by Brice Palmer, Special Education Advocate
Negotiating solutions to disputes and/or claims saves time and money. Most of our experience is in the civil area, but the techniques and skills in special education cases are the same. By using these techniques, we are rarely forced to take a special ed case all the way to a hearing.
Here are a few techniques that have worked for us. Perhaps they will be helpful for you.
Four Rules to Guide You in a Mediation
1. Organize your records and files.
2. Distill your grievances (issues) into 1,2,3,4 outline format.
State your grievances in short declarative sentences. Eliminate or reduce modifiers, adjectives, four letter utterances, etc.
3. Correlate your evidence (documented supporting facts) to the issues. 1(a)(b)(c), etc.
4. Know what you want.
Techniques & Tactics
Here are some techniques that work.
1. Listen carefully to the other side.
If you listen carefully enough, you’ll find that the other side often gives you good clues about how to solve the problem.
Don'’t begin to formulate a response until you give the other side a chance to express their thoughts and ideas.
There’'s a saying: "It’s rude to continue talking when I am trying to interrupt." If you interrupt while the other party is talking, you'’ll miss a lot of good stuff.
Think about how a tennis player returns the ball. Good players let the ball hit the ground before they take a whack. Players who predetermine their whack before the ball hits the ground get skinned.
2. Do not personalize statements made by the other side.
If you personalize, you’ll get your thin skin handed back to you, wrapped up in a loss.
Don't forget that youare engaged in a process to get the best deal you can for your child. You are not there to argue about whether you are overprotective or nasty. The school has to deal with nasty parents. The school's primary responsibility is to the child despite any parental hostility. The IDEA does not say “a child is entitled to a free appropriate education if the parents are nice to work with.”
The lawyers out on the Internet are saying “yes, but ...”
OK. I recognize there is case law out there that discusses parental hostility getting in the way of the provision of FAPE. In my opinion, these are the exceptions to the everyday trench trudging matters.
3. Learn how to outline conversations and recognize educational jargon.
Much of what is said during meetings is informal conversation and is not germane to the issue(s) being discussed.
Train yourself to recognize murky education jargon. For example, if the IEP team says, “The school feels _________,” you can ask, “What exactly do you mean by “feels?”
What you are after is information about the basis for the school'’s decision.
4. Try to figure out the best alternative to a negotiated resolution for you and the other side.
Some negotiation instructors use a memory device called BATNA.
BATNA stands for Best Alternative to Negotiated Agreement.
Try to figure out what your best alternative course of action will be if your negotiation fails to yield the results you want or are willing to accept. Do the same thing for the other side. (This means you need to know what the other side wants)
If your position is that the child needs X service and the school is providing Y service, you have several choices if the school is intractable. One option is to accept Y as offered. Another is to file for a due process hearing.
What service(s) are available between X and Y that are appropriate, reasonably calculated to provide the child with educational benefit, given this child’s unique educational needs?
The method or procedure you determine during this process is likely to be your best alternative to a negotiated agreement. If you decide that the school's best alternative is a due process hearing, it is unlikely that you will find an informal resolution between X and Y.
5. Learn how to deal with different kinds of negotiators, including hardball players.
For parents who must negotiate without formal training and time to practice negotiating skills outside the trenches, here are a few techniques that will give them a better chance for success.
Do not try to negotiate or argue your position based on a general working knowledge of historic events. It won’t work.
Know the facts that are relevant to your grievance. There has been a lot of ink put on pages describing what relevance or materiality means. For your purposes, use the “so what?” test.
Example: You allege that the school is providing only 15 minutes of OT services once a week, not 30 minutes sessions twice a week as written in the child's IEP. The school will offer as fact that the OT person has a hangnail and is working part time until the condition improves.
The “so what” test asks whether or not the offered fact has anything at all to do with the obligation to implement the IEP as it is written.
Know what you want to accomplish with specificity.
Know what your "throw-aways" are.
For example, many of the parents we represent want the school to issue a written apology. Ain’t gonna happen if the school has an attorney.
So, in this case, play "don’t throw me in the briar patch." Stand firm on the apology issue until you see a crack in the dam, then offer to throw the apology issue away in exchange for something you do want - and will benefit the child.
Negotiating is Part of the Advocacy Process
Opposing lawyers sometimes get together to lay out their respective cases. They banter back and forth about their opinions and whether a theory will fly or prevail or reach a jury or trump a position.
Through this process, they get a notion of the other side’s case and can squish it through the filter of conversation and reach a guess about the strengths and weaknesses of the other side’s case.
As often as not, depending on whether they represent plaintiff or defendant, they are trying to assess:
Finally, do not assume that your opponent is an accomplished negotiator. It is a myth that lawyers are good negotiators. This is just is not universally true.
Go into your mediation or negotiation session with confidence. You will find confidence by knowing exactly what you want and having facts to support your position.