“Who does this process serve?”

[Dollar$ and Sense]

This presentation will address the issues surrounding special education conflict resolution. The goal is to do the best we can for our children by lessening adversarial relationships, which will ultimately cut costs and save taxpayer dollars.

Confrontations between school districts and the parents of special education students have become an unfortunate part of our reality. Litigation, as a method to resolve the issues, does not serve the children, the parents, or the school.

The Fifth and Fourteenth Amendments to the U.S. Constitution guarantee the right to due process. When the Individuals with Disabilities Education Act, IDEA, was written in 1975, there was clear intent to offer safeguards that protected parental rights. Due process hearings provide that ultimate protection. At no time will this presentation attempt to minimize that right. Our issue is that it is not necessarily the best solution.

A study was released in May, 2003 by the U.S. Department of Education’s Special Education Expenditure Project. It was titled “What Are We Spending on Procedural Safeguards in Special Education, 1999-2000. This extensive analysis utilized a very large sample group to determine their conclusions. “Of the districts reporting on cost-effectiveness, an overwhelming majority of respondents (96 percent) reported that mediation is more cost effective than due process”. (1) By their very nature, due process hearings are time consuming, and adversarial. By definition, the intention of cross examination is to challenge each others credibility and competence. Valuable time is lost and educational opportunities are missed. The people we have chosen to direct our schools and the people who support them are spending too many hours in litigation. These valuable hours will never be recovered. How do we quantify that cost? How do we explain to our supportive taxpayers that program dollars are needed to fund the adversarial part of our very fine special education program? At what point are they going to get angry and stop supporting us? How do we recover from a taxpayer revolt?

Research indicates that mediation and early resolution is the best solution. “Reports from some states relate high rates of success in the resolution of disputes, significant cost savings from averted hearings, and anecdotal evidence of improved relationships between parents and school districts”.(2) Isn’t that our goal? In 2002, the coordinator of New Jersey’s dispute resolution group at the Office of Special Education Programs stated, “We know that the majority of the disputes are the result of a failure in communication between parents and districts.” We should be able to resolve that without ending up in a courtroom.

The 1997 Amendments to IDEA say that mediation must be offered in conjunction with the filing for a due process hearing. Congress has made it very clear. “It is the committee’s strong preference that mediation becomes the norm for resolving disputes under IDEA”. (2) It also says that the state must pay. We say that this is a problem because IDEA is not fully funded by the Federal Government. This is just rationalization. New Jersey does not make funding effective mediation programs a priority. No matter how little or how much money we have, the problem of conflict resolution exists. It hurts children, it hurts parents, it hurts school districts, and it burdens the property taxpayers.

The point is made in a report published by The Consortium for Appropriate Dispute Resolution in Special Education (CADRE). This report outlines early resolution strategies currently in use. The report states, “We all stand to benefit from replication of those practices that optimize problem solving and program development while preserving the critical relationship between parents and providers”. It is good business, it is good for children with special needs, and it is good for taxpayers. Any investment we make now to improve our systems will payback many times over.

While the intent of IDEA 97 is good, there are issues that inhibit true reform. The offer of mediation must be presented when a request for a due process hearing is initiated. At this point in time, most conflicts have already become adversarial. We should do it earlier, before it gets ugly. The assigned mediator must be a “qualified” mediator. There is no definition for a qualified mediator. Knowledge of law, good mediating skills, knowledge of special education requirements, and an understanding of the business of running a school district should be required. The rights of regular education children must be shown proper respect.

Across the country, the majority of states have come to realize that early resolution and mediation, conducted by qualified experts, saved time, saved money, saved relationships, and yielded results that better serve the children. The approaches we address were once called ‘alternative dispute resolutions’, or ‘ADR’. Now, across the United States, the use of collaborative negotiation, mediation, and many other settlement tools occur so frequently, these strategies are no longer considered alternate. ADR now means “appropriate dispute resolution.”

Why should there be an aversion to due process? More often than not, this method of resolution is adversarial, time consuming, and very expensive. While there is a role for attorneys, the amount of work hours and dollars spent on attorneys imposes hardships on school districts and therefore, property taxpayers. We are talking about cutting the costs of public education.

In September, 2003, a report was produced by the United States General Accounting Office. They titled their report, “Numbers of Formal Disputes are Generally Low and States Are Using Mediation and Other Strategies to Resolve Conflicts”. They found that the greatest number of due process hearings occurred in just six places; California, Maryland, New York, Pennsylvania, The District of Columbia, and New Jersey. (3) Nearly 80% of all hearings were held in these locations.

A study done by a national organization of Special Service Directors offered the following insight: “A significant relationship exists between median household incomes and the number of disputes”. (4) Households with higher incomes were more likely to seek resolution through due process. It is done this way because they can afford to gamble on recovering their legal costs.

IDEA amendments in 1985 added to the rules of due process. The court must award “reasonable” reimbursement of legal fees to the prevailing party. (This does not apply if the school district is the prevailing party!) The definition of “reasonable” includes the qualifying words “prevailing rates in the community”(5) This qualifier, thought well intended, requires a Judge to challenge the fee structure and work ethics of attorneys and this is unlikely to occur. The result of this, particularly in districts where due process tends to decide in the favor of parents, is the legal costs are transferred to the school district and that means the taxpayer.

