Resolving Special Resolving Special Education DisputesEducation Disputes

Scott F. JohnsonScott F. Johnson

About MeAbout Me

Professor of Law at Concord Law SchoolProfessor of Law at Concord Law School

Hearing Officer with NH Dept. of Hearing Officer with NH Dept. of EducationEducation

NHEdLaw, LLC NHEdLaw, LLC www.nhedlaw.comwww.nhedlaw.com

Education Law Resource Center Education Law Resource Center www.edlawrc.comwww.edlawrc.com

OverviewOverview

Talk about basic ways to resolve disputes Talk about basic ways to resolve disputes under IDEA under IDEA

Talk about some changes in IDEIATalk about some changes in IDEIA

Talk about some specific mediation Talk about some specific mediation approaches and ways to resolve disputesapproaches and ways to resolve disputes

Talk through a scenarioTalk through a scenario

This PowerPoint is available at This PowerPoint is available at www.nhedlaw.comwww.nhedlaw.com

IDEIAIDEIA

Will cover three ways to resolve disputes: Will cover three ways to resolve disputes: neutral evaluation, mediation, due neutral evaluation, mediation, due process/court.process/court.

Some changes to dispute resolution in Some changes to dispute resolution in IDEIAIDEIA

Mostly in the area relating to due process Mostly in the area relating to due process hearings in terms of process and notice.hearings in terms of process and notice.

Neutral evaluationNeutral evaluation

Opinion from hearing officer about strengths and Opinion from hearing officer about strengths and weaknessesweaknesses

Present limited evidence in writing and make Present limited evidence in writing and make arguments.arguments.

Hearing officer makes recommendation on how Hearing officer makes recommendation on how they would rule. Parties can accept or reject.they would rule. Parties can accept or reject.

Not bound if rejectNot bound if reject

Process is confidentialProcess is confidential

MediationMediation

Parties try to resolve differences with the Parties try to resolve differences with the help of a trained, neutral third partyhelp of a trained, neutral third party

ConfidentialConfidential

Provided at no cost to the partiesProvided at no cost to the parties

If agree, becomes binding, written If agree, becomes binding, written agreement that is enforceable in courtagreement that is enforceable in court

Different methods can be used to help Different methods can be used to help resolve disputes (discussed in detail in a resolve disputes (discussed in detail in a minute)minute)

IDEIAIDEIA

Now requires states to offer mediation at Now requires states to offer mediation at the outsetthe outset

Can request just mediation or mediation Can request just mediation or mediation and due processand due process

My state of NH has offered it for sometime My state of NH has offered it for sometime and schedules it when a hearing is and schedules it when a hearing is requestedrequested

Due processDue process

Adversarial proceedingAdversarial proceedingWitnesses, attorneys, hearing officerWitnesses, attorneys, hearing officerParties have certain rights defined by Parties have certain rights defined by statute in terms of presenting evidence, statute in terms of presenting evidence, cross-examining witnesses, establishing a cross-examining witnesses, establishing a record and appealing. record and appealing. Hearing officer makes a decisionHearing officer makes a decisionLoser can appeal to state or federal courtLoser can appeal to state or federal courtAttorney’s feesAttorney’s fees

IDEIAIDEIA

New law now requires the parties to have a New law now requires the parties to have a “resolution meeting” before going to hearing “resolution meeting” before going to hearing when parent requests due process.when parent requests due process.

Must happen in 15 days of request for hearingMust happen in 15 days of request for hearing

Like an IEP meeting, but a person with decision-Like an IEP meeting, but a person with decision-making authority to resolve the dispute must making authority to resolve the dispute must attendattend

Discuss the request for due process and school Discuss the request for due process and school is give chance to resolve the issuesis give chance to resolve the issues

IDEIAIDEIA

If agree, written settlement agreementIf agree, written settlement agreementBuyers remorse for 3 days – both sidesBuyers remorse for 3 days – both sidesHave 30 days from request for hearing to Have 30 days from request for hearing to resolveresolveIf can’t agree go to hearing or mediation/neutral If can’t agree go to hearing or mediation/neutral evaluationevaluationSchool attorneys cannot attend unless parent School attorneys cannot attend unless parent attorney attendsattorney attendsParties can waive the meeting requirement by Parties can waive the meeting requirement by agreement or substitute mediation for itagreement or substitute mediation for it

IDEIAIDEIA

Law requires parties to be more specific in Law requires parties to be more specific in their requests for due processtheir requests for due process

Can’t raise things that were not in the Can’t raise things that were not in the requestrequest

Other party can ask for more information if Other party can ask for more information if request not sufficient – sufficiency hearingsrequest not sufficient – sufficiency hearings

Idea is to put parties on notice of the issues Idea is to put parties on notice of the issues to be addressed at hearingto be addressed at hearing

MediationMediationGeneral ApproachesGeneral Approaches

Positional negotiationPositional negotiation

Develop a position and Develop a position and insist the other person insist the other person agree to it.agree to it.

Start at an extreme and Start at an extreme and work towards the middlework towards the middle

Start near actual position Start near actual position and hold until the other and hold until the other person comes close person comes close enough to itenough to it

Positional negotiationPositional negotiation

Involves strength and Involves strength and weaknesses of the weaknesses of the case.case.

Each side attacks the Each side attacks the other’s position and other’s position and case.case.

Threaten action if Threaten action if other person does not other person does not come to your position.come to your position.

