The Role of Attorneys in Special Education Mediation

A Briefing Paper
from The Consortium for
Appropriate Dispute Resolution in Special
Education (CADRE)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.

Table of
Contents


BACKGROUND



Historical
Basis: Conflict Resolution in Special Education


Mediation
as a Form of Conflict Resolution


General
Characteristics of Mediation


The
Growing Controversy


POSITION
I: IN FAVOR OF ACTIVE PARTICIPATION OF ATTORNEYS



Attorneys
and Advocates Can Overcome Power Imbalance
s


Attorneys
and Advocates Can Provide a Valuable Viewpoint and
Facilitate Settlement


POSITION
II: IN FAVOR OF EXCLUSION OF ATTORNEYS



Attorneys
and Advocates May Undermine Collaboration by Using
Adversarial Approaches


Mediators
Have the Ability to Overcome Power Imbalances


AREAS
OF AGREEMENT



AGREED:


Each
Side Should Enter Mediation Capable of Understanding and
Representing its Rights and Interests.



AGREED:



A
COMMON CONCERN: ATTORNEYS’ FEES


CONCLUSIONS


APPENDIX A:
20 U.S.C.
Subchapter 1415: Procedural Safeguards


APPENDIX B:
E
xcerpt from Report
of the Committee on Education and
the
Workforce of the United States House of
Representatives
on HR 5


APPENDIX
C:
Regulatory
Provision for Mediation Under IDEA 97




This
briefing paper examines the role of attorneys and, to a lesser
extent, advocates in special education mediation. Rather than
using conventional analysis to answer the question of what
role attorneys and advocates should play in special education
mediation, this paper “mediates” the debate by adopting the
structure of mediation. First, it examines the positions held
by both proponents and opponents of permitting attorneys and
advocates to participate in special education mediation. It
then considers the interests and concerns shared by advocates
of the two opposing views. Finally, the paper concludes with
practical recommendations that attempt to satisfy these common
interests.




BACKGROUND


Historical Basis: Conflict in Special
Education


The
Education of All Handicapped Children Act (known as EHA or
P.L. 94-142) and its successor, the Individuals with
Disabilities Education Act (known as IDEA and, in its most
recent form, IDEA 97) have been hailed as landmark legislation
of the past quarter century for children with special needs in
the United States.1
The law that grants children with
disabilities a federal entitlement to a “free appropriate
public education” (FAPE) replaced a patchwork of uneven
services that rarely met the needs of these children.2 The previously haphazard way in
which children were deemed to have a disability or placed in
special classes has been transformed by regulations that
require adherence by every school district to federally
mandated policies and procedures. EHA and IDEA emphasize the
importance of parents as members of the school-based team that
is empowered to make decisions regarding the educational needs
and services for children with disabilities. The framers of
the law recognized that there would be occasional disputes
between parents and school personnel regarding such issues as
eligibility for special education, those services needed to
meet educational goals and objectives, the frequency with
which particular services should be delivered, the degree to
which children could be educated with nondisabled peers, and
the sometimes elusive nature of what may be considered to be
within the scope of the special education entitlement. In
anticipation of the likelihood of such disagreements, EHA and
then IDEA set forth procedures which include administrative
due process hearings that were designed to resolve disputes
between school districts and parents.


