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A Beginner’s Guide to the Special Education Legal Process: Understanding the Mediation Process

 

 

This article is a summary of show #6, Understanding the Mediation Process, from the podcast Special Education Matters, with host Michael Boll and CSNLG lead attorney Richard Isaacs. This podcast can be found here. This conversation focuses on mediation: what it is, what happens with it, what it feels like, and how a parent should respond when it is time to do the mediation.

What is mediation?

  • Mediation is an opportunity for the district administrator (in many cases the special-education director) to sit down with a family and negotiate in the presence of a mediator.
  • Typically, the mediator is an administrative law judge (ALJ).
  • Mediation usually takes place at the school district office.

When does it happen?

  • The parties involved will mutually agree upon a mediation date.
  • Mediation typically occurs shortly before hearing (30-60 days); it is often the last official opportunity to sit down with the school district prior to going to trial.

What is mediation like?

  • Mediation is low pressure. It happens at the school district office for the most part.
  • Usually mediation starts at 9:30 AM.
  • In the first half hour, the mediator explains the process and its benefits.
  • Sometimes the parties will meet together first to review where things are with the settlement, then they will be separated into different rooms.
  • The mediator will then go back and forth between the rooms, with offers and counter-offers between the parties.
  • Typically, a good mediator will encourage and push both parties to reach a settlement.
  • Mediation is a slow process, with many steps and does not always lead to settlement.

Should an attorney be involved?

  • The purpose of mediation is to reach a settlement agreement; an attorney is important as they need to look at the language of the settlement agreement in order to make sure that the family is protected.

Why is mediation effective?

  • If a case is not settled, nothing is guaranteed going into hearing.
  • In the case of mediation, if a settlement is reached you know what you are going to get in terms of placement, services, or reimbursement.
    • For example, if there is an agreement of reimbursement for services that amount is guaranteed.
    • If there is an agreement for additional speech or occupational therapy hours, those hours are guaranteed.
  • However, if no settlement occurs, the case moves toward hearing.
  • Hearing does not guarantee that the judge will rule in a family’s favor.
  • In mediation, resolutions can be creative. Services can be agreed upon that would never be granted by the court.
    • For example, while a Judge may  not order a district to pay for a specific private school, at mediation the parties may be able to agree on the school via a settlement agreement thus guaranteeing the student’s placement.  

Why might mediation be unsuccessful?

  • In many mediations, a finalized agreement is not reached. This does not necessarily mean mediation is not effective, as the discussions allow for increased understanding between parties and often will lead to an eventual settlement.
  • If mediation is not successful, a settlement is often reached shortly before hearing.
  • Mediation may also be unsuitable if there is a low quality mediator. Whereas excellent mediators will encourage parties to reach settlements, ineffective mediators will not necessarily push as hard.

Is mediation still a worthwhile effort?

  • Yes. Although mediation will not always lead to a settlement, it enables better understanding between parties.

This summary is part of our complete Beginner’s Guide to the Special Education Legal Process.

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A Beginner’s Guide to the Special Education Legal Process #6: Understanding the Mediation Process

Michael Boll, father to a son with autism and CSNLG team member, talks with attorney Richard Isaacs about mediation. Something that is required by the California Office of Administrative Hearing prior to a full hearing.

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A Beginner’s Guide to the Special Education Legal Process: When a School District Sues a Family

 

 

This is a summary of the fifth edition of CSNLG’s podcast Special Education Matters. In this podcast, our host Michael Boll and lead attorney Richard Isaacs discuss what families should do if the school district files a lawsuit against the family. The podcast can be found here.

There are two particular instances where a district might sue a family

1. A parent requests an an IEE (Independent Educational Evaluation) to be funded by the school district and the district chooses to defend their assessment

  • In this scenario, the law requires that they file a lawsuit to defend their assessment.
  • At this point, the parent may choose to drop the request for funding, and the lawsuit would go away.

2. The district files a lawsuit to enforce their IEP offer if a parent doesn’t consent to their IEP.

  • For example, there are a lot of families that will disagree with the district’s offer and they’ll push for funding for a private school. The district can then sue to deny your request for them to fund a private school.
  • This typically comes into play when the family files suit for reimbursement of a placement. The district will then turn around and sue the family to defend its placement in response.

Timeframes are different if a district initiates the suit

The time frame is much shorter.

  • When the family files suit: a 30 day resolution period starts, the court has to have a decision within 45 days, so there’s about 75 days for things to work out.
  • When the district files: there is no resolution period, so a hearing has to be held within 45 days.

How do we deal with either of these situations?

It is a scary thing when the district is filing suit against a family. But again, this doesn’t change much – we can usually work it out.

