This is a transcript of 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.

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00:02 Michael Boll: You’re listening to Special Education Matters, a regular podcast about things that matter in special education. I’m your host, Michael Boll, and I am the proud father of an 18-year old boy with autism. I’m here to introduce a special series we are running on our podcast, Special Education Matters. Our lead attorney, Richard Isaacs, and others will be discussing the process and steps that happen when a parent decides to work with us. California Special Needs Law Group attorney, Richard Isaacs and myself, talk about what happens when a family does not agree with the school district’s offer and the process of filing a due process complaint. Here we go. Now as a parent, you’re maybe not getting what you want for your child, so it’s time to protect their educational rights, and that’s where you’re going to ask an attorney or an attorney’s going to suggest that a due process complaint is filed. And when that’s done, it triggers three different sorts of events. One can be a resolution, followed by mediation, and then a trial/hearing. Now, those things all have triggers and specifics within each. So let’s talk about all those as we walk through it. So the first thing is the resolution. What is that?

01:09 Richard Isaacs: So whenever a parent files a due process complaint, and the due process complaint is a legal lawsuit against the school district in violation of the IDE: the Individuals with Disability Education act. It’s a denial of FAPE. And once the IEP process has worked through, parents have presented information, the district has made its offer of services, its offer of FAPE, and there’s still a disagreement. The next step, and this is what we do primarily, is we file a due process complaint. We take all the data, all the information from our experts, and we’re willing to put that in front of a judge. The district will do the same things with its experts. Basically we turn it over to a third party or a judge. It’s an administrative law judge. It’s an administrative court, which is much less formal. Oftentimes, the hearings are held at the school district in a conference room, which is set up like a mock courtroom. Once we file the due process complaint with the Office of Administrative Hearings up in Sacramento, they’re going to send out a scheduling order and that scheduling order is going to have a hearing date on it. But also when we file the due process complaint, the school district has to schedule within 15 days a resolution session.

02:23 MB: Okay so let me stop you right there for a second… the hearing is going to be further down the road. These are things that actually happened prior to that like, look, can we work it out without having to go all the way to a hearing…

02:33 RI: That’s correct, and the intent of the resolution session, and why it’s built into the federal law is if the parent files a complaint against the school district, they want the school district in the parent to sit down together within 15 days. There’s actually a 30 day resolution period before the trial could happen, and they want the district to sit down with the parents to say, hey, can we work it out? Now the resolution session is interesting because attorneys are encouraged not to go. If the parent brings their attorney, the district can also bring its attorney, but if the parent chooses not to bring an attorney, the district cannot bring an attorney. The incentive really is to have, say, the district admin, like the special-ed director, sit down with the parents and say, what are your concerns? How do we fix this? It’s a frustrating process because parents who go to those alone who don’t have attorneys representing them: it may be useful and they usually reach a resolution or they can reach a resolution. When I see those resolutions, they’re not meaningful. I feel like a lot was left on the table. I’ve never in the ten years I’ve been doing this settled a case at the resolution session. To me it’s a waste of time. There is no point to have it because we filed a lawsuit: clearly it’s not working, clearly there’s a disagreement.

03:53 MB: But won’t the district sometimes, after you file a lawsuit and they know you’re serious, come in and say, okay, we’ll give you what you want, or we’ll give you 80% of what you want?

04:00 RI: Typically not at the resolution session, because the district is not invested at that point. A lot of times they won’t even bring in their outside counsel yet. They’ll try to work with it. Now I’m of the belief that I don’t like to surprise the district. So if we’re gonna file a due process complaint, I let them know that we’re gonna file a due process complaint to see if we can work it out in advance. I tell them before I spend the time drafting it, and if they still don’t come to the table, sometimes I’ll send them the drafted due process complaint before I file it to get them to understand our position. I’m always trying to work on an early resolution because that’s gonna be the benefit of everybody. The districts have an incentive to drag things out. The longer they drag things out — that’s why parents will end up at five, six IEP meetings in the year, that’s why they’ll drag the litigation process out — so the resolution session by statute is meant to just give the parties an opportunity to settle the case. It has to be scheduled within 15 days and held within 30 days. Now, there is a waiver option that both parties have to waive it, meaning that the district, and the parents have to agree. If the parents request to waive it, and the district wants to have it, you have to have it.

05:12 MB: It seems like your opinion or belief or understanding is that it’s better to expect really nothing useful out of a resolution — attend it maybe by a conference call or whatever, but just get it out of the way, knowing that it’s probably not gonna be helpful.

