This document was developed by CADRE, a project of Direction Service pursuant to
Cooperative Agreement CFDA H326D98002 with the Office of Special Education Programs, United States Department of Education. The opinions expressed herein do not necessarily reflect the position or policy of the United States Department of Education. Nor does any mention of trade names, commercial products, or organizations imply endorsement by the United States Government.
Many individuals contributed to this monograph. The authors particularly wish to recognize Marshall Peter, John Reiman, Terry Amsler, Charlene Green, Beth Harry and Aimee Taylor. Their thoughtful and substantive suggestions, along with the support and enthusiasm they expressed for Keys to Access, were critical to achieving a concise and practical document. We also greatly appreciate the support and guidance we receive from our project officer, Peggy Cvach. The document benefited from Tom Kelly’s creative ideas regarding design and layout.
School systems and families sometimes have different
perspectives about the education of children with
disabilities. When a family files for a due process hearing,
the Individuals with Disabilities Act (IDEA), Amendments of
1997 [P.L. 105-17] requires state departments of education to
provide access to mediation to help resolve these differences.
For some families mediation is a viable and relatively easily
understood process. For many families, however, mediation is
an unknown process and may seem inaccessible or
It is generally understood that families
who use procedural safeguards to resolve educational disputes
are typically highly educated and from middle or upper class
backgrounds. Individuals who are monolingual in a language
other than English or who speak English as a second language,
who identify with a culture different from mainstream American
society, or who are from socio-economically disadvantaged
backgrounds may not recognize mediation as an appropriate and
available process for help.
There are a number of
reasons for making mediation more accessible and responsive to
families from culturally, economically and linguistically
diverse backgrounds. When disagreements are resolved
collaboratively, they result in stronger communities, better
relationships between educators, service providers and
families, and improved outcomes for children and youth.
Conversely, when individuals and communities do not have
opportunities to express dissatisfaction early and in a
welcoming setting, school systems risk complaints, lawsuits
and allegations of racism, in addition to challenges to
Individual Educational Programs (IEPs).
demographics challenge educators to provide inclusive and
culturally relevant services to diverse populations of
students and families. It is projected that 40 percent of
clients in service delivery systems will be minority group
members by the year 2000 (Cross, et al., 1989). School
districts and boards of education may not be aware of the
barriers that stand in the way for families nor the strategies
that can open the doors to mediation. This document is
intended to provide educators with guidance that may help them
understand why some families may not participate in mediation,
and strategies for increasing the participation of families
from diverse backgrounds.
Most importantly, Keys to
Access offers practical recommendations that school personnel,
early intervention service providers, mediation providers, and
families can use to develop the knowledge, positive attitudes,
skills and strengths necessary for genuine collaboration. The
results of these collaborative partnerships may be reflected
in improved programs for children with
mediation is a flexible and informal process in which a third
party intervenor assists individuals (or organizations,
groups, institutions, etc.) to resolve a conflict. Whether
addressing a civil court case, family matter, special
education disagreement or any other kind of dispute, mediation
is conducted primarily as a problem-solving process (Moore,
1986; Folberg and Taylor, 1984). It is managed by a person
trained to facilitate discussions of each participant’s issues
and usually involves meeting together face-to-face with the
individuals who have a disagreement, and/or their
representatives. The goal is to create an agreement that
resolves differences and enhances the relationship between the
disputants. Generally, mediators are viewed as free of bias or
partiality in relation to the participants and resolution of
the dispute. A mediator does not make decisions regarding the
outcome of the matter; the participants do.
usually follow a process that is less formal than due process
hearings and has certain key features.
mediation process is a typical one in mainstream U.S.
It is important to note that “mediation” as described in this
paper refers to the generic process of mediation. The content
of this paper is not intended to be interpretive of the
mediation requirements under IDEA and does not reflect
official policy of the United States Department of Education
or the Office of Special Education Programs. For the reader’s
benefit, the main regulatory provisions for mediation
contained in IDEA ’97 are attached as Appendix
Mediation as an alternative to litigation has grown significantly in the United States since the 1960’s
(McGillis, 1997). It has been shown to be effective and satisfying in many ways.
