Resolving Education Disputes Scott F. Johnson

About Me Professor of Law at Concord Law School Hearing Officer with NH Dept. of Education NHEdLaw, LLC Education Law Resource Center

Overview Talk primarily about basic ways to resolve disputes under IDEA Talk about some changes in IDEIA Tips for trying a case Talk about some specific mediation approaches and ways to resolve disputes This PowerPoint is available at

IDEIA Will cover three ways to resolve disputes: neutral evaluation, mediation, due process/court. Some changes to dispute resolution in IDEIA Mostly in the area relating to due process hearings in terms of process and notice.

Neutral evaluation Opinion from hearing officer about strengths and weaknesses Present limited evidence in writing and make arguments. Hearing officer makes recommendation on how they would rule. Parties can accept or reject. Not bound if reject Process is confidential

Mediation Parties try to resolve differences with the help of a trained, neutral third party Confidential Provided at no cost to the parties If agree, becomes binding, written agreement that is enforceable in court Different methods can be used to help resolve disputes (discussed in detail in a minute)

IDEIA Now requires states to offer mediation at the outset Can request just mediation or mediation and due process My state of NH has offered it for sometime and schedules it when a hearing is requested

Due process Adversarial proceeding Witnesses, attorneys, hearing officer Parties have certain rights defined by statute in terms of presenting evidence, cross-examining witnesses, establishing a record and appealing. Hearing officer makes a decision Loser can appeal to state or federal court Attorney’s fees

IDEIA New law now requires the parties to have a “resolution meeting” before going to hearing when parent requests due process. Must happen in 15 days of request for hearing. Like an IEP meeting, but a person with decision- making authority to resolve the dispute must attend. Discuss the request for due process and school is given a chance to resolve the issues.

IDEIA If agree, written settlement agreement Buyers remorse for 3 days – both sides School attorneys cannot attend unless parent attorney attends Parties can waive the meeting requirement by agreement or substitute mediation for it If can’t agree go to hearing or mediation/neutral evaluation

IDEIA Law requires parties to be more specific in their requests for due process Can’t raise things that were not in the request Other party can ask for more information if request not sufficient – sufficiency hearings Idea is to put parties on notice of the issues to be addressed at hearing

Tips for Trying a Case - Hearing Officer Perspective Tip #1 Know the Substantive Law Tip #2 Know the Process Tip #3 Figure Out The Exhibits And Witnesses That You Will Actually Use Tip #4 Choose Your Witnesses Carefully

Tips for trying a case Tip #5 Resolve Your Discovery Disputes Without Asking the Hearing Officer to do so Tip #6 Tell A Story, But Make Sure It Is A Relevant One Tip #7 Know Your Hearing Officer Tip #8 Listen to the Hearing Officer Tip #9 Be Nice

Mediation Approaches Positional negotiation Develop a position and insist the other person agree to it. Start at an extreme and work towards the middle Start near actual position and hold until the other person comes close enough to it

Positional negotiation Involves strength and weaknesses of the case. Each side attacks the other’s position and case. Threaten action if other person does not come to your position.

Mediation Approaches View things as a shared problem to be resolved by both sides. More work. Can produce a better, longer lasting outcome. Problem Solving Approach

Seven Elements 1.Relationship between the parties 2.Communication between the parties 3.Each party’s Best Alternative to a Negotiated Agreement (BATNA) 4.Interests of the parties 5.Creative options 6.Standards of Legitimacy 7.Commitment

Relationships Perhaps the most important part Working on it has its own intrinsic value and corollary benefits Treat others with respect Work on the relationship

Common relationship builders Bring food and drinks to meetings Be courteous Don’t retaliate Don’t personalize Don’t blame Don’t yell Express feelings but calmly

Scott’s Crazy Ideas Try to get to know the person. Try to do something unrelated to special education. Invite the other person to do something with a project, school committee or outside of school group or committee.

Communication All participants have to really listen. Active listening Acknowledge things you agree with Clarify and confirm what speaker said Empathize

BATNA Best Alternative to a Negotiated Agreement. What you could obtain without an agreement from the other person. Figure out the BATNA of others that are involved. Both sides want to work to an agreement that is better then their BATNA.

Interests of the Parties Have to get to the underlying concerns. What the person “really wants.” Have to figure it out for all involved. Not always the specific solution on the table. That might just be the position. For example, an out of district placement could be an interest in ensuring a child reads.

Creative Solutions Not always obvious at first Brainstorm ▫Don’t evaluate ▫Don’t attach to a suggestion to early Talk through possible solutions with pros and cons Look for the solution that is a mutual gain for all involved.

Legitimacy Interests and options must be legitimate. Something the system and process can provide Bounds of legitimacy depend on the situation. With special education some of those bounds are legal ones. Others are fairness, reasonableness and the interests of the parties within their legal and ethical boundaries.

Commitment Occurs at the end Articulate precisely what each person is committing to. Works well with settlement agreement process.

Questions