Mediation in Special Education Law: The Necessity for Attorney Representation

By Zankich, Morgan N. | Dispute Resolution Journal, August 1, 2015 | Go to article overview

Mediation in Special Education Law: The Necessity for Attorney Representation


Zankich, Morgan N., Dispute Resolution Journal


It is not uncommon as a special education lawyer to never, for the purposes of education law, go to trial. This is because special education law operates primarily through resolution sessions and mediation-and with a settlement rate of approximately 96% before trial, perhaps it has touched on a system of far more efficiency than the traditional litigation model.1 Lawyers who practice through a particular business model do not even require parents of special needs children (the petitioners) to pay for their services-attorney fees are covered by the settlement, and paid for by the school district.

And the benefits are tremendous.

The Special Education Model reflects favorably on their slightly modified method of mediation as effective in achieving conflict resolution. Petitioners who cannot afford the devastating cost of a lawsuit are still able to see to it that their children are properly cared for while they and the school district both also encourage hasty resolution-which, in acknowledgement of the accelerated rate of early brain and behavioral development, can be imperative when cases revolve around a child's education.

Additionally, in resolution sessions and in mediation, rarely does the school fight that they aren't doing what they are accused of, and much of the gain revolves around future accommodation. The cost of proceeding to a due process trial (the concluding litigative step of conflict resolution in Special Education Law) is financially burdensome on school districts, with one state reporting an average cost of $40,000.2 Accordingly, school districts are very motivated to settle, and there is very little risk on the behalf of the accusers-they already win, it is just a matter of how much.

Mediation is the most frequently recommended form of dispute resolution used in education conflicts, and "legislative history of IDEA [Individuals with Disabilities Education Act] manifests a clear congressional intent that mediation become the primary, albeit not the exclusive, process for resolving disputes arising under IDEA."3 4 A 2004 amendment established that under the IDEA, mediation agreements are legally binding and enforceable in state and federal courts.5 The system is set up so that parents do not necessarily need a lawyer to guide them through the process, and there is controversy over whether lawyers can actually act more as a hindrance in the good-faith, corroborative atmosphere that mediation necessitates. However, in a process where one of the affected parties suffers the brunt of a gross discrepancy of power, a lawyer's influence is imperative in deterring unfair circumstances from impacting the welfare of a child.

The setup operates thusly:

The Federal Government places numerous obligations on school districts with regard to special education services. They have the obligation to identify and assess the students. They must provide appropriate services in order for the student to access their education including language and speech, occupational therapy (fine and gross motor skills), vision therapy, counselling, and social/behavioral services. Put simply, if you are designated a special need student and you have trouble doing something at school, the school district must provide services to assist you. Services continue from the age of three until the age of twenty-two. Circumstances permitting, these services often aim to formulate vocational and functional skills needed to live life independently after the special needs individual reaches twenty-two years of age.6

The Federal Government also requires that the school designate yearly goals for the child to meet and requires that the student make "adequate progress."7

Parents of special needs children attend Individual Education Program (IEP) meetings at least once a year to keep them up to speed on their child's placement, services, goals and progress. The involved parties include the parents, teachers, Special Education Director and the service providers (psychologist, speech service provider, etc. …

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