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SPECIAL ED MEDIATION GUIDELINES MAY BE IN THE WORKS

November 30, 2000

WASHINGTON -- One of the most notable conclusions to result from the Consortium for Alternative Dispute Resolution in Special Education's first symposium this week was that there are far more questions about appropriate mediator conduct and ethics than there are definitive answers. Though most agree the debate over these prickly issues should continue to evolve, several at the symposium said they would also support the development of a set of special ed mediation guidelines from which state and local mediation directors can develop their own rules.

Using the recently published ADA Mediation Guidelines developed by a dozen volunteers and shepherded through a two-year collaboration by mediator Judith Cohen, a small group of CADRE symposium attendees set in motion a similar movement in the special ed field. How quickly the movement will get off the ground, however, may depend largely on people who were not present for the initial discussion. The meeting produced approximately five people committed to discussing further the establishment of a guidelines task force, but no one volunteered to spearhead the effort.

CADRE Executive Director Marshall Peter, one of those willing to talk further, stopped short of officially committing CADRE to the cause. In addition to the fact that CADRE has many other projects in motion, he explained, as a U.S. Department of Education grantee, CADRE may be limited in the types of grassroots efforts in which it can participate. Peter did, however, offer technical assistance from CADRE if the effort moves forward.

Cohen, executive director of access resources, a New York mediation and training firm specializing in disability-related issues, also declined to take the reins of the new project. After two years of debating, cheerleading and fundraising to complete the ADA publication, Cohen says she is ready for a break.

Taking advantage of Cohen's experience, the CADRE group used their meeting to comb through the steps the ADA mediation project took, analyzing pitfalls to avoid and brainstorming ways to make it broadly representative yet narrow enough to be useful.

Cohen cautioned the CADRE group not to try to "reinvent the wheel." Though special ed disputes have many unique characteristics, they also have similarities with other types of disputes that already have blueprints to follow. The ADA Mediation Guidelines, as well as rules developed by the Society of Professionals in Dispute Resolution and mediation principles specific to other fields such as environmental protection and land use, can provide a foundation from which a special ed-specific structure can be built, Cohen and other observers noted.

For example, the ADA book provides a jumping off point for defining an effective mediator, how mediators should be trained and how they should be evaluated. The ADA group determined already experienced mediators should have a minimum 14 hours of training in ADA issues, including an opportunity "to interact personally with a person who has a disability." Participants in the discussion at the CADRE symposium suggested this caveat could also be included in special ed mediation guidelines, providing an opening for students or adults with disabilities to get more involved in the process.

The ADA book also tackles the mediator's challenge of empowering all participants in the mediation session while at the same time remaining impartial. "We really felt strongly that the mediator cannot balance the table," Cohen said, noting the better solution to power imbalances is to make sure mediation participants, especially parents, are prepared before the meeting begins. "Parents definitely need to the education about mediation, and they need for the mediators to really be sure that they understand," she said.

The ADA group also concluded mediators should refrain from providing any party with background information on their roles or rights in the special ed dispute. Though she agreed the mediator can use his or her knowledge to make sure the participants have access to the information or guidance they need, Cohen argues taking a more active role can be dangerous. "You need to know an awful lot to really be able to give information to anyone," she noted. Particularly in legal discussions, she said, "The line between information and advice is a very thin one."

Though many situations in ADA mediation are similar to challenges in special ed mediation, the ADA guidelines do not specifically address special ed mediation. Special ed mediators operate in a unique environment, Cohen noted, with at least general rules laid down in the special ed-specific federal law, the Individuals with Disabilities Education Act.

In addition, a few states have already begun creating their own mediation rules, based on laws unique to those states. This could be a boon to a broader special ed mediation guidelines effort, or it could stop such an effort before it even gets started, meeting attendees noted. While the work already done in a handful of states could provide a model for the broader rules, some at the meeting worried other states will decide they need to create their own from scratch rather than adapt an industry-wide set of standards.

Chief among Cohen's other recommendations: A special ed mediation guidelines workgroup should include input from as many different voices as possible, and it should publicize the effort and its resulting guidelines in every possible corner of the special ed field.

Involving multiple special ed voices should not be difficult, in a perfect world. Nearly everyone in the special ed community stands to benefit from improving mediation and giving it a more central role in resolving disputes between families and school systems, mediation proponents say. Keeping the debate from spiraling out of control, on the other hand, could be a challenge. In less than five minutes, the group at the CADRE symposium identified more than a dozen different groups that should be given a voice in any guideline development process.

Cohen suggested a core group of 10 to 12 people commit to developing the guidelines from start to finish, form committees and each reach out to specific communities for input on the portions of the guidelines the committees are working on. Input from the special ed community is critical, Cohen noted. "Without this, you will not succeed," she told the group. "You're going to have a document that no one will read, and you'll have a lot of people who are mad at you."

Any special ed mediation guidelines project will also require "buy-in" from federal agencies and other reputable organizations, Cohen said, because they can provide the clout and credibility needed to develop support within each special ed faction and, most importantly, raise funds to keep the process moving. Relying on volunteer participation by the project's coordinator, for example, is an unrealistic plan, Cohen said, drawing from her experience as the ADA Guidelines coordinator.

Grants from federal agencies or philanthropic organizations, such as the Bell Atlantic Foundation and the Center for Independence of New York, which helped fund the ADA effort, can help cover the project's costs. Any mediation guidelines workgroup will need money to enable the group to meet, whether in person or via conference call, to disseminate information to the special ed community for feedback, and to publish the final guidelines, Cohen noted.8