Due
process hearings are formal, quasi-legal forums in which the
two parties to a dispute (generally the school district and
the parents) present arguments and evidence to a hearing
officer. The hearing officer, serving in a role similar to an
administrative law judge, makes a determination of legal
rights and responsibilities. Generally well versed in special
education law, the hearing officer renders a decision based on
interpretations of federal and state regulations as well as
precedents established through due process or court decisions
from other districts. Decisions may be based on substantive
issues as well as on violations of various procedural
safeguards, such as notifications of meetings to parents or
ensuring that meetings were held within a specified number of
days.3 Appendix A contains the procedural
safeguards for IDEA. Parties who do not prevail in hearings
may seek redress in federal district and then appellate
courts. Several cases regarding interpretations of EHA and
IDEA have reached the Supreme Court (Board of Ed. of Hendrick
Hudson Central School Dist. v. Rowley, 458 U.S. 176 (1982);
School Comm. of Burlington v. Department of Ed. of Mass., 471
U.S. 359 (1985); Florence County School Dist. Four v. Shannon
Carter, 510 U.S.7 (1993). The growth of case law, regulatory
interpretations through policy letters from the Office of
Special Education Programs (OSEP), and advancing knowledge
related to interventions for persons with disabilities have
made arguments in due process hearings ever more complex.
Parties are often represented by attorneys who specialize in
the arcane area of special education law. Parties frequently
hire experts to testify in support of particular perspectives.
Hearings have become time consuming, expensive, and
adversarial. One state, for example, reports that the average
due process hearing costs school districts $40,000.4 Crowley, Smith, and David reported
figures as high as $30,000 in 1991 dollars5 and Zirkel reports on a
Pennsylvania hearing that had 19 sessions during a two-year
period in which the cost of the transcript alone was
$27,000.6 Critics argue that IDEA now
guarantees an elaborate review process rather than any
meaningful entitlement to special education services.7 Parents report that the rigidity
and conflictual nature of hearings have a negative long-term
impact on the relations between families and personnel
associated with school districts.8 One writer went so far to describe
hearings as “stressful, even traumatic,” for many
disputants.9




Mediation as a Form of Conflict
Resolution


A variety
of alternative forms of dispute resolution have been proposed
over the years to deal with educational conflicts. Mediation
has been the most frequently recommended process.10 Most states began to offer
mediation during the 1980s, and, in 1994, Ahearn reported that
39 of the 50 states were operating special education mediation
systems.11 Research indicates a sustained
interest in special education mediation at the state
level.12 However, the only mention of
mediation in federal regulations prior to IDEA 97 was found in
the 1990 regulations in a note to the regulation governing
impartial due process hearings. That note indicated, “However,
the only mention of mediation in federal regulations prior to
IDEA 97 was found in the 1990 regulations in a note to the
regulation governing impartial due process hearings. That note
indicated, “Many states have pointed to the success of using
mediation as an intervening step prior to conducting a formal
due process hearing. Although the process of mediation is not
required by the statute or these regulations, an agency may
wish to suggest mediation in disputes concerning the
identification, evaluation, and educational placement of
handicapped children, and the provision of a free appropriate
public education to those children.” (34 CFR § 300.506, cmt.)
(October 30,1990)


The 1997
reauthorization of IDEA is the first time that mediation is
explicitly addressed as a preferred mechanism for conflict
resolution in special education. Gittler and Hurth write that
the “legislative history of IDEA 97 manifests a clear
congressional intent that mediation become the primary, albeit
not the exclusive, process for resolving disputes arising
under IDEA.”13 Appendix B provides an excerpt
from the House Committee that examined mediation as part of
the reauthorization of IDEA. Appendix C provides the
regulatory provision for mediation under IDEA 97. The
regulations specify the following (34 CFR § 300.506) (March
12,1999):



  • State
    and local education agencies must offer a mediation process
    whenever a due process hearing is requested.


  • Mediation must be voluntary on the part of the
    parties.


  • State
    and local education agencies cannot use mediation to deny or
    delay a parent’s right to a due process hearing, or to deny
    any other rights afforded under Part B of the
    Act.


  • States
    are obligated to bear all costs associated with the
    mediation process.


  • Mediation must be conducted by a qualified and
    impartial mediator who is trained in effective mediation
    techniques.


  • States
    may require that a disinterested party explain the benefits
    of mediation to parents who choose to decline this form of
    dispute resolution.


  • Mediations are considered private, confidential
    proceedings designed to facilitate open exchanges of
    information, and are not to be used as a tool for discovery
    should parties eventually go to administrative
    hearings.


General Characteristics of
Mediation


Mediation
is used in a variety of settings.14 In fact, the 1990s have witnessed
a veritable explosion in the use of this form of conflict
resolution. Currie notes that it has become an increasingly
utilized form of dispute resolution in medical malpractice and
child custody.15 McEwen, Rogers, and Maiman write
that mediation has become the dominant form of dispute
resolution in divorces.16 Annette Townley, former Executive
Director of the National Association of Mediation in Education
(NAME, now CRENet) estimated that more than 5,000 schools
nationwide offer some kind of conflict resolution
program.17 Mediation is utilized in such
school-related disputes as disciplinary problems, peer
arguments, parent and teacher conflicts, and
teacher-administrator problems.18 It is also used by teachers’
unions and school systems as a bargaining tool.19 Sabatino reports that “the range
of disputes now subject to statutory or court-annexed ADR
programs is mind-boggling.”20 In whatever setting mediation is
conducted, there are basic definitions of the process.
Baldridge and Doty note that “mediators are third parties, not
otherwise involved in a controversy, who assist disputing
parties in their negotiations…the mediator does not issue a
decision that parties must obey. Any party may choose not to
settle and may pursue other remedies.”21 Engiles, et al22 note that mediation:



