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When You are in Mediation, You are Negotiating

08/30/10
by Pam Wright

We are about to go into mediation and have concerns and questions about the process.

Q: Can parents tape record the meeting? If the district will have an attorney present at mediation, can one be appointed for the parent, at no charge?

Mediation is a problem solving process that is confidential. Success depends on both parties being able to communicate openly. The parties cannot use information gained in mediation in later litigation, so the answer is “No.” People should not attempt to tape record mediation. If there is litigation later, a judge will come down hard on them for violating the confidentiality of mediation.

There is no legal requirement that an attorney be appointed for a
parent at no charge.
I would suggest you contact the state P & A office -
their mandate is to represent the interests of people with disabilities. You can find your state P & A office in your state directory on the Yellow Pages or use the National Disability Rights Network Directory.

Q:  What can we do to feel less anxious and intimidated?

Parents need to prepare for mediation as they should prepare for any important meeting or event. You need to be able to state what you want and why, and provide any documentation or evaluation that supports your requests. When you prepare, you will understand what mediation can and cannot do. If you prepare, you will feel less anxious.

Mediation is not a formal legal process like a due process hearing.
People use mediation to resolve disputes of almost any kind – between neighbors, between landlords and tenants, between spouses.

The purpose of mediation is to provide a way for people to discuss
their concerns openly, without fear that what they say will be used
against them. When you are in mediation, you are negotiating.

I recommend that you read “Getting to Yes.” The first
edition is less than 100 pages. Every time I open Getting to Yes, I
learn something new or relearn something I forgot.

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11 responses so far ↓

  • 1 grace 04/11/13 at 12:34 am

    since 3 son has had and i.e.p and a para, 1:1 or 3:1, now at a voke high school and has made a miraculous recovery, and I was told, no i.e.p. No diag. no services, “what are you going to do pull magic out of the air?” quoted by the sped director. entire room was excused and told “we are outta here. because “she wasnt doing this anymore” I informed her her hostility and unprofessionalism needed to be removed from the meeting and we needed to focus on the i.e.p which they let lapse. then tried to give me a 30 day notice of no iep, also plan to discontinue in other documentation. at end of school year. i now have an advocate. Pulled magic out of the air. new dx of aspbergers and pdd. evaled by speech therapist and have a mediator from the state, Im afraid they are still going to take iep away, gets good grades with help,

  • 2 eilene 09/05/10 at 8:50 pm

    Yes I agree, keep copies of email, letters, a time frame and meetings with school administration.

  • 3 Debbie 09/05/10 at 8:43 am

    A reminder. As always, document, document, document. In this state, a violation of a mediation agreement is considered failure to provide FAPE. School attorneys will tell the school that a hearing officer will rule against them unless they can prove a good faith attempt to provide everything they signed for.

    It is always important to keep documenting conversations. Write letters of understanding. Keep notes in a way that is organized and accessible. This is a good area to use the “Columbo” approach. “I don’t understand. The agreement says this. This is what is happening instead. Can you help me understand?”

    I agree that when the verbal agreements are put in writing, things can start to shift. That is why when during a mediation a verbal agreement is made, I ask “How is this going to be phrased in the agreement?”

  • 4 Sherri 09/03/10 at 12:49 am

    Eileen and Sue – It is so nice to have someone to commisurate (sp?) with! Eileen – I hope you get things worked out for your daughter. You are absolutely right that you are your child’s best advocate. In our case, we are our child’s only advocate. We have a parent mentor in our district, but I think the only reason they have one is to find out how much the parent knows and report back to administration. We got a Prior Written Notice today that they were willing to re-evaluate speech. I think that was a small victory. Now if we can just get them to meet with us to discuss the IEP, like they agreed to in the mediation. I have been trying to schedule the IEP meeting for 6 weeks now. Sue – It is a vicious cycle! Thanks and good luck Eileen with your child. Please keep us updated on your progress too.

  • 5 Eileen 09/02/10 at 9:15 pm

    Sherri I have been advocating for the summer first to get a copy of the IEP then to get it corrected and finally it was emailed tonight school starts on Tues. I am still trying to get her schedule corrected. Resource room seems to take away other subjects and this is a possible concern. I will tell all parents you are your childs best advocate. You must keep going back to the school, go highter to supers, board of ed , I would contact the mediator. I have the # and address of our impartial hearing person and if I was not satisfied I would have eventually called him. I feel I want to try and solve any problems with the principal first he/she is your best bet. Sherri, keep on working at it. Let us know on the blog if you get anywhere.

  • 6 Sue 09/02/10 at 9:03 am

    Sherri, it is a nice vicious cycle isn’t it. Only recourse is to start the process again.

  • 7 Sherri 09/01/10 at 1:33 am

    We went through IEP facilitation (mediation) this summer for our daughter. We had a really great mediator. She made sure all our concerns were given a voice. We put everything in writing and got signatures. My husband and I thought everything would be okay. We were WRONG. School has now started and they are once again doing everything they can to keep my daughter from getting the services they agreed to. I thought the agreement we came to was legal and binding. Eileen, I would take your comment one step further. The IEP process is enough to make a sane person lose their mind!

  • 8 Eileen 08/31/10 at 2:35 pm

    I work at a school and am also the parent of a child who I had to go thru 3 EPCs before my daughter received an IEP. AT my school a parent has the right to tape record any meeting but must give 24 hours notice. This has only happened once. I went thru resolution was declined and was ready to go to an impartial and then the school district called me up and wanted a redue. The IEP came 3 1/2 months later over the summer and has been filled with errors. School starts in a week , I have met with the principal and am still waiting for an official correct legal IEP. This is a very difficult process and I feel sorry for families that do not know their legal rights.

  • 9 Sue 08/31/10 at 11:20 am

    Our district does not go to mediation. Since both parties have a choice they decline forcing parents into due process.

  • 10 Dad2Luke 08/30/10 at 7:51 pm

    Our experience with mediation is that it is not over until the agreement is signed off. We thought we had an agreement, but when it came time to put it on paper, it was time to start the negotiations all over again. What got written down is not what we verbally agreed to. I think I recognize this tactic from used car sales. I’m not sure who is to “blame” or if there is blame, but parents need to be aware that until the final signatures are on the paper there is will work to be done.

  • 11 Steve 08/30/10 at 2:40 pm

    The success of mediation can have a lot to do with the expertise of the Mediator. Our mediator was a complete failure – after 8 hours, both sides agreed that she was hindering the process. Our lawyers ended up working out the differences after the mediation process and we ended up with everything we had requested for my son. Both sides usually have a say/choice between Mediators, so do your homework and choose carefully.