As more and more children qualify for special education services, there also seems to be more disagreements between parents and school officials. Since there is a potential for disputes, the Individuals with Disabilities Education Act (IDEA) has already outlined several dispute resolution options to help parents and school districts resolve their differences. While it is always best to resolve any issues early with the IEP team (before they spiral out of control), sometimes it does not always work out this way. When this is the case, parents are often left wondering what options they have available to them when issues arise between them and the school district. In these circumstances, there are a number of dispute resolution options that are accessible to parents, such as mediation and filing a due process complaint.
What is mediation?
Mediation is a voluntary process that brings both parties (you and the school district) together with a mediator to communicate with each other and resolve your disagreements. However, it should only be used when the issue cannot be resolved in a less formal way. You can request mediation anytime there is a disagreement between you and the school district about special education and/or related services. Mediation is available at no cost to the parent and all conversations are kept confidential. The end result is a written agreement that is legally enforceable.
Why would a parent request mediation?
If you have already discussed your concerns at an IEP meeting and the issue has not been resolved, then mediation can be a less adversarial alternative to settle a dispute. You can work more quickly with resolving your differences through one or multiple sessions in a free and flexible way. Parents may request mediation if they feel their child needs more or different special education services, have an issue with their child’s placement or do not agree with their child’s eligibility.
When preparing for mediation, it is important to make sure you:
⇒identify your child’s needs and your purpose for requesting mediation
⇒make a list of the issues that you want to discuss
⇒organize and prepare all your child’s educational records
⇒practice answering questions about your child’s needs and your position on the issue at hand.
But what if an agreement was not met in mediation?
Then, you have the option to file a due process complaint.
What is a due process complaint/hearing request?
A due process complaint or hearing request is a process that is used to resolve a formal complaint made by a parent or public agency (i.e., school district). This process is used to resolve disagreements relating to the identification, evaluation, educational placement or provision of a free appropriate public education (FAPE) to a child who needs or is suspected of needing special education and related services. It is important to note that under IDEA, due process complaints must be filed within 2 years of the date when a party knew or should have known of the problem. In addition, the written decision must be issued within 45 calendar days from the end of the resolution period. One of the important provisions while filing a due process complaint under IDEA is “Stay Put.” “Stay Put” protects your child’s placement and services while you are in due process from the date that the complaint was filed until the decision is final. This means your child will stay in their current educational placement unless you and the school district agree otherwise. If you are thinking about obtaining an attorney to do so during this process, it is in your best interest to at the very least consult with one. However, retaining an attorney is not “required” to file a complaint.
It is important to keep in mind that due process is more time consuming, emotionally straining and costly than mediation because it is the most adversarial option. However, some parents will have to go down this road. To prepare for this process, make sure you do your research!
You want to
⇒consult with an attorney who has experience in special education law
⇒be prepared to gather evidence (i.e. records, testimonies, witnesses) to support your case
⇒be able to fully explain what you want
⇒fully understand your State’s Procedural Safeguards.
Can I file a due process complaint before mediation?
Yes you can. However, mediation is typically attempted before the filing of a due process complaint. Most of the time, it is best to try mediation first.
Entering into a dispute with your child’s school district can seem overwhelming. But remember…a due process complaint should be your “last” resort. You do not want to go through this process if you do not have to. And neither do school districts. Believe or not, a lot of issues are resolved in a more informal way such as through an IEP meeting or mediation.
If you need help remembering some of the important differences between mediation and a due process hearing, download this chart.
Have you ever participated in mediation or a due process hearing?