  • is a
    voluntary process in which the primary parties must be
    willing to meet and discuss their concerns in order to
    negotiate a mutually satisfactory agreement


  • provides an opportunity and structure for the
    participants to have a full discussion of issues and to work
    collaboratively to create solutions


  • is an
    empowering process in which the parties are the decision
    makers and explore issues and design solutionsis a process
    for mutual problem solving and not for assigning blame or
    determining fault


  • guarantees confidentiality to all
    parties


  • emphasizes communication and creative problem solving
    with the mediator present to help the parties define the
    problem, explore each other’s interests, and work together
    to develop a solution, plan of action, or
    agreement.


  • is
    future-oriented (i.e., describes what future interactions,
    plans, agreements, or behavior changes will occur).


Boundy and
Antonucci compare the mediation and hearing
process
:
23


Mediation Hearing Process Comparison



The
Growing Controversy


While
mediation has received praise from parents24 and school district
administrators25 there are unanswered questions
about this increasingly popular form of dispute resolution.
Concerns include the fear that mediation may be employed when
issues of law need to be decided;26 that emphasis on the development
of a collegial relationship among families and school
districts could be achieved at the expense of advocating for
the interests of the child;27 that there is a lack of national
standards for training and a vagueness in state-specific
standards of certification;28 and, the uncertainty in the
mediator’s role. Some commentators express concern that all
participants may not approach mediation with a commitment to
collegiality and a nonadversarial mindset. There are school
district officials who contend that overly zealous advocacy by
attorneys on behalf of their clients can undermine the
collaborative, consensus-building nature of mediation.
Examples are cited of situations in which the litigious
atmosphere that frequently pervades hearings has been
reproduced in mediation.The role of attorneys and advocates in
special education mediation is controversial. Proponents of
attorney participation argue that there is an imbalance of
power between school districts and families if parents are not
represented during sessions. Opponents of attorney
participation look to the mediator to ensure a balance of
power and contend that lawyers bring a culture of contention
to mediation and undermine the collaborative nature of the
process. In approaching this issue, some states have offered
training on collaborative problem solving for all stakeholders
in the mediation process to encourage collegial decision
making. Other states have published expectations for the
behavior of all participants as they prepare to approach
mediation. Still other states have simply excluded or are
contemplating the exclusion of attorneys from the mediation
process. The role of the attorney in mediation is also being
debated within the legal community. A plethora of questions
are being posed: How does an attorney effectively define and
advocate for the interests of her client within the mediation
setting?29 Can the imperative of collegiality
hinder the pursuit of justice? Does a “successful”30 mediation mean that it was
necessarily “fair” to the child?31 Mediation promises significant
benefits over the inequities and inefficiencies of due process
for all members of the special education community.
Nevertheless, stakeholders in special education raise
important questions concerning the particular role attorneys
should play in the mediation of special education
disputes.




POSITION I: IN FAVOR OF ACTIVE PARTICIPATION OF
ATTORNEYS


Proponents
of an active role for attorneys and advocates in special
education mediation present two central arguments to support
their position. First, they assert that attorneys and
advocates can overcome the inherent power imbalances between
school district personnel and parents in special education
mediation. Second, they contend that attorneys and advocates
are important stakeholders in resolving special education
disputes, providing a valuable point of view, and often
facilitating settlement.




Attorneys and Advocates Can Overcome the Power
Imbalances.