Mediation as a process for
resolving disputes has resulted in economical decisions;
faster settlements; mutually satisfactory outcomes; high rates
of compliance; comprehensive and customized agreements;
greater degree of control and predictability of outcomes for
participants; personal empowerment; preservation of an ongoing
relationship; workable and implementable decisions; agreements
that are better than simple compromises or win/lose outcomes;
and decisions that hold up over time. (Rogers and McEwen,
However, the typical mediation model is not a
familiar process for much of the public, especially to those
not part of the mainstream culture. Any activity, institution,
or process that is strange, new, or unknown is much less
likely to be used than one that is familiar and
Mediation is often assumed to be culturally
neutral and applicable across contexts. In fact, any conflict
resolution process is embedded with culture. The “typical”
mediation model is founded on implicit cultural assumptions
that are often invisible to the mediator or mediators and any
participants who share that culture. They may be foreign or
even counterproductive in a different context or with those
who do not share those cultural assumptions (Lederach, 1995).
The process can and should be adapted to be appropriate and
responsive to all the participants in a particular
Each of us has a culture which affects how
we relate and respond to events. Cultural expectations and
life experiences influence our interpretation of what is or is
not an inter-personal or inter-group conflict, and the
selection of an appropriate way to handle disagreements. The
educational system in the United States serves people from
innumerable cultures, differing socio-economic backgrounds and
diverse life circumstances and, hence, is challenged to
acknowledge, respect, and provide for cultural
A culturally competent system is staffed
by people whose behaviors, attitudes, and policies recognize,
respect, and value the uniqueness of individuals and groups
whose cultures are different from those associated with
mainstream American culture. These populations are frequently
identified as being made up of people of color, such as
Americans of African, Hispanic, Asian and Native American
descent. Cultural competence can be developed by mediators of
any background, but will be enhanced by the presence of
members of diverse ethnic groups, who can provide first-hand
understanding of the issues involved in cross-cultural
mediation. Cultural competence improves services to everyone,
because each person has a culture and is part of several
subcultures, including those related to gender, age, income
level, geographic region, sexual orientation, religion, and
physical ability (Cross, et al., 1989).
systems are going to meet the increasing challenge to
implement culturally competent systems of services, they must
include collaborative dispute resolution strategies that
respect diverse methods of handling conflicts. In particular,
the goal must be to provide the type of mediation services
which will be truly acceptable to all people and, therefore,
accessible. This entails making mediation both a known entity
and a process with sufficient flexibility to respect diverse
customs and preferences for how conflicts are defined and
handled. Policy makers, administrators, early intervention
service providers, teachers and mediators are urged to
consider the following Keys and use them as informal tools for
assessing the extent to which their system welcomes or
discourages broad utilization.
For systems that fall
short, as almost all will, these Keys represent opportunities
for improvement. They can help create mediation services that
are not only responsive and relevant, but also the preferred
process for creating partnerships between families and
The following strategies might be
implemented by State Education Agencies (SEAs) and Local
Education Agencies (LEAs) to address policy and system design
The following strategies might be
implemented by SEAs, LEAs, program managers and others
responsible for educating community members about the
availability of mediation services and promoting the use of
mediation in their communities.
The following strategies might be
implemented by program managers and intake coordinators to
help ensure that case management and service delivery is
responsive to the unique needs of individual
The following strategies can be
implemented by program managers and mediators to help ensure
that mediation sessions are conducted in a fashion that is
responsive to the unique needs of individual
The common reasons that some families offer for not using
mediation services are their lack of understanding of
mediation and anticipating the process will not accommodate
their needs and preferences for a fair method of resolving
conflicts (elicited from focus groups at ALLIANCE Leadership
& Training Institute, Albuquerque, NM 1999). Asking
families if there are particular ways the school can help is
always a good idea. Though legal, economic, educational, and
relationship benefits are likely results of inclusive access
to special education mediation services, the ethical
imperative of “doing the right thing” should not be forgotten.
Inherent in the best of being human is the capacity to extend
oneself, not out of charity or because of mandates. Using the
strategies in Keys to Access gives us a concrete opportunity
to demonstrate a commitment to equal access, mutual respect,
and basic human rights. The Keys presented in this document
are as much about opening up oneself, as they are about
opening the mediation conference room to those who are
traditionally underrepresented or disenfranchised.
It is CADRE’s hope that Keys to Access will provide support and
guidance in the process of identifying and
utilizing culturally appropriate methods of engaging, serving and
responding to conflicts. It is CADRE’s belief that these
strategies will help schools create mediation systems that are
not only acceptable and relevant, but also the preferred
process for creating partnerships between families and service
providers or educators serving children and youth with
Cross, T. ,
Bazron, B., Dennis, K., & Isaacs, M. (1989). Towards a
culturally competent system of care (Vol. I).