  • Sometimes we countersue, and we join the two cases together and we get new dates set. If the district is going to file, we are also going to file.
  • The OAH (Office of Administrative Hearings) makes the student’s case the controlling case for date purposes and scheduling purposes.

Is it realistic of you to represent yourself in the lawsuit?

  • There are plenty of decisions where parents will go alone and win. The judge is sometimes more lenient towards parents without representation.
  • However, we would never advise a client to go at it alone, although some parents have been quite successful doing that.

To conclude, if you find out that the district filed a lawsuit against you, what steps should you take?

  • Consult with an attorney.
  • There are many attorneys that are able to provide a quick, free consultation and point the family in the right direction.

This summary is part of our complete Beginner’s Guide to the Special Education Legal Process.

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A Beginner’s Guide to the Special Education Legal Process #5: When a School District Sues a Family

Michael Boll, father to a son with autism and CSNLG team member, talks with attorney Richard Isaacs about the scary thought of a district suing the family. It does happen and sometimes they feel compelled to do it.

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A Beginner’s Guide to the Special Education Legal Process: Deciding To File a Lawsuit

 

 

 

This article is a summary of the podcast, Deciding to File a Lawsuit from the podcast Special Education Matters, with host Michael Boll and CSNLG lead attorney Richard Isaacs. The podcast can be found here. This conversation focuses on what happens when a family may decide to file a due process complaint if they disagree with the districts offer of services.

What will happen after filing a due process complaint?

  • A Resolution Session within 15 days must be scheduled
  • Mediation may be scheduled
  • Trial/hearing if no resolution reached

What leads to the due process complaint?

  • After an IEP has been conducted there may be outstanding issues to resolve or services expected.
  • The family and the district cannot come to agreement on what is considered a FAPE (Free Appropriate Public Education)
  • Parents have paid for educational services and are requesting reimbursement.
  • If there is no agreement, a due process complaint is filed.

How does the resolution process begin?

  • Once the due process complaint is filed, a resolution session must be scheduled within 15 days by the school district.
  • There is a 30 day resolution period before the trial can begin. There are exceptions to this rule.

What happens in the resolution session?

  • In the resolution session, attorneys are encouraged not to attend.
  • If a family brings their attorney, the district can also bring their attorney, however, if the parent does not bring an attorney, the district cannot bring their attorney.
  • This provides an incentive for the district admin to discuss concerns and solutions with the parents and resolve the issues together.

Is this process helpful?

  • The resolution process may be useful, and a resolution can potentially be reached.
  • However, cases are rarely settled at the resolution session.
  • Usually, the resolution session  is not helpful. families t

What happens in the next step, mediation?

  • Mediation is a voluntary process, but is heavily encouraged.
  • Mediation has the benefit of having mediators; typically administrative law judges (ALJs).
  • The benefit here is the mediator understands the law and has experience in helping the parties reach a settlement.

Problems with mediation:

  • In the case of a poor mediator, where the ALJ may be inexperienced  or otherwise unsuitable, a successful mediation may not occur.
  • Another option is to skip mediation and sit down directly with the school district and the attorneys in a settlement conference. This is beneficial when the relationship between the family and district is strong.
  • The bottom line is: mediation can be a waste of time without the right mediator.
  • Currently, about 60% of mediation is a waste of time; it is ineffective, inefficient, and provides an unnecessary expense for families.
  • Clients will be advised differently on how to approach mediation under different circumstances.

Benefits of mediation:

  • Mediation, in the right conditions, can lead to resolutions with more creativity — resolutions that would otherwise not be granted at hearing.

What about trials or hearings?

  • Around 94 percent of due process complaints do not go to hearing. They may be settled or dismissed.
  • It is important to note that clients and the district may not necessarily be opposed in the sense that they are both working to help the student succeed, but may disagree on how to do so.
  • Sometimes, when this decision goes to a judge who is unfamiliar with the student in question, the solution may be unsuitable.
  • Thus, it is important try and  settle each case, rather than go to hearing. Hearing is the last option.

This summary is part of our complete Beginner’s Guide to the Special Education Legal Process.

 

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A Beginner’s Guide to the Special Education Legal Process #4 Deciding to File a Lawsuit

Michael Boll, father to a son with autism and CSNLG team member, talks with attorney Richard Isaacs about the choice to file a lawsuit.

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A Beginner’s Guide to the Special Education Legal Process: Finding Solutions

 

 

 

This is a summary of the third edition of CSNLG’s podcast series “A Beginner’s Guide to the Special Education”. In this podcast, our host Michael Boll and lead attorney Richard Isaacs discuss how a family should find solutions to their child’s special educational needs. The podcast can be found here.

What happens when the district disagrees with your IEP?