Critics of
resolving special education disputes through mediation argue
that there is often an imbalance of power between
representatives of school districts and families who
participate in mediation. Examples of power imbalances include
lack of information by parents on the full scope of what
children may be entitled to under IDEA; the use of jargon by
school officials that, despite attempts at explanation, can
remain obscure and even incomprehensible for parents; lack of
parental experience in participating in such a setting;
cultural differences between families and school officials;
differences in negotiating skill and experience; and fear by
parents that perpetuation of conflict could hamper future
relationships with the school district. Advocates of this
position maintain that the tactics used in mediation by school
officials can overwhelm parents. School officials may be
reluctant to provide the services that parents request due to
the precedential impact of providing new or expanded services
to a particular child. Members of the school system are seen
as defenders of the status quo and protectors of the resources
that have been budgeted for the year. They may attempt to
discredit the parents’ request by contending that research
doesn’t support different outcomes for a child when the
desired service is delivered or they may cite anecdotal
evidence for the lack of efficacy of the service. Unless the
parent is also a professional in the field or is familiar with
the literature, it is difficult to pose effective counter
arguments. An attorney or advocate may be helpful because of
his or her awareness of literature that supports the parents’
position or because he or she can take issue with the school
system’s position by citing judicial decisions or standards in
other districts that support the parent’s request.


Parents
without representation may unintentionally use language during
a mediation that undermines their positions. For example, a
parent may be asked by a mediator to explain what she would
like for her child. Many parents reply by stating that they
just want what is best. The school district representative may
respond by saying that the system recognizes that the parent
would like what is best but that they are obligated, under
IDEA, to provide only what is appropriate. The parent is
probably unaware of the fine legal distinction between
services that are “optimal” versus those that are
“appropriate”, however, the school representative could use
the parent’s statement as evidence that the parental request
exceeds the scope of FAPE. A parent who is represented by an
attorney or advocate would probably be counseled about which
words to use when explaining what services are desired for the
child.


A Chicago
attorney and current President of Children with Attention
Deficit Disorder (CHADD) expresses views representative of
attorneys who assist parents in mediation. He writes that,
“Schools generally have greater control over information about
the child, the options available, and the law so they are in
the dominant position in mediation to start with. Many parents
may agree to things in mediation because they don’t know any
better and get a raw deal. Having counsel available for
parents levels the playing field to a significant degree,
especially if the attorney is experienced in special education
law.”32 An experienced California attorney
adds that, “Parents generally do not understand how to
formulate the issues or present the case on behalf of their
own child.33 The Executive Director of the
National Association of Protection and Advocacy Systems notes
that even attorneys who are parents of children with
disabilities often are represented during mediations because
it can be difficult to disentangle their perspective on the
needs of their child with their understanding of the
parameters of the law.34 Maine’s Due Process Coordinator,
Mike Opuda, conducted a study focusing on parental
satisfaction with the state’s complaint and due process
system.35 The theme of parental
powerlessness in the face of the system’s legal expertise and
resources was an issue frequently noted by parents. Kuriloff
and Goldberg’s study of the New Jersey mediation system
concluded that, “Parents with attorneys or advocates found the
mediation process fairer than those with…no representation
at all.”36


The
literature generally supports the position that parents should
have access to counsel because of a power imbalance with the
school system. Gittler and Hurth note that power imbalance can
lead to an “inequitable mediated settlement.”37 Schrag agrees, writing that
“parents are accustomed to following the guidance and
expertise of educators, and may be uncomfortable questioning
educators.”38 The clash of perspectives between
schools and parents can add to the challenge of collaborative
decision making according to Mnookin39 and Engel.40 Mastrofski writes that school
systems can have an overwhelming and formidable presence in a
mediation session because of the expertise they possess on the
nature of entitlements and how services are determined.41 Power imbalance can be exacerbated
through cultural and socioeconomic status differences between
parents and school.42 The National Council on Disability
acknowledges that:



Children
with disabilities and their families who are non-English
speaking, or who live in low-income, ethnic or racial
minority, and rural communities, are frequently not
represented players in the process. These individuals must
be included and given the information and resources they
need to contribute and advocate for themselves.43


