“Alternative” Dispute Resolution in Special Education Carrie Menkel-Meadow Chancellor’s Professor of Law, University of California Irvine March 22, 2017 Riverside, California

What is “A” DR and why we should do “it” Not “alternative” but “appropriate” What process fits—is “appropriate” for what kind of dispute? “fitting the forum to the fuss” Today– some history of where “A”DR came from and its history in Special Education proceedings Me- “founder” of ADR field in law, 1970s and 1980s and former “special ed” (Due Process IEP hearings)

King Solomon and the Baby: Was it Mediation, Adjudication or Arbitration?

Ancient Markets: Arbitration= decision by 3rd party in Ancient Markets

Trial by Ordeal (Medieval)

Or, Trial by Combat/Joust

To Trial by Jury and Evidence

Administrative Processes (e.g. IDEA hearings) Premised on “due process” fair hearings, present evidence of student needs, classifications, experts, school resources Representation or not? (who pays?) Battle of “experts” Adversarial culture- early years IDEA amendments- 2004- adding Mediation and Resolution sessions

Class Action and Aggregative Litigation

Premises of Litigation and Due Process Adversarial model= RIGHTS + HEARING = BINARY SOLUTION (winners and losers) Expertise- cross-examination= TRUTH Confrontational processes GOAL >>>>>Mind-set>>>>>Behavior>>>>Outcome WIN >>>>Adversarial……..COMPETITIVE>>>W/L = “Distributional” assumptions=scarce resources

From Trials to Mediation and ADR

Another/Better Way? GOAL>>>>>Mind-set>>>>>Behavior>>>>Outcome “Solve the problem” >>>>Integrative solutions Ask Questions Explore needs and interests (all sides, not just your own) Building understanding and Relationships/communication/help with “facilitated and creative solutions”

Not “win/win” Rare that all parties win– “better way” than if you don’t try mediation/negotiation/resolution Using different mind-sets (process)—curiosity, inquiry, learning rather than one way advocacy to achieve Different “creative Options” Connect the dots with four straight lines: Put your body through a single piece of paper “Expanding the pie”; thinking out of the box Different processes = different outcomes= both matter

Why mediative processes? Openness to hearing other people =learning Communication (inquiry not advocacy) Relationship building Exploring where “compromise” or “collaboration” are possible Multiple solutions, not demands What is possible? Doable? Requiring more resources? Rule changes? Practice changes, room for negotiation? Tension- fairness and equality vs. individual flexibility and “equity” Now high success rates in reorienting the parties toward more consensual outcomes and monitoring Contingent agreements (re-evaluation)

Preparing for Mediation and Resolution What is important to you? (school, parents, child, system?) many sided preparation (not only your own) Documents/evidence/arguments= data, experts (principles) [Preparing for Special Education Mediation and Resolution Sessions– The Advocacy Institute-Duke University Children’s Law Clinic (2009) Emotions, feelings, comparisons with others Ideas for solutions?- precedent and new ideas, sharing, communicating needs, what is permitted, what is required, what is prohibited; resources available= “open” to new ideas Knowing when mediation/resolution appropriate and when not? (right to DP hearing?)

The Future: More Hybrid Processes Resolution conferences-with and without third party facilitators and mediators Ombuds Mediation Med-Arb Arb-Med (move to mediation from DP hearing) Aggregate claims (class relief)  Budget Cuts= fewer resources for all AND newly announced legal standards Endrew case, 2016 {IEP reasonably calculated to enable a child to make progress in light of the child’s circumstances, with deference to school expertise and authorities} = likely more CONFLICT!

What’s Next? ODR

Resources CADRE (Center for Appropriate Dispute Resolution in Special Education) Fisher, Ury and Patton, Getting to Yes: Negotiating Agreement Without Giving In (3rd ed. 2011) Menkel-Meadow, Schneider, Love, Negotiation: Processes for Problem Solving (2nd ed. 2014) Menkel-Meadow, Love, Schneider, Mediation: Practice, Policy and Ethics ( 2nd ed. 2013) Daniel Shapiro, Negotiating the Non-Negotiable: How to Resolve Your Most Emotionally Charged Conflicts (2016)