05:30 RI: Right, from our experience, it’s not, and I often have families go alone. I often just have them just go on the phone because it’s something we have to do and we send a settlement offer of what we want, so there’s no surprises and the district can make a response to, but we’re not gonna start negotiating at that early stage. Part of it too, is if the district hasn’t brought in legal counsel yet they don’t know their exposure, and it still amazes me how many districts really don’t understand the law. It is helpful for them to get the advice of their legal counsel because they’re gonna look at their exposure and they’re gonna look at the weaknesses, areas where they made mistakes. And I’ve had attorneys that represent districts tell me Rich, we made a mistake, and we’re gonna fix this and we can waive the resolution session. Oftentimes in those situations, we can just work out a settlement going back and forth with emails for the next two weeks until we get to the point to everybody is happy.

06:24 MB: I feel like we’ve covered the resolution and we should probably do a show, maybe just specifically on resolutions on mediations, etcetera. But we’re doing more of an overview. The next thing up is the mediation. So you’ve gone to a resolution, you’re not happy with it, what they’re offering. Again, you’re going in there not expecting what you want anyway. The next step up would be mediation. What is that about?

06:47 RI: So mediation is voluntary, unlike the resolution session, which is mandatory, unless mutually waived. Mediation is optional. It’s heavily encouraged. Most cases will settle and not go to due process. Mediation actually has the benefit of getting — typically they’re ALJs: administrative law judges — sometimes they’re just straight mediators, but the state will pay for mediators to sit down at the school district with the district and the parent and try to help facilitate a resolution. The benefit of a mediation on paper is you do get that mediator who should really understand the law responsibilities of the district. Often times mediation is successful based on the how good the mediator is. If we get a bad mediator sometimes we’ll not go to mediation. I’ll just work with outside counsel because they also have an incentive to settle the case. And at that point, we would rather just sit down at a settlement conference. No mediator, but let’s just sit down and talk and things out. That’s an option.

07:52 MB: What you’re saying is that you will know who the administrative law judge is just going to be ahead of time. You might think, oh, this person is terrible, and maybe the district agrees. And you guys say, hey, let’s just get together and work this out without the mediator.

08:06 RI: Right, exactly. I know it gets a little bit confusing and there’s so many little pieces that can change everything.

08:16 MB: These are strategies that you implement as you go along — as you see how the case unfolds.

08:21 RI: Right. The simple response is: there’s a resolution session, there’s a mediation, and if you can’t settle it in mediation, the next step is trial. The mediation can be very effective with the right mediator. Other times it can just be a complete waste of time and a lot of it goes into who the district hired as counsel. Does the district really wanna settle the case, or are they just gonna keep pushing and waste time? And right now, currently, I would say about sixty percent of mediation is a waste of time. I am not happy with mediation. I’m not happy with the results of mediation and the districts are just wasting our time and it’s not an effective use or an efficient use of our time or a good expense for the family to go to mediation if they’re just gonna waste our time. Depending on who the district or what district it is, who the mediator is, we advise the clients differently how to approach mediation.

09:09 MB: Okay, so at that level you don’t have to — you haven’t committed to going.

09:14 RI: Correct.

09:15 MB: So you can see the judge and say, ah forget it, let’s do a different round. And you’re saying sixty percent of the time is maybe a delay tactic or whatever and it’s just not helpful.

09:24 RI: Yeah, it’s really unfortunate; I’ve been doing this for ten years, and it wasn’t that way when I started. We really enjoyed going to mediation because we were getting such positive results. Mediation is hard in the sense where nobody gets what they want, but we’re able to resolve it, because the outcome of mediation is that it’s guaranteed — or I should say the outcome of settlement. You get a guaranteed something, so when you put it in front of a judge at a hearing, you have no idea what they’re gonna grant you. You may prevail in the legal issues that your child was tonight, of FAPE, but the remedy might be, just for lack of a better word, bogus. I read every decision that comes out and the remedies are just terrible and I’ll call the attorney who argued the case, and I’ll say, yeah, I know you didn’t go to hearing for seven hours of speech services. And they say, of course not. And that’s happened to us too. We’ve gone to hearing and gotten twenty hours of OT and the equivalent number of hours in say counseling, but that’s not what we wanted. That’s not what the student required. So it gets a little bit frustrating. Pushing hard at mediation and getting a settlement is beneficial because you’re guaranteed with whatever you get, you’re gonna… whatever you agree upon, you’re going to get. The district is in the same position. They’ll know exactly what they’re gonna be on the hook for.

10:34 MB: But if you go the judge, the judge’s decision is binding. Whatever the judge gives you, that’s what you get at the point.