Fiesta
Educativa of California provides training and advocacy for
Latino families in which a family member has a disability.
While the organization does not have an official position on
the participation of attorneys in special education mediation,
its director explains that, “The presence of attorneys in
mediation raises the stakes. The level and intricacy of the
process is more technical, more complex. Sometimes parents
need this kind of support in mediations. The attorney or
advocate elevates the power of the parents.”44 She relates that many Latino
families are unfamiliar with due process and suffer from power
imbalances. “They generally come from cultures in which
authority figures have significant influence. Without
representation, it is unlikely that they would have the skills
or mindset to challenge authority. The advocate enhances
parental authority both in the mind of the parent and in the
mind of the school district. They know that they will have to
deal differently with represented and unrepresented parents.”
The Director of Special Education for Alaska often calls on
tribal elders in remote Alaska villages to accompany families
to mediation since the tacit support of the elder enhances the
comfort of families in challenging educational authority.45 A spokesperson in the Montana
Office of Public Instruction also notes the discomfort some
Native American parents feel when challenging school
districts.46


An
attorney and parent advocate from Alabama is particularly
concerned about the difficulties that parents with limited
education can encounter in mediations. She says that “most
parents don’t know what to ask for in a mediation and need an
advocate to assist them.”47 She gives an example of her
request for compensatory education when she believed that an
appropriate education has not been forthcoming from a
district. “If a parent doesn’t know that such a thing exists,
how could they advocate for it?” She relates that better
educated people are more likely to seek representation in
mediation because they are more accustomed to accessing legal
assistance. She laments that these are the people who need
representation the least. Poor people, possibly intimidated by
both the legal system and the educational system, are unlikely
to have the resources or the inclination to seek
representation. Maine’s Due Process Coordinator writes, “Many
marginalized parents have not had positive school experiences,
resulting in limited education and lower incomes. These
parents feel very inadequate challenging the expert opinions
of schools. . . We see the majority of cases filed by parents
in the upper strata of the culture.”48


The
Alabama attorney also raises the point that attorneys are
advocates for the child. Sometimes the educational profile of
the child may not be fully understood by the parents. She
points out that an attorney with knowledge of special
education can review testing materials and the Individual
Education Program (IEP) to determine if the needs of the child
are being met. A parent may be able to be convinced by a
school district that a program that happens to be offered by
the school is suitable for the child but the needs of the
child may not be truly recognized by the school
system.


Several
parents who were interviewed for this project said that they
felt overwhelmed by mediation when they were unrepresented but
felt that they were accorded greater respect when they had
counsel or an advocate accompany them to the forum. Two
parents noted that the advocate actually never said anything
during the discussion but that there was a greater sense of
conciliation by the school district representatives, which
they attributed to the presence of the advocate.




Attorneys and Advocates Provide a Valuable Viewpoint
and Often Facilitate Settlement.


As
mediation has become an increasingly utilized form of dispute
resolution, many attorneys have incorporated it into their
representation of clients. Some attorneys argue that mediation
is simply a variation on the traditional out-of-court
settlement process. Gordon writes that mediation facilitates
the normal practice of negotiation rather than reducing the
need for trials.49 One benefit of mediation is that
it gives structure and deadlines to facilitating the
settlement process, providing a significant event around which
negotiation can occur. Attorneys provide important legal
advice and advocacy in this direct form of negotiation,
according to Lande.50 A number of state and local
special education mediation directors note that attorney
participation during mediation makes the process more
effective than when parents are unrepresented. Several themes
emerged from interviews. Lawyers can help families and school
districts determine reasonable expectations both of their
children’s educational achievement as well as the school
district’s delivery of services. Typical of comments were
those of the Legal Specialist at the Oregon Department of
Education. She said that parents frequently accept a proposal
from a school district if their attorney endorses it while the
same proposal may be rejected without the support of counsel.
If there is mistrust between the school district and parent,
the parent may be suspicious of any recommendation that is
made by the school representatives. But parents assume that
the attorney is acting in their best interests and can
evaluate whether a district’s recommendation is
reasonable.51 The president of CHADD writes
that, “attorneys can be a reality check for parents. Often
parents are caught up in a level of anger that interferes with
pragmatism and good outcomes. Attorneys can help moderate this
phenomenon.”52


