From PEATC Press Fall 1997
Mediation is a Voluntary Option
By Joanne Mauger
The Individuals with Disabilities Education Act Amendments of 1997 (P.L. 105-17) require States to offer mediation as a voluntary option to both parents and school systems as an initial step in resolving disputes. The mediation provision of IDEA went into effect when the President signed P.L. 105-17 on June 4, 1997. The intent of the law is for mediation to become the preferred way to resolve disputes. States using mediation have found that voluntary mediation leads to fewer conflicts and is less adversarial than due process and litigation.
The difference between a mediator and a hearing officer is that a mediator helps both sides reach a mutually agreeable settlement. In contrast, a hearing officer listens to both sides and makes a decision. Although in some cases due process may be the only means of resolution, overall mediation may help parents and school systems avoid the high financial and emotional costs often associated with due process and litigation. The hope is that both parents and school systems will choose mediation to work out their disagreements while keeping the childs needs their primary focus.
Sec. 615(e)(1) of the IDEA Amendments contains the following requirements for the mediation process
The law requires the States to maintain a list of qualified mediators who are knowledgeable in law and regulations governing special education and related services. An individual who serves as an impartial mediator may not be an employee of any local educational agency or State agency. It is not intended that all mediators be attorneys. The state bears the cost of mediation.
Mediation sessions are to be scheduled in a timely manner and held in a place that is convenient to the parties in the dispute. The agreement reached by the parties in the dispute is written in a mediation agreement. Discussions that occur during the mediation process are confidential and may not be used as evidence in any subsequent due process hearing or civil proceedings. To safeguard mediation discussions, parties may sign a confidentiality pledge prior to the start of the medication process. However, nothing in the law supercedes any parental access rights provided under the Family Educational Rights and Privacy Act of 1974.
When parent choose not to engage in mediation, the school system may require parents to meet with an impartial third party who will explain the benefits and encourage the use of mediation. The meeting must occur at a time and place convenient to the parents.
The Virginia Department of Education recently issued to local school systems: Mediation An Interim Process, Guidance Document, August 1997. The Department is in the process of developing the more formal mediation guidelines. There is already an established network of mediators in Virginia and the Department of Education will be developing provisions to train mediators in special education law and the regulations. The Virginia Department of Dispute Resolution Services, Office of State Supreme Court, maintains the Directory, a master list of all certified mediators in the state and the region/circuit where they practice. The Directory is on the Internet at http://www.courts.state.va.us/drs/mediators.htm. [Source: Individual with Disabilities in Education Act, Amendments of 1997.]
(c) PEATC 1997, All right reserved.
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