General ApproachesGeneral Approaches

Problem Solving Problem Solving approach.approach.View things as a shared View things as a shared problem to be resolved by problem to be resolved by both sides.both sides.More work.More work.Can produce a better, Can produce a better, longer lasting outcome.longer lasting outcome.Worked in Camp David Worked in Camp David Peace Accords for peace Peace Accords for peace between Egypt and between Egypt and Israel.Israel.

Problem Solving ApproachProblem Solving Approach

7 Elements7 Elements1.1. Relationship between the partiesRelationship between the parties2.2. Communication between the partiesCommunication between the parties3.3. Each party’s Best Alternative to a Negotiated Each party’s Best Alternative to a Negotiated

Agreement (BATNA)Agreement (BATNA)4.4. Interests of the partiesInterests of the parties5.5. Creative optionsCreative options6.6. Standards of LegitimacyStandards of Legitimacy7.7. Commitment Commitment

RelationshipsRelationships

Perhaps the most Perhaps the most important partimportant part

Working on it has its Working on it has its own intrinsic value own intrinsic value and corollary benefitsand corollary benefits

Treat others with Treat others with respectrespect

Work on the Work on the relationshiprelationship

Common relationship buildersCommon relationship builders

Bring food and drinks to meetingsBring food and drinks to meetings

Be courteousBe courteous

Don’t retaliateDon’t retaliate

Don’t personalizeDon’t personalize

Don’t blameDon’t blame

Don’t yellDon’t yell

Express feelings but calmlyExpress feelings but calmly

Scott’s Crazy IdeasScott’s Crazy Ideas

Try to get to know the Try to get to know the person.person.

Meet outside of school Meet outside of school and do something and do something unrelated to special unrelated to special education.education.

Invite the other person to Invite the other person to do something with a do something with a project, school committee project, school committee or outside of school group or outside of school group or committee.or committee.

CommunicationCommunication

All participants have All participants have to really listen.to really listen.

Active listeningActive listening

Acknowledge things Acknowledge things you agree withyou agree with

Clarify and confirm Clarify and confirm what speaker saidwhat speaker said

Empathize Empathize

BATNABATNA

Best Alternative to a Negotiated Best Alternative to a Negotiated Agreement.Agreement.

What you could obtain without an What you could obtain without an agreement from the other person.agreement from the other person.

Figure out the BATNA of others that are Figure out the BATNA of others that are involved.involved.

Both sides want to work to an agreement Both sides want to work to an agreement that is better then their BATNA.that is better then their BATNA.

InterestsInterests

Have to get to the Have to get to the underlying concerns.underlying concerns.

What the person What the person “really wants.”“really wants.”

Have to figure it out Have to figure it out for all involved.for all involved.

Not always the Not always the specific solution on specific solution on the table.the table.

That might just be the That might just be the position.position.

For example, an out of district placement could be an interest in ensuring a child reads.

Creative SolutionsCreative Solutions

Not always obvious at firstNot always obvious at first

BrainstormBrainstorm Don’t evaluateDon’t evaluate Don’t attach to a suggestion to earlyDon’t attach to a suggestion to early

Talk through possible solutions with pros Talk through possible solutions with pros and consand cons

Look for the solution that is a mutual gain Look for the solution that is a mutual gain for all involved.for all involved.

LegitimacyLegitimacy

Interests and options must be legitimate.Interests and options must be legitimate.

Something the system and process can provideSomething the system and process can provide

Bounds of legitimacy depend on the situation.Bounds of legitimacy depend on the situation.

With special education some of those bounds With special education some of those bounds are legal ones.are legal ones.

Others are fairness, reasonableness and the Others are fairness, reasonableness and the interests of the parties within their legal and interests of the parties within their legal and ethical boundaries.ethical boundaries.

CommitmentCommitment

Occurs at the endOccurs at the end

Articulate precisely Articulate precisely what each person is what each person is committing to.committing to.

Works well with Works well with settlement agreement settlement agreement process.process.

ResourcesResources

NH Special Education Law Manual: A Guide for Parents, NH Special Education Law Manual: A Guide for Parents, Educators & Professionals, NHEdLaw, Educators & Professionals, NHEdLaw, www.nhedlaw.comHarvard Law School Project on Negotiation Harvard Law School Project on Negotiation www.pon.harvard.eduNational Center on Dispute Resolution. National Center on Dispute Resolution. www.directionservice.org/cadre/indexdispres.cfmwww.directionservice.org/cadre/indexdispres.cfmThe Problem Solving Lawyer, The Problem Solving Lawyer, www.harborhouselaw.com/articles/problemsolve.mpalmer.htmwww.harborhouselaw.com/articles/problemsolve.mpalmer.htmNew Hampshire Dept. of Education Dispute Resolution. New Hampshire Dept. of Education Dispute Resolution. www.ed.state.nh.us/education/laws/SpecialEducationandDueProceswww.ed.state.nh.us/education/laws/SpecialEducationandDueProcessHearingsandAlternativeDisputeResolution.htmsHearingsandAlternativeDisputeResolution.htmOffice of Special Education Programs Questions and Answers on Office of Special Education Programs Questions and Answers on Special Education Mediation. Special Education Mediation. www.directionservice.org/cadre/vet_QAonmediation.cfmwww.directionservice.org/cadre/vet_QAonmediation.cfmNHEdLaw, Other Helpful Resources page. NHEdLaw, Other Helpful Resources page. www.nhedlaw.com/helpful.htmwww.nhedlaw.com/helpful.htm