The
Coordinator of Mediation for West Virginia writes that
attorneys can assist parents in developing a future
orientation. “They assist parents in focusing on the issues
that can be resolved rather than dwelling on situations that
happened in the past and cannot be changed.”53 Kentucky’s Mediation Director
argues that attorneys give mediation focus and help move it
forward quickly. She recounts several cases in which attorneys
were able to defuse tension that had developed between
districts and families.54 Eva Soeka, Professor of Law at
Marquette University in Milwaukee, Wisconsin strongly supports
the benefits of attorney participation. She emphasizes that
lawyers can be trained to appropriately represent their
clients while recognizing how to determine when school
districts have made reasonable attempts at providing programs
that are educationally beneficial to children.55


An
attorney in Madison, Wisconsin echoes this theme. He relates
that attorneys can provide objective, unemotional
perspectives. They can also offer parents a sense of what the
law requires as well as its limitations. They can assist
school districts by giving advice to superintendents and
school boards that may balk at the high cost of services when
these are presented by the Director of Special Education.56


There is a
trend in some states to limit attorney involvement to the
provision of guidance to families prior to mediation,
telephone or caucus consultation to families during mediation,
and review of the agreement following the mediation. This
excludes lawyers from direct participation in the actual
deliberations but accords families the opportunity for
counsel. Those who find attorneys helpful in the mediation
process criticize this policy, arguing that it discounts the
importance of the interpersonal dynamics that take place
during a mediation session. An attorney who is not actively
involved in the deliberation may contend that she could have
influenced the outcome of the negotiations and that a better
agreement could have been devised. She may then advise her
client not to sign the proposed agreement. The Coordinator of
Due Process and Mediation in West Virginia recounts the
frustration of a mediation in which all parties came to
consensus after protracted negotiations. “Days after the
mediation agreement was reached at a session in which the
attorney was not present, the individual told the parent not
to sign the agreement. Without having been present, he was not
in a position to know how the issues had been resolved.”57 This may prove especially true for
attorneys for school districts who do not participate in
mediation. Without having been privy to the negotiations,
school district attorneys may focus on other legal
considerations of the district in general and not the specific
issues of the mediated case.


Proponents
of attorney participation in the mediation process express
concern that exclusion of attorneys could marginalize them and
lead them to counsel clients against participation in this
form of dispute resolution.58 Mandatory exclusion creates an
economic disincentive for attorney involvement. Unless
addressed in a mediation agreement, families must generally
bear the costs of attorneys’ fees. Typically, however, those
fees are considerably lower than those incurred in litigation.
If lawyers are unable to participate in mediations, they may
advise clients to go to due process. This may be especially
true for attorneys representing school districts. Federal
regulations continue to provide for reimbursement of
attorneys’ fees for due process hearings in specific
situations. Ironically, it may be in the interest of attorneys
and families to go to due process in states that exclude
lawyers during mediation. For individuals who are committed to
the presence of counsel during discussions, this is the only
vehicle to ensure active legal representation. It should be
noted that such a trend has not occurred in exclusion states
at this time but observers mention it as a source of potential
future concern.


POSITION II: IN FAVOR OF EXCLUSION OF
ATTORNEYS

Proponents
of excluding attorneys and advocates from special education
mediation offer two key arguments to advance their position.
First, they insist that attorneys and advocates can undermine
the collaborative process of mediation by approaching it from
an adversarial perspective. Second, they assert that attorneys
and advocates are not necessary to overcome the power
imbalances inherent between school district personnel and
parents.


Attorneys and Advocates May Undermine Collaboration
by Using Adversarial Approaches.


At least
seven states (Alaska, Arkansas, Delaware, Idaho, Maine, New
Hampshire, Pennsylvania, Washington) formally exclude or
discourage attorneys from participating in mediation.59 Several other states are
considering such a policy. The main reason for exclusion
typically acquired through anecdotal evidence, is the belief
of key policy makers that attorneys maintain an adversarial
posture in mediations. Mediation directors chronicle examples
of attorneys who polarize discussions, make unreasonable
demands, and promote an atmosphere of tension in
deliberations. Participants and observers of this process
conclude that such behavior, which has become a regrettable
characteristic of due process hearings, is contrary to the
goals of mediation.