  • Oftentimes, once we have all the outside assessments that we need, we present them in an IEP meeting, the district has its data, and it has offered what it feels is appropriate, there’s still a disagreement with the district.
  • To us, this is just the beginning of the conversation and there is nothing to worry about.
  • Districts typically do not take risks in IEPs – they simply offer a basic level of services. However, parents can push harder for a better program.
  • This may be in the form of filing a due process complaint. This approach provides several opportunities to reach a resolution including a resolution meeting and mediation.  
  • Oftentimes we can get an appropriate program funded by the district, but it will be outside the IEP process.

FAPE and ‘basic floor of opportunity’

  • FAPE: the district’s obligation to provide a Free Appropriate Public Education.
    • “Appropriate” is what’s meaningful to each particular student in light of their own potential.
  • The district’s obligation is merely to provide  a ‘basic floor of opportunity’.
    • Our job is to get the district to provide much more than that basic floor of opportunity and get a much higher level of services.

Finding the Appropriate Placement

  • Oftentimes, districts never actually close the learning gap of students with special needs. Generic RSP (resource specialist program), SAI (Specialized Academic Instruction), or SDC (special day class) programs have limited outcomes at best.
    • For example, a student may be struggling academically so the district puts that  student in a special day class in fourth grade. For the next four or five years, they remain in the special day class and by the time they enter high school, the student is off diploma track
    • Conversely, we have had students graduate high school reading at a second/third grade level. After pushing for intensive intervention, we have gotten them beyond the 12th grade reading level after about six months.
  • Finding the appropriate solution is about identifying the specific programs (as suggested by outside assessments), and then pushing the district to provide them.
    • Often this is will happen outside the IEP, through a settlement agreement.

Do parents really need an attorney?

  • A good advocates can handle most cases  all the way up to the beginning of litigation.
  • Advocates are also typically less expensive than attorneys. However, advocate fees are not statutorily recoverable whereas legal fees often are. This means it may be cheaper to use an attorney throughout the whole process.
  • At IEP meetings, advocates shine because they often have a higher level of expertise – they know the resources of the school district better, know how to read and present assessments, and talk about goals.
  • The problem particularly with parents who go at it alone: the district will direct you towards outside assessors that they work with a lot, which often renders the recommendations meaningless and unusable.
  • Advocates or an attorney will direct the family to experts that can identify what’s going on with the student.
  • At that point, if the district says no, parents may want to contact an advocate or attorney to help with the next steps.

This summary is part of our complete Beginner’s Guide to the Special Education Legal Process.

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A Beginner’s Guide to the Special Education Legal Process #3: Finding Solutions

Michael Boll, father to a son with autism and CSNLG team member, talks with attorney Richard Isaacs about deciding on solutions for your child’s specific situation and then advocating for those solutions with the school district.

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A Beginner’s Guide to the Special Education Legal Process #2: Understanding Your Case

Michael Boll, father to a son with autism and CSNLG team member, talks with attorney Richard Isaacs about understanding your case through the file review process.

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A Beginner’s Guide to the Special Education Legal Process: Are We a Good Match for Each Other?

 

 

A Beginner’s Guide to the Special Education Legal Process

This blog is based on the first of a series of podcasts called Special Education Matters, featuring Michael and our lead attorney Richard Isaacs. Michael and Richard discuss the process that begins when a family decides to work with us. Some of this process is specific to CSNLG, but much of the information we share can be taken and applied to your own situation. We begin with the very first stage in the process, deciding to work together.

Stage 1: Deciding to Work Together

You must decide if you even want to work with and involve a law firm

  • The best way to do this is hold a conversation between us and your family to ensure everyone’s needs are met

How we enact this process at CSNLG

  1. We ask you to fill out an intake form for your information that’s on our website at CSNLG.com/intake
    1. We ask you a pretty detailed list of questions about your situation and about the situation for your son or daughter or guardian.
  2. That information is transferred to us and we work to set up a free consultation.
    1. This consultation does take a little bit of time
    2. During this time we learn whether we can help you, or if we should direct you to someone else
    3. It helps us gain an understanding of the case and helps us share with you the next steps for a typical family
    4. We try to get real information that you can use even if you don’t decide to work with us.
      1. For example, what the next steps might be and what the law says regarding your situation.
  3. We then, if you agree, send an agreement to you
    1. This agreement is called a Retention Agreement and it explains the nature of the relationship between you and CSNLG (us).out the
  4. Two additional forms are sent to you
    1. Authorization for representation
      1. Later sent to districts to inform them that you are being represented by a law firm
    2. Authorization to request records
      1. Allows us to request records from districts

This summary is part of our complete Beginner’s Guide to the Special Education Legal Process.

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