About Mediation
Special Education Mediation is a voluntary
and confidential dispute resolution process available at no cost through the
BSEA. When school personnel and parents disagree about the educational needs of
a student with disabilities, either party may request mediation.
In mediation, an impartial mediator helps
parents and school staff clarify the issues and underlying concerns, explore
interests, discuss options and collaborate to reach mutually satisfying
agreements that address the needs of the student. The mediator does not decide
how to resolve the dispute. When the parties resolve all or some of the issues,
they work together with the mediator to put their agreement(s) in writing.
This informal, collaborative
problem-solving process encourages mutual respect, promotes communication and
often provides the basis for positive working relationships between parents and
school staff.
For more information about mediation or to
receive the name and telephone number of the mediator assigned to your region,
contact the BSEA Coordinator of Mediation at (781) 338-6443
The Mediation Process
The mediation session is a meeting that is
held between parents and educators who may differ in their views on what
services, programs, placement, etc. should be provided a particular student.
The mediator guides the process but does not decide the outcome. The mediation
takes place in the student's school district as soon as a mutually convenient
date and time can be scheduled. A mediation session may last from 2 hours to a
day. Occasionally, multiple sessions are needed, as agreed to by the parties.
The mediation session is comprised of several distinct stages:
Stage I: Preliminary Stage
As participants arrive, the mediator
typically introduces him/herself and sometimes indicates where the participants
are to sit. Once everyone is seated, the mediator asks all participants to
introduce themselves by name and their connection to the student.
The mediator strives to establish a
climate conducive to joint decision making. The mediator reviews the purpose of
mediation and the procedures that will be utilized during the session. This
review typically includes:
- Brief
discussion of the Agreement to Mediate Form, ground rules and the
confidentiality requirements for mediation;
- An explanation
of the mediator's role, which includes listening, questioning, and facilitating
discussions aimed at reaching viable alternatives, agreements, and solutions;
and
- A statement
indicating while information from the past is frequently helpful, the focus of
the discussion should be on the current and future needs in order to resolve
the dispute.
- In addition, the
mediator explains the use of recess and caucus during the mediation process.
A recess allows
participants a chance to consider what has occurred and what solutions might be
agreeable to them and offers a break in the proceedings.
A caucus refers
to a private meeting between the mediator and each of the parties. During these
private sessions the mediator has a chance to talk to each party alone. It can
be helpful to further determine the issues and positions of the parties and
what alternatives might be considered to the proposed plan. Parties may want to
share confidential information with the mediator. The information shared during
the private session is not revealed to the other party unless the mediator is
given permission to do so.
Stage II: Discussion
The mediator will give the parties the
opportunity to present their concerns During the discussion period, the
mediator will:
- Assist the
parties in participating equally in the discussion;
- Clarify and
summarize statements that may be misinterpreted or not understood;
- Provide
periodic summaries of the discussion;
- Call a recess
or caucus when appropriate;
- Assist in
exploring alternatives; and
- Encourage
full, active participation of the parties.
Stage III: Closure
If the parties have come to an agreement,
the mediator, working with the parties, verbally summarizes the agreement and
puts the agreement in writing.
The
agreement may:
- Indicate who
will be responsible for implementation;
- Specify the
time frames for implementation; and
- Indicate what
action is expected of each individual.
- The parties
then finalize the agreement by signing it. Copies are provided for all parties.
If the parties are not able to reach an
agreement, the mediator will discuss other options.
Preparing for Mediation
Before
you attend mediation, it may be helpful to:
- Make an
outline of your viewpoint of the dispute: What's involved? What are you in
disagreement about?
- Decide what
you want for the student and what you would be willing to propose.
- List the
solutions you would be willing to offer to settle the dispute. You may want to
list the most important one first, next important second, and so on.
- Check out your
viewpoint and ideas. Ask others (colleagues, friends, relatives) to react and
comment on your position, what you are seeking, proposed solutions, etc.
- While it is
not required, if you decide you need someone to assist you (attorney, advocate,
consultant, etc.), seek an advisor who will represent your interests.
- Think about
both short and long-term solutions.
- Negotiate with
the attitude that, in developing an agreement, it is frequently advisable to
start with a plan that might work (even though not your first choice) and then
later build on it or modify it as needed, rather than maintain a single
solution that is unacceptable to the other party.
- Recognize that
mediation requires the give-and-take of ideas and offers, before solutions are
agreed to and an agreement reached. Therefore, mediation can be a very
creative, spontaneous and dynamic process for the participants.
- Remember to
keep the focus on the student's needs.
- Be prepared to
explain to the mediator (and opposing party) what issues you'd like to address
during the mediation session.
How is mediation different from
a hearing?
There are several significant differences:
- Mediation is
voluntary; participation in a hearing is mandatory;
- Mediation is
more informal than a hearing;
- Mediation
usually takes several hours; a hearing can take from one to three days, or
more;
- Mediation does
not usually involve lawyers (although you have the right to have one with you,
if you choose); and
- Mediation
allows the parties to create their own agreement with the help of a mediator
rather than have a decision rendered by a hearing officer.
Why consider mediation?
Mediation offers an
informal, collaborative and effective way for parents and educators to resolve
their differences. Mediation has many benefits for parents, educators and
service providers, including:
- Families can
maintain an ongoing and positive relationship with the school system and
benefit from collaborating with educators or service providers in developing
their child's program.
- Conflicts that
arise out of misunderstandings or lack of shared information can be resolved
through mediation with mediators helping parents, educators and service
providers to communicate directly with one another.
- Special
education issues are complex and can best be solved by working together.