Even
mediation directors who are generally favorable to attorney
participation provide examples of lawyers who are known for
their aggressive tactics and harsh interpersonal style.
Boutique law firms have emerged that focus exclusively on
special education issues. The
Washington Post
reported that a law firm in the
metropolitan Washington, D.C. area garnered more than $3
million from the District of Columbia and surrounding counties
in attorneys’ fees.60 Lawyers in such firms are seen as
seizing on what directors perceive as trivial procedural
violations by school districts as a mechanism to threaten to
take school districts to due process hearings. Mediation may
be used as a forum in which the lawyer recounts the school
district’s failures to provide FAPE rather than as a setting
to resolve conflict. The Director of Special Education from
the state of Washington recounts a 1995 case in which an
attorney behaved in an obstructionist manner and was perceived
as undermining the developing consensus in the mediation.
Although attorneys had accompanied less than 5% of parents to
mediations and the behavior of this attorney was exceptional,
the state chose to exclude attorneys from future mediations.
The view that attorneys can be a hindrance to the development
of a cordial process and appropriate outcome is shared by
mediation directors in such diverse states as Alaska, Idaho,
and California and is expressed by some in written policies.
The Alaska mediation handbook notes: “It is suggested that
attorneys not be present as they add a formality to the
setting that is more appropriate for a due process
hearing.”61 The Idaho policy includes a
statement that, “Since mediation is a nonadversarial process
which offers the parties the opportunity to communicate
directly with each other, legal representation during a
mediation session will be strongly discouraged.”62 The Director of California’s
mediation system explains that a proposal to limit attorney
involvement failed in last year’s legislative session. He says
that the present system is characterized by strong attorney
involvement with often acrimonious relationships between
lawyers and school district representatives.63 Writers such as Spier criticize
lawyers for verbal aggressiveness and not recognizing the
distinction between mediation and litigation.64
A mediator and law student in California is one among many
observers who ascribe the win/lose style of attorneys to the
adversarial orientation that has been traditionally promoted
in legal training65 , a training that Jacqueline
Nolan-Haley writes encourages lawyers to become “connoisseurs
of conflict.”66


Unproductive communication between representatives of
parents and school districts is not limited to attorneys.67 An advocate from Georgia laments
that other advocates sometimes “know only half of the law(s),
have no negotiation skills, no functional knowledge of the
child’s specific disability or needs. They seem to think their
job is to be a ‘pit bull’ and ‘attack’ the school system in a
direct and personal fashion. This negates my credibility, and
damages my ability to work with the school. I have to ‘clean
up’ after advocates. . . I think we need some baseline
professional standards for those who call themselves ‘special
education advocates.’”68 Mediation practitioners and
academics also accuse attorneys of bad faith when they do
participate in special education mediation. Although the
federal regulations specifically prohibit mediation as a
source of discovery (see Appendix C), critics contend that
some attorneys use mediation for this purpose. Sternlight
writes that attorneys have been known to undermine the
mediation process by acquiring information that is later used
in a more litigious setting.69 Opuda writes that some of the
parents in his survey concluded that the school
representatives used mediation to learn about the arguments
that parents would use in due process hearings.70 A veteran special education
attorney and hearing officer noted that, “mediation can be
abused by any party where it is used to obtain
discovery.”71 Even if not negotiating in bad
faith, attorneys who routinely participate in mediation may
shift the focus of the process away from their clients. They
may make the process too attorney centered, moving the
emphasis away from one-on-one discussion between the parties.
This is a concern of Lande who maintains that the excessive
professionalization of mediation could mean that the parties
become dependent on lawyers for managing mediation
strategy.72 The California Mediation Director
describes a state system that has moved in that direction.
Rather than direct discussion among the parties, he reports
that attorneys are the main players in the process. The
mediation system is actually a mechanism of caucusing between
lawyers and clients. Stakeholders rarely talk with each other
directly. There is no direct brainstorming and discussion;
most parents retain attorneys throughout the process.73




Mediators Have the Ability to Overcome Power
Imbalances.


Proponents
of excluding attorneys from special education mediation
believe that lawyers are not needed to create a balance in
power. Rather, they suggest that mediators can protect the
equity of the process by playing an active rather than passive
role in the discussion. Employing evaluative, as opposed to
facilitative, mediation techniques,74 a special education mediator may
interpret jargon, assess risks, and offer recommendations for
parents in order to ensure a fair negotiation.75 An evaluative mediator does not
advocate for parents;76 rather the mediator attempts to
create a balanced discussion in which the parties may
understand, articulate, and achieve their interests.77 Employment of evaluative
mediators, therefore, obviates the need for attorneys to
balance power between families and school districts.78


Baldridge
and Doty79 argue that mediators level the
playing field and suggest considering exclusion of attorneys
for school districts and families in mediation. Gitler and
Hurth 80
support the use of certain strategies to overcome power
imbalance while acknowledging that the use of such strategies
might compromise the mediator’s neutrality. Therefore, the
best mediators for special education disputes may prove those
who possess both facilitative and evaluative skills and are
able to manage a process that addresses both the rights and
responsibilities of families and school districts and helps to
build strong
relationships.


