Resolving Education Disputes

1. Resolving Education Disputes Scott F. Johnson

2. About Me • Professor of Law at Concord Law School • Hearing Officer with NH Dept. of Education • NHEdLaw, LLC www.nhedlaw.com • Education Law Resource Center www.edlawrc.com

3. Overview • Talk primarily about basic ways to resolve disputes under IDEA • Talk about some changes in IDEIA • Tips for trying a case • Talk about some specific mediation approaches and ways to resolve disputes • This PowerPoint is available at www.edlawrc.com

4. IDEIA • Will cover three ways to resolve disputes: neutral evaluation, mediation, due process/court. • Some changes to dispute resolution in IDEIA • Mostly in the area relating to due process hearings in terms of process and notice.

5. Neutral evaluation • Opinion from hearing officer about strengths and weaknesses • Present limited evidence in writing and make arguments. • Hearing officer makes recommendation on how they would rule. Parties can accept or reject. • Not bound if reject • Process is confidential

6. Mediation • Parties try to resolve differences with the help of a trained, neutral third party • Confidential • Provided at no cost to the parties • If agree, becomes binding, written agreement that is enforceable in court • Different methods can be used to help resolve disputes (discussed in detail in a minute)

7. IDEIA • Now requires states to offer mediation at the outset • Can request just mediation or mediation and due process • My state of NH has offered it for sometime and schedules it when a hearing is requested

8. Due process • Adversarial proceeding • Witnesses, attorneys, hearing officer • Parties have certain rights defined by statute in terms of presenting evidence, cross-examining witnesses, establishing a record and appealing. • Hearing officer makes a decision • Loser can appeal to state or federal court • Attorney’s fees

9. IDEIA • New law now requires the parties to have a “resolution meeting” before going to hearing when parent requests due process. • Must happen in 15 days of request for hearing. • Like an IEP meeting, but a person with decision-making authority to resolve the dispute must attend. • Discuss the request for due process and school is given a chance to resolve the issues.

10. IDEIA • If agree, written settlement agreement • Buyers remorse for 3 days – both sides • School attorneys cannot attend unless parent attorney attends • Parties can waive the meeting requirement by agreement or substitute mediation for it • If can’t agree go to hearing or mediation/neutral evaluation

11. IDEIA • Law requires parties to be more specific in their requests for due process • Can’t raise things that were not in the request • Other party can ask for more information if request not sufficient – sufficiency hearings • Idea is to put parties on notice of the issues to be addressed at hearing

12. Tips for Trying a Case - Hearing Officer Perspective

13. Tips for trying a case

14. Mediation Approaches Positional negotiation • Develop a position and insist the other person agree to it. • Start at an extreme and work towards the middle • Start near actual position and hold until the other person comes close enough to it

15. Positional negotiation • Involves strength and weaknesses of the case. • Each side attacks the other’s position and case. • Threaten action if other person does not come to your position.

16. Mediation Approaches Problem Solving Approach • View things as a shared problem to be resolved by both sides. • More work. • Can produce a better, longer lasting outcome.

17. Problem Solving Approach Seven Elements • Relationship between the parties • Communication between the parties • Each party’s Best Alternative to a Negotiated Agreement (BATNA) • Interests of the parties • Creative options • Standards of Legitimacy • Commitment

18. Relationships • Perhaps the most important part • Working on it has its own intrinsic value and corollary benefits • Treat others with respect • Work on the relationship

19. Common relationship builders • Bring food and drinks to meetings • Be courteous • Don’t retaliate • Don’t personalize • Don’t blame • Don’t yell • Express feelings but calmly

20. Scott’s Crazy Ideas • Try to get to know the person. • Try to do something unrelated to special education. • Invite the other person to do something with a project, school committee or outside of school group or committee.

21. Communication • All participants have to really listen. • Active listening • Acknowledge things you agree with • Clarify and confirm what speaker said • Empathize

22. BATNA • Best Alternative to a Negotiated Agreement. • What you could obtain without an agreement from the other person. • Figure out the BATNA of others that are involved. • Both sides want to work to an agreement that is better then their BATNA.

23. Interests of the Parties • Have to get to the underlying concerns. • What the person “really wants.” • Have to figure it out for all involved. • Not always the specific solution on the table. • That might just be the position. For example, an out of district placement could be an interest in ensuring a child reads.

24. Creative Solutions • Not always obvious at first • Brainstorm • Don’t evaluate • Don’t attach to a suggestion to early • Talk through possible solutions with pros and cons • Look for the solution that is a mutual gain for all involved.

25. Legitimacy • Interests and options must be legitimate. • Something the system and process can provide • Bounds of legitimacy depend on the situation. • With special education some of those bounds are legal ones. • Others are fairness, reasonableness and the interests of the parties within their legal and ethical boundaries.

26. Commitment • Occurs at the end • Articulate precisely what each person is committing to. • Works well with settlement agreement process.

27. Questions