The U. S. General Accounting Office report offered a wide range of alternatives gathered during visits to a variety of states. Consistency throughout all programs was the call for early resolution without adversarial conflict. Studies of this approach show that there are currently in place many programs in many formats. There is much room to find suitable compromise. For example, Iowa has a program called “Parent - Educator Connection”. The design is specifically intended to encourage resolution at the earliest possible point. The program’s staff is trained in conflict resolution, not in the fine points of law. They sit in on meetings at the very beginning of a parent/district relationship. When called upon, they offer solutions to the conflicts. In Ohio, a parent mentor program hires the parents of students with disabilities to provide support and training for parents as well as school districts. Vermont might utilize an “Ombudsperson”. This individual is a well schooled and neutral third party who listens, investigates, and offers a practical solution. Wisconsin calls upon a “Stakeholders Council”. This council consists of school district representatives, parents, parent advocates, and attorneys. They attend annual training sessions to stay current and to refine their conflict resolution system. When a complaint is filed in Arizona, an “Early Resolution Specialist” is assigned. This specialist is given seven days to work out a deal between parents and a school district. The resultant deal becomes a legal obligation to the school district.


In New Jersey, The Department of Education produced a paper titled “Parental Rights in Special Education”. When my study of this issue began in 2004, parents got to see the July, 2002 version. It was downloadable, for easy access. The first topic of discussion dealt with initial evaluations. One section addresses consent. What should parents do if they do not agree? Right there, at the very beginning of a relationship that might last for 18 years, parents are told ’take it to court’. Every area with the exception of the provision of services, points immediately to a due process resolution. It is not until the twelfth page of this twenty-two page report that alternate methods of resolution are mentioned. We now have the revised version, called "Pocket PRISE". At best, it is very difficult to read due to the very tiny print. We have learned enough to mention mediation frequently, but as you read on you see every reference points to due process and Administrative Law Judges. In fact, on the Quick Reference For Mediation – Due Process information sheet, it specifically says, "Parents can indicate on the request for a due process hearing that they would like mediation instead of a resolution session." The resolution session is required if you file for a due process hearing. The New Jersey D.O.E. Office of Special Education Programs offers a good explanation of the values of mediation. It states, “OSEP encourages mediation as a highly successful means to resolve such disputes without the need for litigation.” However, unless someone specifically looks for mediation as the preferred method of resolution, it is not likely to occur. New Jersey might mention mediation, but we surely do not encourage it as a favored means of resolve.


The state of Michigan has a network of mediation centers that address the entire range of disputes, including civil actions, labor disputes, and special education conflicts. Within these centers are “experts”, well schooled in their respective fields. Because the network already exists, the added cost for experts in the special education field is easily covered by the dollars that are received through IDEA. In addition, learning about their process was easier than with most states. I inquired of the Michigan State Court Administrative office. Shortly after, I received a short video and a glossy brochure. They actively promote their services. On the front page of the brochure this is made clear. “…providing parents and schools with Special Education Dispute Resolution services FREE of charge in every county throughout Michigan.” Inside the brochure they answered it all and said it all. It was clear, concise, and reader friendly. On their website I found the following statement. "Mediation at a CDRP (Community Dispute Resolution Program) center is either free or at low cost. It can usually begin within two weeks of contacting a center. A typical mediation session takes about two hours. Parties mediating disputes typically reach agreement in 8 out of 10 cases; by the same percentage, parties keep their agreements. These resolution rates, consistent since the programs inception in 1990, demonstrate that the collaborative environment is an effective alternative to the adversarial courtroom environment."


There are cynics that are now thinking that we do not live in Michigan, and this is not Wisconsin, this is the New Jersey. Clearly you are correct, and equally clear is that they do a better job with conflict resolution. Michigan's program might not be the solution for New Jersey, but it surely it is many steps in the right direction.

None of these alternative systems look to remove the attorneys from the process but they do look to minimize their roles. In the minds of parents, attorneys affect a balance between them and the district. Attorneys can help prevent decisions made in anger or frustration. Parents also feel that they are given greater respect when they are represented by counsel.

There is a real need for this to be accomplished. We have accepted the challenge to cut the cost of public education but we haven’t done all that we can. We must lessen the adversity for the benefit of regular education as well as special education students. We need to be aware that taxpayer’s patience, waiting for reform, has limits. We also need to recognize that this can be done.

The majority of other states have found less expensive solutions through the timely use of facilitators, mediators, and mediating organizations. We choose to depend on Administrative Law Judges and lawyers. These Judges and lawyers are very educated in the details of law, but do they have an understanding of the needs of a special education child? Do they have a real grasp on what is required in the business of delivering a public education? Our Judges are taught to learn the law, research the precedents, and apply the laws as they have proved applicable in previous experiences. The parallels that exist from case to case provide for consistency in these decisions. Special education conflicts have no parallels. Every family, every child, and every district is different. We are asking Judges to do what they are not trained to provide. How can we expect an appropriate decision that best serves the child, the parents, and the district? Who does this process serve?

The fall back of due process is always an option, but we can’t afford for it to be the first and most used option. We need to look at applicable attorney fees and who is to pay for them. Knowing that parents can recover fees through the due process route, but not through the mediation route, doesn’t encourage use of “appropriate dispute resolutions”.

In high schools across the country, we teach our children about the importance of conflict resolution. Many of us offer peer mediation programs. Why don’t we learn from our own schools?