Several
state mediation directors look to the mediator to play an
active role. West Virginia’s Director writes that, “The
mediator has the discretion to control the mediation process,
and if the mediator wants the parties rather than an attorney
to speak, he or she could make that decision. It is the
mediator’s responsibility to make sure an imbalance does not
affect the process.”81 The Mediation Director for the
South Dakota State Education Agency (SEA) notes that, “Most of
our mediators have a pretty firm hand when dealing with
attorneys. They lay the ground rules at the start of the
conference and aren’t shy about reminding them what they
should and should not be doing during the mediation. . . Our
training provides that the mediators set the seating up to
ensure that parents and school are first and foremost.”82 Alaska’s Director of Special
Education also relies on mediators to balance the power during
mediation.83 Maine’s Mediation Coordinator
proposes that mediators inform all parties at the beginning of
a session that they will enforce the “three strikes rule.” He
defines this as telling parties that interruptions and
antagonism will not be tolerated during discussions. The first
time this occurs the mediator will warn the offender. The
second time this occurs there is warning and notice that the
mediation will be terminated if the party continues to be
antagonistic. Upon the third incident, the mediation is
recessed or terminated. If recessed, the parties may be told
to take 10 minutes, an hour or a day and come back ready to be
respectful. If terminated, the parties are advised that they
may proceed to a hearing or file another request for mediation
when they are ready to be respectful.84


Parents
can also be trained to advocate for themselves and one another
in mediation. The National Council on Disability recommends
“self-advocacy training programs for students with
disabilities and their parents focused on civil rights
awareness, education and secondary transition services
planning, and independent living in the community.”85 Pennsylvania’s Mediation Director
explains that her state has excluded attorneys from mediation
since 1988.86 Non-attorney advocates play a
significant role in the mediation system and often accompany
parents to these forums. The Pennsylvania advocacy community
strongly supports the exclusion of attorneys, maintaining that
parents who have children with disabilities can be trained to
be effective representatives for other parents. Since these
advocates are also consumers of services, they are genuinely
interested in ensuring that services are of the highest
possible quality for all children. Ohio also has a strong
parent advocacy system. Under the direction of the state
education agency and the Parent Training and Information
Center (PTI), advocates receive extensive and continuing
training in mediation and the provisions of IDEA. They assist
parents prior to mediation by helping them define the issues
in dispute and develop reasonable expectations from the school
district. The statewide Parent Training Coordinator for the
Ohio PTI, Ohio Coalition for the Education of Children with
Disabilities (OCECD), emphasizes the importance of focusing
parent advocates on the concerns of the families they
represent.87 The coordinator explains that some
parent advocates are unable to separate their feelings from
their own experience from the interests of their clients. In
such situations, the coordinator assists the advocate,
removing her from this role if necessary.


In
addition to using parent advocates, Ohio provides proactive
assistance to families through parent mentors. Mentors serve
as sources of information and support to assist families and
school districts in determining appropriate expectations for
the delivery of special education services. With its system of
parent mentors, parent advocates, and mediators, Ohio has held
few due process hearings, and mediation is generally
considered successful by stakeholders.


Parent
advocates, as consumers of special education services, share a
genuine interest in guaranteeing that services are of the
highest possible quality for all children. There are critics
of parent advocates, however, who question whether these
individuals are engaging in the unauthorized practice of
law.88



Part 2

                        author

Edward Feinberg

Edward Feinberg, Ph.D., is a veteran program administrator, psychologist, writer, and trainer on a variety of issues related to Parts C and B of IDEA. He is the Program Manager of the Anne Arundel County, Maryland Infants and Toddlers Program. In this capacity he oversees all aspects of a comprehensive… MORE >

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