10:40 RI: We can talk about that — yes. The benefit of mediation is that you can be very creative in resolution. We can get private placements that the court would never grant. We can get services that the court would never offer or order the district to provide. The benefit of mediation is we can really have that meeting of the mind, be solution oriented, and it can be a really good thing. We can do the same thing outside of mediation, and I would say probably more times than not, we’re working on settlements outside of mediation, and just going back and forth with the district’s counsel, and then talking to our clients, and the opposing counsel is doing the same thing with the district, and we’re just slowly etching towards the middle to a resolution. Putting it in the hands of a third party is really scary in a sense. You put it in the hands of a judge, they haven’t been involved in the case. Most judges have never been to an IEP meeting. They’re just looking at the facts and they’re applying it to the law — and families often lose. They may win the trial, but they lose in terms of the remedy.

11:50 MB: You say they may lose — in terms of the trial, they may prevail, you’re right, what the district is doing is wrong, but you’ll get two hours of speech therapy to remedy. It’s like, no, I don’t care about winning that part. I want ten hours or twenty hours of speech therapy.

12:04 RI: Well, right. And let’s say a family has spent $60,000 paying for a private placement, and then the court comes back and says, oh, that’s not appropriate. The district’s placement was appropriate. But hey, you went on these other issues and to hearing to recover the $60,000, not the seven hours of speech, and that’s where it can get a little hard for families to understand. They get frustrated. We leverage everything and we’re gonna push as hard as we can on the strongest issues, of course. But it’s always better, for the most part, if you can reach a resolution with the district at or before mediation.

12:37 MB: Yeah, so you’re saying on your own. But the threat of mediation then is an impetus for the district to make a movement that they wouldn’t normally make?

12:45 RI: You know, recently, the district have been, and I don’t know why they’re taking this position, I think it goes back to them trying to call out parents bluff. Are parents really gonna go to hearing… so a couple times this year, we’ve been really close. We had our evidence binders done, we prepped our witnesses, and the Sunday night before hearing and hearing that usually starts on a Tuesday, so the Sunday before hearing, I get an email or a call from opposing counsel and they drastically increase their offer of settlement, and then we can reach a settlement on Monday. I’ve gone to hearing for half a day, the first day of hearing, and at the lunch break, they came to me and gave us everything we requested four months before… And I feel like they’re just really pushing families because their benefit is… are they really gonna go to hearing? It’s about 150 hours to 200 hours, beginning a case to going to the conclusion of the hearing. It’s a ton of time put into it. And I think the district are just taking the approach of just pushing harder. So I’m not seeing mediation being as effective as it used to be.

13:48 MB: All right so what you’ve said is that generally ninety plus percent of cases are going to settle before they go to the third stage; we’re gonna talk about briefly here is the trial itself, the hearing itself, right?

13:59 RI: Right, which is a really good thing. I think people forget that often when they just focus in on the individual cases —- overall 94 percent of cases settle. That means for every due process complaint in California for special education, 94 percent are not going to hearing, which is a really good thing. Some of them are dismissed, some of them are settled, but they are not going to hearing. As an attorney working with the family and this school district who also has an incentive to help the child.. we’re not opposing each other. We just disagree on what’s appropriate. So oftentimes we have similar… we want the same thing, we wanna see the students be successful, so we can work with that and turning it over to a judge who doesn’t know the child at all — it doesn’t make sense. We should be able to work out the solution with the school district. Now, as a law firm, we’re not gonna go to hearing unless we have the absolute evidence to support whatever we’re requesting. We’re not going to bluff. We’re gonna be able to… we may not be able to go to hearing on every case because the family may not have the resources, but our data and our evidence is going to be strong enough to go to hearing. And I think that is why we end up settling cases right before hearing, because when the district looks at the case and they see how strong the parents evidence is — meaning they have the right experts involved, they have the right data showing lack of progress, they know that it’s going to be a tough uphill battle to win the hearing. And that is why is a firm we’ve only been to hearing in the last ten years, four times. We work really hard to settle the cases, and that’s the right way to do it. These cases shouldn’t go to hearing.

15:35 MB: Alright, I think we’ve covered a lot of stuff and we’ve run a little bit long here, so why don’t we stop at this point. In the next show we’ll pick up, we’ll talk about what if the district files a due process complaint against you as a parent, which was something that was new to me. I was like, what? They’re gonna sue me? So we’ll talk about that in the next episode. Thanks for listening to another edition of Special Education Matters. For more information, including show notes, head to our website, csnlg.com/listen. And if you like what you hear, please consider giving us a review on iTunes. Those reviews bring us lots of happiness. I’m your host, Michael Boll, and we will talk again soon!

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