Due Process Mediation... questions.

Discussion in 'Special Ed 101' started by jcox, May 15, 2009.

  1. jcox

    jcox New Member

    I informed my son's new educational advocate of all that is going on with the school and Elijah. I also sent her a scan of the proposed IEP ammendment that the school sent me regarding Elijah's field trips. I am not signing it and plan on rejecting it. They stated:
    "Elijah will be given the oppurtunity to participate in school wide events such as field trips, music performances, and field day. A decision will be made on a case to case basis as to which school event would be more suitable for Elijah. Elijah will have the opportunity to prepare for the events with the help of his aide. For events that happen away from school grounds one of his parents will need to accompany him given previous behavioral concerns."

    Along with this new situation, his extended time outs, the school's lack of his personal care needs, lack of understanding of his diagnoses, lack of individualized programming, and more and more issues are what is making her think it is in Elijah's best interest if we go to mediation with the DOE. I was wondering if anyone has ever gone to mediation? What is the process like? What can I expect?
  2. klmno

    klmno Active Member

    I haven't gone to mediation but did consult with a Special Education attny about due process and mediation because I was on the verge filing a couple of years ago. He discouraged both for most situations, oddly enough for a Special Education attny.

    His reasoning was this: due process is very expensive in time and money with a slim chance of winning and it can take over a year to get through the process and get the sd to actually set anything coming from it into action. This is because the sd will most likely appeal any decision in your favor. Attny fees are enormous.

    Mediation: he said that it is not legally binding and there is no one assigned to hold the sd accountable for implementing whatever is agreed upon. So, no matter what is written in the mediation agreement, no one is there to enforce it and if the sd doesn't implement it, you'd be right back where you started from. This left me feeling like it is worth less than the IEP itself and if I was having trouble getting the sd to implement that, I couldn't have confidence that they would back up the mediation agreement.

    This all may vary from state to state- I'm just giving you my experience. I would recommend a consult with a Special Education attny in your area. The one I saw recommended the following, which I did and it worked- at least it helped a whole lot.

    Start with a very professional looking, type-written, letter outlining your concerns and enclosing any attachments of proof of non-compliance with IDEA and your state regs. CC that Special Education attny at the bottom and be sure to put a comma after his/her name with Esq. after it. (If you have consulted an attny, you are allowed to do this even if you write the letter.) Also, consult with your state doe, parent education/advocacy center and your state's office of protection and advocacy. CC both of these agencies too. Then, make copies and send them, certified mail, to the principal at the school, the dept head for Special Education at the main sd office, the sd superintendent and your local rep on the school board. (Don't expect to get action from all these people.)

    In my case, I heard from the head of Special Education, who set up an IEP meeting with people from the central office in attendance. Their main concern is preventing attny involvement. They asked if I was goping to bring an attny- if the parent does, the sd will have their's in attendance also. I did not take the attny because I didn't want the IEP meeting to turn into a circus. The Special Education attny here told me that if attny's are present, it is usually a sign that due process is inevitable. Much to my surprise, the school did a major turn-around, although not perfect, following these steps. I believe that what it did was wake up the people in the central office and have them look into what the school was doing. Since the principal is the main authority at the school, it put pressure on her to make sure that the people in the school were enforcing what was written in the IEP and to make sure that what was written in the IEP were really viable solutions to try and not just pressured or manipulative agreements. The principal was at each IEP meeting after this.

    This process might not work in all situations, but it only cost me a few hundred in attny fees and could have been less but it was much less than due process or mediation and was effective. The Special Education attny told me this lets the sd know that I'm not going to settle for whatever they try to pull- that I'm a knowledgable parent and will hold the sd accountable and will pursue legal action if the sd doesn't do what are are required to, but that I am giving every opportunity for us to work together without legal action. Portraying the attitude to the school that I was trying to avoid mediation/due process and really just wanted to work out an effective IEP seemed to help the people at the sd to have a good attitude instead of becoming nasty.

    I hope that helps- good luck!!
    Last edited: May 17, 2009
  3. Martie

    Martie Moderator

    This is VERY good advice and I have nothing to add except to say that if DP looks inevitable, mediation is worth a try because the SD and SEA have to pay for it--you would have to pay your own att'y if you brought one.

    The law PREFERS but does not require that attorney's NOT be present at IEP meetings. My SD always brought theirs, and I always objected for the record but never brought an att'y to an IEP meeting. in my opinion, it is a waste of money IF you know your rights which all parents should in order to get Sp Ed to work right for their child.

    Good luck,

  4. Superpsy

    Superpsy New Member

    I always thought mediation was legally binding but like was said above there is no one to enforce/hold the school district accountable.
  5. klmno

    klmno Active Member

    It might vary from state to state
  6. Martie

    Martie Moderator

    Mediation is not binding; neither is a due process hearing for all practical purposes. That is why there is so much case law and therefore is why the Supreme Court has heard more Special Education cases than on any other single issues since the passage of 94-142 in 1975.