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Handling Disputes: Due Process and Mediation

Angela Oswalt Morelli , MSW

When parents strongly disagree with the school team's eligibility determination and believe their child needs special education services, they can start due process proceedings. However, parents need to know that due process is a serious undertaking. It requires significant time, cost, and energy, and it often will harm the relationship the family has with the school district. Before moving forward, parents should seriously ask themselves if they feel the suspected disability and its impact on their children's school functioning is sufficient to meet IDEA requirements. Furthermore, parents should ask themselves if they have enough evidence through evaluations and assessments to prove this. This is where staying organized and keeping documentation of a child's school performance is so important.

scales of justiceDue process is truly expensive. Parents will probably need to obtain legal counsel and private evaluations, each costing thousand dollars. If parents go through due process, and the proceedings determine their child's eligibility for special education services, the school district can be required to reimburse parents for the legal costs and independent evaluations. However, if parents' claims are found to be unreasonable, frivolous, or harassing, the parents can actually be forced to pay the school's legal fees for the proceedings.

A statute of limitations governs how long parents have to appeal a denial of disability eligibility. Unless otherwise specified by law, the process must be undertaken within two years from the date of the eligibility meeting.

If parents do choose to proceed with due process, they are strongly advised to get professional legal assistance from a law firm specialized in education law or through a special education advocacy organization. Parents can do their own research to locate these resources, but IDEA requires schools to provide families with contact information for free or low-cost legal resources in the area.

Parents need to request that a due process hearing take place in writing. This request needs to be sent not only to the school, but also to the state's department of education, which will direct the proceedings. The request needs to be very detailed and specific to the point that wise parents will want to obtain legal assistance in drafting the request. In general terms, however, the request for due process needs to include: 1) the student's name and address, 2) the parent's name and address, 3) the name of the school, 4) the description of the items being argued, 5) the parent's desired outcome, 6) the parent's desired reimbursement for costs incurred through due process, and 7) whether the parent wants to try mediation or wants to go straight to a due process hearing.

A due process hearing is much like a court trial, and the parents have the burden to prove their case. The case will be heard by a neutral third party who acts like a judge reviewing all of the documentation, evaluations, and testimony from witnesses. The hearing officer's final decision will be binding for the school and the family. Non-binding mediation is an alternative to the due process hearing. The mediation process is typically less intense and less hostile than due process and thus may reduce the potential for strained relations between schools and families. When parents elect mediation, the State Department of Education assigns a mediator to work with the parents and the school. The mediator does not determine who is right or wrong but rather helps everyone to arrive at a mutually acceptable compromise position. If a compromise position cannot be arrived at, the possibility of due process remains available.

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