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We Are Going to Mediation - Do We Need an Attorney?

"Our daughter has a hearing impairment, is oral, and is mainstreamed in regular education classes. Although she is receiving passing grades, we are concerned about next year. We do so much work with her at home."

"We asked that she have an itinerant teacher next year. The school denied our request. They said she has to 'flounder' before they will provide any help. If we stop working with her at home, she will flounder. We are not willing to put her through this. We are going to mediation to resolve this issue."

"We contacted an attorney who suggested that we go to mediation alone - that it isn't necessary to bring an attorney with us. The school is sending an attorney to mediation. Is it wise for us to go without one?"

"We have reports and letters from professionals, audiologists, and psychiatrists that support our request. What else can we do or bring with us to the mediation meeting? Any words of wisdom?"

IDEA Encourages Mediation

When Congress reauthorized the IDEA in 1997, they expressed concerns about the adversarial experiences parents and schools reported when they had disputes:

We are ..."discouraged to hear that many parents, teachers, and school officials find that current IDEA provisions encourage an adversarial, rather than a cooperative, atmosphere ..."

Congress added mediation to the law and encouraged parents and schools to use mediation to resolve disputes. Mediation is a confidential process that allows parties to resolve disputes without resorting to a due process hearing.

An impartial mediator helps the parties express their perspectives and positions and understand the positions of people on the other side. The mediator's job is to help the parties communicate and reach an agreement, not to recommend solutions or take sides.

When done properly, mediation is an an excellent way to resolve a dispute.

Paper Trails

When you have a dispute with the school, you need to have independent support of your position (independent of what you remember).

You can develop a paper trail for additional support for your position or request by:

  • keeping a log of contacts between you and the school;
  • writing polite businesslike letters to the school after any meeting where decisions are made.

For example, after an IEP meeting, write a polite letter thanking the team for the meeting. Include your understanding about what the school agreed or refused to provide, like this:

"My understanding of the services that my daughter will receive is XX, YY, but not ZZ."

"We advised the IEP team that we were spending two or three hours a night in tutoring since she was in second grade."

"When we asked the team for more help, Ms. Smith said that our daughter would have to flounder before the school would provide any help. We explained that our daugher would be floundering now if we weren'’t providing so much help at home."

If questions come up about whether the school was aware of the problem, your letters are evidence that the problems are longstanding and that you have been trying to work cooperatively with the school.

Our book, From Emotions to Advocacy, teaches you how to create paper trails, write effective letters, and prepare for meetings.

Attorneys in Mediation

You said you contacted an attorney who suggested that it wasn't necessary to bring an attorney to the mediation. The school plans to send an attorney.

For mediation to work, neither side should bring an attorney!

When properly done, mediation helps people communicate. Mediation is intended to help both parties discuss the situation openly and honestly, with the goal of helping the parties develop a fair acceptable solution to the problem. If lawyers are present, there are more chances for the situation to get polarized.

A mediator can establish ground rules for the mediation and can ask the school board lawyer to remain in the waiting room.

Evaluations and Letters

Yes, definitely bring your evaluations and letters. Make a short list of what you want for your daughter and use the experts' letters and reports to support your requests.

How Can You Prepare?

You asked about other steps you can take to prepare for the mediation.

Getting to Yes

Go to your library or bookstore and pick up a copy of Getting to Yes by Roger Fisher. Getting to Yesis based on research about how to resolve conflict. This book will help you understand the mediation/negotiation process so you can participate effectively. Getting to Yes is a great book - and it's a small book - probably no more than 100 pages long.

Check out other books about Mediation and Negotiation in the Advocate's Bookstore.

A Word or Two of Wisdom.

Assume you resolve your current problem. History repeats itself.

If you begin to build your paper trail now and have more problems later, your letters will be good evidence of your dealings with various school personnel.

Let us know how things turn out.

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