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ACSA Every Child Counts Symposium

Understanding the Art and Science of Mediating Special Education Disputes

January 16, 2014

Presented by

Ricardo Silva, Esq.

and Beth Nishida

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Understanding the Art and Science of Mediating Special Education Disputes

ACSA Conference ~ Monterey California

Presented by:Ricardo Silva, Esq. and Beth Nishida

January 16, 2014

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Mediating Special Education Disputes

Beth Nishida

Special Education Director

Hacienda La Puente Unified School District

Ricardo Silva

Partner Lozano Smith

San Diego Office

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Overview

• IDEA and Resolution

• Defensibility

• FAPE (overview)

• Relationships

• Settlement

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IDEA and Resolution

“Parents and Schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways.”

20 U.S.C. § 1400(c)(8)

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IDEA and Resolution

2004 Amendments Added

• Early Resolution – Requires Parent Participation

“Congress has repeatedly amended the Act in order to reduce its administrative and litigation costs.”Schaffer v. Weast, 546 U.S. 49, 57(2005).

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Number of Filings -Fiscal Year 2012-2013

• Student 2,727

• District 467

• Total 3,194

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Outcomes – First Quarter

Total Cases Filed 911

Reasons for Closure• Decisions Issued 19• Settled at Resolution

Session 20• Settled at Mediation 360• Settled Outside Mediation

or Resolution Session 303• Withdrawn 110

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Prevailing Party Status –First Quarter

• Student Prevailed: 5

• District Prevailed: 7

• Split: 7

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FAPE and Defensibility

• FAPE should lead to a defensible program

• FAPE is always the GOAL!

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Reasons for settlement:

• Not Defensible

• Witnesses

• Costs

• Heat

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• Finality

• Certainty

• Minimize risk

• Reduce fees

• Avoid hearing

• Strategy

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• Defensible program

• Witnesses

• Costs

• Heat

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Taking stock of your case

What do you look for?

• Defensible

• Staff

– How will the staff handle a due process hearing?

– Will they make good witnesses?

– Are they all appropriately qualified or credentialed?

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When in Due Process

When you are in a due process hearing, how do you use the process to your advantage ?

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The Process

• Early Resolution Session

• Mediation (OAH)

• Private Mediation

• Hearing

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Strategies for Negotiating Special Education Disputes

• Prepare, prepare, prepare

• Cooperation: once in negotiations, the goal is joint-problem solving

• Identify barriers to cooperation

*Adapted from Getting Past No, by William Ury

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• Identify Barriers

–Reactions

–Emotions

–Positions

–Dissatisfaction

–Perception of Power


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• Breakthrough barriers

–Mile-high view

–Step to their side

–Reframe

–Build a golden bridge

–User power to educate


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Personal Relationships

• Parents want to feel that someone is listening to them

• Probability that they will give you an opportunity to resolve dispute before filing for due process, rather than being blind-sided

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Relationship Builders

• Listen

• Don’t react

• Don’t judge

• Partner

• Problem Solve

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Relationship Wreckers

• Failing to Listen

• Reacting

• Judgmental

• Predetermine or dictate outcome

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ADR and Relationships

• Relationships are critical

• Should be built before a dispute

• Also during the ADR process

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Important distinction

FAPE vs. Settlement offer:

At an IEP team meeting you DO NOT compromise your FAPE offer!

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Settlement, What is the benefit of your bargain?

• What do you get in exchange; are you buying peace?

• Don’t let it be stay-put: Ensure that services have an end-date and identify the replacement services

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Settlement is an opportunity

• Opportunity for data collection

• The data collected during the settlement period may support your argument why it is not FAPE

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Understanding the Settlement Agreement

• Implement: Make sure staff understand the relevant portions of a settlement agreement

• Inform: Make sure staff understand what you are trying to accomplish with the settlement

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Final Thoughts for Today

Ensure IEP offers FAPE

• Relationships are important

• Understand the process

• Understand the opportunity

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Please Note:

THE LEGAL STUFF

These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented, please contact [email protected] or call (559) 431-5600.

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• All rights reserved. No portion of this work may be copied, or sold or used for any commercial advantage or private gain, nor any derivative work prepared there from, without the express prior written permission of Lozano Smith through its Managing Partner. The Managing Partner of Lozano Smith hereby grants permission to any client of Lozano Smith to whom Lozano Smith provides a copy to use such copy intact and solely for the internal purposes of such client.

• © 2013 Lozano Smith

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