Due Process Cases: What is Mediation All About?

Mediation is a voluntary alternative dispute resolution process in which an impartial third party ("mediator") helps the parties to resolve their dispute but does not and cannot impose a solution.

Mediation Under the IDEA:

States are required to "ensure that procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a complaint... to resolve such disputes through a mediation process." 20 U.S.C. section 1415(e)(1).

States must "ensure that the mediation process (i) is voluntary on the part of the parties; (ii) is not used to deny or delay a parent's right to a due process hearing...; (iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques." 20 U.S.C. section 1415(e)(2).

What to Expect:

A mediation session usually happens fairly shortly after the 30 day "resolution period" contemplated for in the IDEA, or in some states may even be available during that time period. Note that in some instances, parties may not have both a resolution session and a mediation. Mediation is voluntary, so the parties can decide not to attend / participate. Unless each side is clearly not going to attempt to reach an agreement, mediation is worth your time to attempt to reach a settlement.

At the start of the mediation, an effective mediator should describe the process to parents and their representatives. Typically, a mediator will let the parties know that mediation is confidential, and that what is discussed in mediation can't be put into evidence at a subsequent hearing. A mediator should also explain any rules for the process, explain whether all parties will remain in one room or "caucus" separately, and answer any questions.

Sometimes, it is helpful for the parties to give a brief statement that provides an overview of their position and of what they are seeking in a settlement agreement. This is both for the benefit of the mediator - who needs this information to effectively guide communication - and is for the other side - who needs to hear what your position is and how strong you are in it.

A mediator's role is essentially to help with the communications between the parties. While there are many theories of effective mediation techniques, in terms of whether the mediator is simply relaying information or is more involved in helping to brainstorm solutions, a good mediator will always be able to effectively communicate each party's position and offer to the other side.

Many special education disputes are resolved through mediation. Ideally, mediation also allows for the two sides to communicate and air their disputes so that parents and the district may have a chance in the future of a productive relationship.