DC: CASSP Technical Assistance Center, Georgetown University
Child Development Center.
Folberg, J., & Taylor, A.
(1984). A comprehensive guide to resolving conflict without
San Francisco: Jossey-Bass.
J.P. (1995). Preparing for peace: Conflict transformation
Syracuse, NY: Syracuse University
McGillis, D. (1997). Community mediation
programs: Developments and challenges.
National Institute of Justice.
Moore, C. (1986) The
Mediation process: Practical strategies for resolving
San Francisco: Jossey-Bass.
& McEwen,C. (1994). Mediation, law and policy (2nd ed.).
Eagan, MN: Clark Boardman Callaghan.
The following list includes organizational resources available to
those seeking to learn more about cultural differences,
acquire training materials, or speak to experts in the area of
program design and service delivery.
1540 Market Street, #490
San Francisco, CA
mediation program helped pioneer the use of multiethnic
conciliation boards. Their case
include the use of “gatekeepers” as outreach contacts for
different ethnic communities.
Their intervention model is
very adaptable and they have developed Spanish language
materials. In 1995, Community Boards trained educators,
parents, advocates, and social service providers to use
conciliation panels for resolving
Diversity Committee-ABA Section on Dispute Resolution
American Bar Association
740 15th St.
Diversity Committee provides information and technical
assistance on the full spectrum of ADR processes. They conduct
studies on existing methods for the prompt and effective
resolution of disputes and help adapt current legal procedures
to accommodate court-annexed and court-directed dispute
resolution processes. The Section conducts public and
professional education programs and supports the development
of programmatic and legislative models.
Mediation and Conciliation Service
2100 K Street,
This federal agency
exists primarily to promote stable labor-management relations.
It provides services and training on a variety of joint
problem-solving approaches. Recently, the Service has expanded
its efforts beyond the
employment realm to include systems
design as well as education, training and mentoring for
government agencies, public institutions and state and local
International Society for Intercultural
Education, Training and Research-SIETAR
P.O. Box 467
Putney, Vermont 05346
is an association comprised of professionals from a wide range
of disciplines who share a common concern for international
and intercultural relations. SIETAR provides a unique
opportunity for interaction with leaders in a wide range of
professions who share an interest in intercultural practice
and research. They also provide cultural awareness materials
for conflict resolution training.
For Community Mediation
1527 New Hampshire Avenue,
NAFCM is a membership
organization comprised of community mediation centers, their
staff and volunteer mediators, and other individuals and
organizations interested in the community mediation movement.
It serves as a national clearinghouse of information on the
development and practice of community mediation, and fosters
communication and mutual assistance in such areas as training,
funding, technology, and program and policy
National Coalition Building
1835 K Street, N.W., Suite 715
NCBI is noted for
its prejudice reduction workshops and efforts in service of
multicultural coalition building.
for Urban School Improvement
Education Development Center,
55 Chapel Street
Newton, MA 02458-1060
NIUSI provides a
forum for dialogue, networking, technology, action research,
information systems, alliance and
related to inclusive urban communities, schools, and families.
The Institute also helps build
capacity for sustainable
and successful urban education.
3000 Connecticut Avenue, NW, Suite
conferences and workshops on professional issues related to
diversity, and produces educational
resource materials for
educators, trainers, mental health and social service
professionals. These include manuals on the training of
diversity trainers and health care professionals, books on a
variety of cross-cultural issues and videos on cross-cultural
Neighborhood Justice Center of
200 N. Vineyard Blvd., Suite A-320
community mediation program helped pioneer the development of
cultural training modules for mediation
following are readings recommended for those seeking to learn
more about dispute resolution,
mediation and cultural
Augsburger, D. (1992).
Conflict mediation across cultures: Pathways and patterns.
Louisville: Westminster/John Knox Publishers.
develops a general theory of cultural understanding of
conflict. Each chapter in the book begins with
usually from traditional societies, which illustrate the
principles set forth in the chapter. These principles
cross-culturally derived and descriptive of various dispute
Duryea, M. (1992). Conflict and
culture: A literature review and bibliography.