- Mediation
tends to be faster and is free or far less costly than due process hearings
and/or court proceedings.
- Mediation
results in agreements that participants find satisfactory and research shows
that people tend to follow the terms of their mediated agreements.
What
issues can be mediated?
Parents and educators
involved in the mediation decide together what issues they want to resolve in
mediation. Usually the issues discussed relate to the child's evaluation,
eligibility, IEP, programs or placement, discipline concerns, and/or
transition.
Mediation often helps
address communication and relationship issues that affect the working
relationship of parents and educators.
Who may
request mediation? When can you ask for it?
The student's parents,
legal guardian, educational surrogate parent, adult student (18 years or
older), the school district or public agency or an attorney or advocate
representing any of these people may request mediation.
Mediation may be requested
at any time a parent or an educator has an interest in resolving issues related
to a child's special education. Mediation may also be requested before or at
the same time as a due process hearing request.
What is
the role of the mediator?
The mediator's role is to
help the parents and educators use the process to understand each other's
perspectives more fully and to consider and develop possible solutions to the
dispute. The mediator does not make decisions. While the mediator remains
neutral and impartial throughout the process, s/he may generate suggestions and
alternatives for both parties to consider.
How are
mediators selected and what happens after they are selected?
Parents or educators may
request mediation by contacting the BSEA by telephone or in writing. The BSEA
will provide the name and telephone number of the mediator assigned to their
region. Parents or educators may also request a randomly assigned mediator by
contacting the coordinator of mediation, at (781) 338-6443 or via mail, c/o
BSEA,
The person requesting
mediation initiates the process by contacting the mediator. The mediator will
then call the other party to see if s/he is interested in participating.
After talking to the
parents and school district, the mediator determines a mutually available date,
time and location for mediation and communicates the determination to each
party.
How soon
is mediation scheduled?
Mediation is usually
scheduled within 30 calendar days after parents and educators agree to mediate.
Who
participates in the mediation session and may participants bring other persons
to the mediation session?
Yes. Parents and/or
educators may bring other persons who can assist the process (e.g. attorneys,
advocates or people who know the student and his/her needs and/or district
programs and staff). However, to keep the session informal and manageable, the
number of additional persons should be kept to a minimum.
The participation of older
students is welcomed and can be helpful in reaching agreements. Adult students
must participate unless a guardian or other representative attends in their
place.
If there is a disagreement
about who will participate, the mediator will work with the parties to decide
how the matter will be resolved.
It is important to be
informed about your rights. While you are not required to bring an advocate
and/or an attorney to the mediation session, it may be helpful to consult with
one as you prepare for mediation. Also, sometimes advocates and/or attorneys can
be helpful in assisting parties in developing solutions and options during the
mediation.
How long
is a mediation meeting?
In general, mediation can
take anywhere from 2-5 hours. Occasionally they may last as long as a full day.
The mediator and the parties may decide to schedule more than one session, if
needed.
What
happens if an agreement is reached / not reached?
The mediator, with the help
of the parties, puts the agreement in writing. The parties usually sign this
agreement before the mediation session is concluded. The mediation agreement is
not in force until it is signed by both the parent and a school representative.
All parties should receive
a copy of the written agreement.
If the parties are unable to
reach agreement, the participants may consider other dispute resolution
options. In some cases, another mediation session may be scheduled if the
mediator and the parties determine that progress may be achieved in another
session.
If I am
uncomfortable talking about my concerns in the joint session, can I ask for a
private meeting with the mediator?
Yes. Mediators may hold
private meetings or caucuses with the parties during mediation. Participants
can ask for a caucus with the mediator at any time. A caucus may be used when
people: (1) become upset about the mediation process; (2) experience
frustration in response to comments or actions of others; (3) have personal
feelings that affect their participation; or (4) want to share information or
an idea for resolution privately.
Does
mediation automatically delay or postpone a due process hearing?
No. Mediation generally
occurs before a hearing and does not delay the hearing. Parties must seek a
postponement of the hearing date from the hearing officer, in writing, if they
wish to mediate but cannot schedule the mediation before the scheduled hearing
date.
Are
discussions in mediation confidential?
Yes. Under federal law,
"discussions that occur during the mediation process shall be confidential
and may not be used as evidence in any subsequent due process hearings or civil
proceedings…"
Prior to the commencement
of the mediation session, the mediator verbally advises the parties about
mediation confidentiality. The mediator then asks the parties to sign an
Agreement to Mediate Form, which includes information about confidentiality
requirements for discussions held in mediation.
Mediation participants are
expected to maintain the confidentiality of discussions in mediation by
acknowledging and acting in accordance with the following:
- The mediator
and participants will not reveal to anyone, including a hearing officer or a
judge, the content of any discussions, which take place in the mediation;
- The parties
and their attorneys will not call the mediator or anyone associated with the
mediator as a witness in any legal proceeding concerning this dispute; and
- The parties
and their attorneys will not subpoena or demand any records, notes, or work
products of the mediator in any legal proceeding concerning this dispute.
- The only
written record of the mediation discussions is the signed mediation agreement,
which is generally attached to and amends the IEP.
All BSEA Mediators are
trained and skilled in mediation and knowledgeable about Special Education laws
& Regulations. Mediators do not have personal or professional interests
that would conflict with their objectivity in the mediations.
For more information about
mediation, contact the BSEA Coordinator of Mediation at (781) 338-6443. In
accordance with the Individuals with Disabilities Education Act (IDEA)
Amendments of 1997, the BSEA will provide a qualified and impartial mediator
for you. The BSEA will provide you with the name and telephone number of the
regional mediator or, upon request, a randomly assigned mediator.
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