requires the give and take of ideas and offers before solutions are agreed to and an agreement reached.

31. At the beginning of mediation… • The mediator will ask both parties to sign a: • Waiver which states the parties agree not to compel the mediator to appear at any subsequent administrative or civil proceeding arising from this dispute. • Mediation Record which requires each individual to verify their attendance by signature and title or relationship to student. • This form also reminds each party that all discussions that occur during the mediation process must remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding.

32. At the conclusion of mediation… • The mediator will either: • Assist the parties in writing a clear, concise agreement to be signed by both parties. • Terminate the session if it becomes evident that an agreement cannot be reached. • Schedule another mediation, if needed and agreed upon by both parties.

33. Result of Mediation Session - Agreement • If the parties attend mediation and reach a satisfactory agreement: • The agreement must be memorialized in a LEGALLY BINDING agreement and signed by both parties who have decision-making authority. • If the due process hearing is withdrawn or postponed, the parties will complete a form provided by the mediator. • The parties must then notify the hearing officer of the withdrawal or postponement of the hearing.

34. Components of Mediation Agreements • The agreement: • Specifies the timelines for implementation of agreement. • Indicates what action is expected of each individual or party. • Indicates the responsibilities of each party to implement. • Specifies whether the due process hearing is withdrawn or postponed. • Is signed by the parent/guardian and the authorized agent for the district.

35. Result of Mediation Session – No Agreement • If the parties attend mediation but do NOT reach an agreement: • The mediator will terminate the session. • No agreement will be written. • The only record kept of the mediation is the result, a listing of the participants, and the date, time and location of the session. • The parties will move forward with the hearing and all relevant timelines.

36. Questions or Concerns? Andy Eulass Due Process Coordinator ISBE 100 N. 1st Street Springfield, IL 62777 aeulass@isbe.net 217-782-5589

37. Questions regarding Mediation? Sherry Colegrove Mediation Coordinator ISBE 100 N. 1st Street Springfield, IL 62777 scolegro@isbe.net 217-782-5589