B.C.: Institute for Dispute Resolution, University of
This text provides an essay and a comprehensive
bibliography on conflict and culture. The essay is an analysis
of the problems of conflict within and between cultures and
presents an agenda for the further development of dispute
resolution in non-mainstream contexts. The bibliography is
organized topically and draws on both alternative dispute
resolution literature and the general literature on culture
Duryea, M., & Grundison, B. (1993).
Conflict and culture: Research in five communities in
Vancouver, British Columbia. Victoria, B.C.: Institute for
Dispute Resolution, University of Victoria.
publication chronicles and analyzes the results of field
research, exploring attitudes toward conflict and conflict
resolution as well as traditional and transitional ways of
addressing conflict used by immigrants to British Columbia.
The research reveals a close connection between how
respondents from five communities perceive and experience
conflicts, and problems related to settling in a new country.
The research indicates that a range of processes are needed to
accommodate cultural differences.
Fisher, R., &
Ury, W. (1991). Getting to yes (2nd ed.).
Getting To Yes is a bestseller that offers basic
principles for negotiating mutually acceptable agreements.
The authors focus on interest-based negotiation as well as
other components of their win-win principled bargaining
method. Examples covering the range of disputes from
inter-personal to international are highlighted.
issues of culture are not explored in this
Kritek, P. B. (1994). Negotiating at an uneven
table: Developing moral courage in resolving our conflicts.
San Francisco: Jossey-Bass.
The book consists of
chapters discussing the author’s fundamental assumptions about
balancing power, examining traditional approaches to dealing
with the uneven table, and ways in which the table can be
reframed. Ascribed and assumed characteristics, including
gender and culture, and their impact on power imbalances are
Lederach, J. P. (1995). Preparing for peace:
Conflict transformation across cultures.
Syracuse University Press.
This book examines the concept
of conflict transformation in the context of providing
training in conflict resolution skills in cultures other than
one’s own. He distinguishes between prescriptive and elicitive
models of training. The book is dedicated to setting out
approaches to developing elicitive training and implementing
it. The use of storytelling, role-plays, and trainee
involvement in training design are examples of the approach.
Myers, S., & Filner, B. (1994). Mediation across
cultures: A handbook about conflict and culture.
Amherst Educational Publishing.
This handbook focuses on
how mediation and culture fit together. It discusses the
dynamic nature of mediation as a conflict resolution process
in which individuals from different cultures can find creative
and workable solutions to disputes without giving up their own
values and beliefs. The case studies were written primarily
for mediators who are faced with intercultural disputes, and
those not formally trained as mediators who work in
multicultural settings and are interested in using mediation
as a mechanism for resolving disputes.
Some of these annotations were derived from book
reviews written by James Boskey and found in
Articles, Guides &
Barnes, B. (1994). Conflict
resolution across cultures: A Hawaii perspective and a Pacific
Mediation Quarterly, 12.
reviews various consensual methods of conflict
resolution-mediation, negotiation, and facilitation-
indigenous culture techniques capable of becoming culturally
appropriate for disputes across cultures. Models of addressing
multicultural disputes such as community boards, ethnic
conciliation commissions, educational campaigns in sovereignty
movements, and cross-cultural comediation are discussed from a
Hawaii practitioner’s perspective.
Barsky, A., Este,
D., & Collins, D. (1996). Cultural competency in family
Mediation Quarterly, 13.
discusses the need for mediators to learn about cultures other
than their own. It explores ways mediators can enhance their
ability to work with people from different cultures, using
examples from Vietnamese, Pakistani and Ismaili
Cross, T. , Bazron, B., Dennis, K., &
Isaacs, M. (1989). Towards a culturally competent system of
care (Vol. I). Washington, DC: CASSP Technical Assistance
Center, Georgetown University Child Development
This is a monograph on instituting effective social
services for children from non-dominant cultures who have
emotional/behavioral disorders. It provides strategies for
implementing change at the policymaking, administrative,
practitioner and consumer levels, and identifies service
adaptations and planning activities for cultural
Gadlin, H. (1994). Conflict resolution,
cultural differences, and the culture of racism.
Negotiation, 10 (J 33).
This is a theoretical article
that focuses on race as both an issue and element of disputes.
Included is a discussion on the limitations of associating
certain conflict management approaches to particular groups.
The author encourages examination of the mediator’s role when
disputes involve issues of race or ethnicity and recommends
the use of multicultural teams of mediators.
M., & Benjamin, M. (1989). Towards a culturally competent
system of care (Vol. II).
