Resolving Special Education Disputes: Negotiation, Mediation & Litigation by Pete & Pam Wright

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If you have attended a Wrightslaw advocacy training program or Boot Camp, you know we ask questions about conflict and obstacles to effective advocacy.

"How many of you believe parents and school personnel should be able to work together on behalf of the child, without disagreements, disputes or conflict?"

Many hands fly up. You are on firm ground!

"How many of you have had conflict with your spouse or partner?"

More hands fly up. Laughter ripples through the room.

"How many of you have had conflict at work - with a co-worker, supervisor or boss?"

All hands fly up. The rooms fills with laughter.

Many of you feel relieved - you are not alone!

Conflict between parents and school officials is normal and predictable. Most parents want the "best" services for their children. School officials are only required to provide "appropriate" services for children with disabilities -- and are concerned about balancing their budgets.

Economic issues lead to conflict and adversarial relationships between parents and school officials. Similarly, economic issues lead to conflict between spouses, between workers and employers, between patients and HMOs, between taxpayers and the IRS, between private industry and federal regulators.

When emotions run high, as they do in special education and divorce cases, it is more likely that a Judge will resolve the dispute. After a court issues an order, what happens next?

Does litigation end the conflict? Do relationships improve? Does the child receive better services? Unfortunately, the answer is often "no."

A final order that requires one party to provide a service or pay a sum of money to the other party may not end the conflict. Appeals follow. Resistance to the order strengthens. The losing party feels victimized by the Court and refuses to pay. Alternatively, the losing party stalls, which leads to mistrust and more conflict.

After the U. S. Supreme Court issued their landmark decision in Brown v. Board of Education, some Virginia school boards closed their schools. These school boards used massive resistance to avoid complying with the decision.

Parents negotiate with school personnel for special education services. As Roger Fisher says, "Like it or not, you are a negotiator. Negotiation is a fact of life." (Getting to Yes : Negotiating Agreement Without Giving In by Roger Fisher and William Ury)

In mediation, the parties sit down to discuss problems and solutions. If the matter is successfully resolved, the parties create the settlement terms and conditions. If the parties are fully involved in the process, mediated settlements are rarely breached. The parties have an emotional investment in the success of the agreement.

Negotiation and mediation are not easy, nor are they natural. Natural responses to conflict are fight and flight. Despite these difficulties, we encourage parents and school officials to use negotiation and mediation to resolve disputes about educating children with disabilities. In most cases, the outcome is better than litigation.