Washington, DC: CASSP Technical
Assistance Center, Georgetown University Child Development
This document reviews the historical and
demographic context of cultural awareness regarding children
with emotional/behavioral disorders. It also examines social
service programs that utilize culturally competent principles,
the lessons learned from these program sites, and priorities
for future activities.
LeResche, D. (1992). Comparison
of the American mediation process with a Korean-American
restoration process. Mediation Quarterly,
The mediation process used by community-based mediation
centers in the United States is compared with the informal
process for handling conflicts used by Korean-Americans.
Significant differences and some commonalities between the two
are presented and a framework for comparing conflict
resolution procedures is provided.
Merry, S. (1987).
Disputing without culture.
Harvard Law Review,
This is a review of the book Dispute Resolution
written by three law professors which is a “how-to”
publication designed for law students and lawyers. The review
author suggests the book would benefit from examining the ADR
movement within the context of “social, cultural, and
political dimensions”. The review also explores the basic
premises of ADR and the movement’s inadequacy with regard to
cultural conceptions of dispute processing.
(1996). A practical guide for the assessment of cultural
competence in children’s mental health organizations. Boston:
Judge Baker Children’s Center.
This article provides
guidance and tools for organizations seeking to become more
culturally competent. It includes issues and steps to consider
when conducting an assessment; procedures for gathering
assessment data; and reviews and examples of various
Rubin, J., & Sander,
F. (1991). Culture, negotiation, and the eye of the beholder.
Negotiation, 7 (J 249).
This brief article examines the
stereotypes negotiators typically bring to the table about
each other’s negotiating orientation or style. The authors
suggest the skilled negotiator will develop self-awareness
regarding their own pre-dispositions, and acquire information
about their counterparts as individuals beyond any
identifiable cultural or group affiliation.
Sec. 300.506 Mediation.
General. Each public agency shall ensure that procedures are
established and implemented to allow parties to disputes
involving any matter described in Sec. 300.503(a)(1) to
resolve the disputes through a mediation process that, at a
minimum, must be available whenever a hearing is requested
under Secs. 300.507 or 300.520-300.528.
Requirements. The procedures must meet the following
(1) The procedures must ensure that the
mediation process– (i) Is voluntary on the part of the
(ii) Is not used to deny or delay a parent’s
right to a due process hearing under Sec. 300.507, or to deny
any other rights afforded under Part B of the Act; and (iii)
Is conducted by a qualified and impartial mediator who is
trained in effective mediation techniques.
State shall maintain a list of individuals who are qualified
mediators and knowledgeable in laws and regulations relating
to the provision of special education and related services.
(ii) If a mediator is not selected on a random (e.g., a
rotation) basis from the list described in paragraph (b)(2)(i)
of this section, both parties must be involved in selecting
the mediator and agree with the selection of the individual
who will mediate.
(3) The State shall bear the cost of
the mediation process, including the costs of meetings
described in paragraph (d) of this section.
session in the mediation process must be scheduled in a timely
manner and must be held in a location that is convenient to
the parties to the dispute.
(5) An agreement reached by
the parties to the dispute in the mediation process must be
set forth in a written mediation agreement.
Discussions that occur during the mediation process must be
confidential and may not be used as evidence in any subsequent
due process hearings or civil proceedings, and the parties to
the mediation process may be required to sign a
confidentiality pledge prior to the commencement of the
(c) Impartiality of mediator.
individual who serves as a mediator under this part–(i) May
not be an employee of-(A) Any LEA or any State agency
described under Sec. 300.194; or (B) An SEA that is providing
direct services to a child who is the subject of the mediation
process; and (ii) Must not have a personal or professional
conflict of interest.
(2) A person who otherwise
qualifies as a mediator is not an employee of an LEA or State
agency described under Sec. 300.194 solely because he or she
is paid by the agency to serve as a mediator.
Meeting to encourage mediation.
(1) A public agency
may establish procedures to require parents who elect not to
use the mediation process to meet, at a time and location
convenient to the parents, with a disinterested party–(i) Who
is under contract with a parent training and information
center or community parent resource center in the State
established under section 682 or 683 of the Act, or an
appropriate alternative dispute resolution entity and (ii) Who
would explain the benefits of the mediation process, and
encourage the parents to use the process.
(2) A public
agency may not deny or delay a parent’s right to a due process
hearing under Sec. 300.507 if the parent fails to participate
in the meeting described in paragraph (d)(1) of this
(Authority: 20 U.S.C. 1415(e))
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