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DO ATTORNEYS BELONG IN THE MEDIATION ROOM?
CADRE Examines the Pro's and Con's

October 31, 2000

Some complain attorneys sway the balance of power too far in mediation sessions between parents and schools. Others argue they level the playing field for parents who are inherently out-gunned by the school district. The debate continues to grow as states attempt to implement the mediation provisions of the 1997 Individuals with Disabilities Education Act. In a new briefing paper that mirrors the mediation process itself, the National Center on Dispute Resolution (CADRE) lays out the pro's, con's and many examples of effective approaches to resolving the conflict.

Strategies for employing mediation have been evolving since the U.S. Department of Education released its regulations in March 1999 on the implementation of IDEA. The 1997 reauthorization included, for the first time, specific provisions allowing mediation to substitute for the more formal, more costly and more time consuming "due process hearings" whenever possible. "Mediation promises significant benefits over the inequities and inefficiencies of due process for all members of the special education community," CADRE says, noting the concept "has received praise from parents and school district administrators." However, CADRE adds, "The role of attorneys and advocates in special education mediation is controversial." Some argue that without attorneys involved some parents still run the risk of getting steamrolled by school districts with clear ideas of how they want to provide special ed services for the child in question. In addition, proponents argue, attorneys knowledgeable about special ed issues bring valuable viewpoints to the discussion and may, therefore, be able to facilitate agreement more quickly than if schools and parents work on the problem alone. "Some attorneys argue that mediation is simply a variation on the traditional out-of-court settlement process," CADRE says. Opponents of attorney involvement contend the cooperative atmosphere that mediation promotes may in some cases be undermined by "overly zealous advocacy by attorneys on behalf of their clients," CADRE says.

U.S. Department of Education's Mediation Regulations: (34 CFR § 300.506) State and local education agencies must offer a mediation process whenever a due process hearing is requested. Mediation must be voluntary on the part of the parties. State and local education agencies cannot use mediation to deny or delay a parent's right to a due process hearing, or to deny any other rights afforded under Part B of the Act. States are obligated to bear all costs associated with the mediation process. Mediation must be conducted by a qualified and impartial mediator who is trained in effective mediation techniques. States may require that a disinterested party explain the benefits of mediation to parents who choose to decline this form of dispute resolution. Mediations are considered private, confidential proceedings designed to facilitate open exchanges of information, and are not to be used as a tool for discovery should parties eventually go to administrative hearings.

These opponents argue the power imbalance between schools and parents can be overcome in other ways. Principally, the responsibility for maintaining balance in the discussion falls to the mediator, they say. An active mediator can "interpret jargon, assess risks and offer recommendations for parents in order to ensure a fair negotiation," CADRE notes, while avoiding actual advocacy on the parents' behalf. "The best mediators for special education disputes may prove those who possess both facilitative and evaluative skills and are able to manage a process that addresses both the rights and responsibilities of families and school districts and helps to build strong relationships," opponents of attorney involvement argue.

Parents can also consult non-attorney parent advocates and mentors and can become better advocates for their children, a policy which the National Council on Disability supports. In Back to School on Civil Rights, its report on state IDEA compliance released last January, the NCD calls for a comprehensive system of self-advocacy training for parents and families, provided through the federally funded parent training centers based in major cities across the country.

NCD WANTS STATE IDEA OVERSIGHT SHIFTED FROM PARENTS TO DOJ January 27, 2000

"The central challenge," CADRE says, "is to create a system that affords respect to all participants, provides families and schools with the skills and information necessary to engage effectively in the mediation process, and focuses on the educational needs of the children." Various states have developed ways to address that goal, with some prohibiting or limiting the role of attorneys in mediation and others focusing more on fine-tuning the process itself.

Some states, for example, provide all participants in the mediation process training in collaborative problem solving techniques or publish specific guidelines for acceptable behavior in mediation. Other states take a larger view. "A handful of states have viewed the construction of a mediation system as an opportunity to create a statewide culture that emphasizes the infusion of effective conflict management strategies into all phases of disputes," CADRE says.

At least eight states -- Alaska, Arkansas, Delaware, Idaho, Maine, New Hampshire, Pennsylvania and Washington -- exclude attorneys from mediation, primarily to limit the adversarial nature of the process, according to CADRE. "Even mediation directors who are generally favorable to attorney participation provide examples of lawyers who are known for their aggressive tactics and harsh interpersonal style," CADRE says. "Boutique law firms have emerged that focus exclusively on special education issues."

Some argue state exclusion of attorneys may threaten the long-term viability and acceptance of mediation as an alternative to due process hearings, because "exclusion of attorneys could marginalize them and lead them to counsel clients against participation in this form of dispute resolution," CADRE says.

Alternatively, some states limit the attorney's role to providing the family guidance before the mediation session begins, consulting with families by telephone during mediation and reviewing the agreement following mediation. This approach keeps the attorneys from directly participating but does not eliminate the family's opportunity to get legal advice. "Those who find attorneys helpful in the mediation process criticize this policy, arguing that it discounts the importance of the interpersonal dynamics that take place during a mediation session," CADRE says. An attorney actively involved in the mediation session, some argue, may be able to ensure that the best possible agreement is reached.

Though it attempts primarily to lay out the arguments on both sides of the dispute, CADRE's briefing paper concludes with a clear statement on how states can try to resolve the conflict. "Rather than focusing on the inclusion or exclusion of attorneys and advocates in special education mediation, states are advised to reframe the issues in order to examine their present conflict resolution systems," CADRE says. "By constructing respectful conflict resolution systems that include training for families, school districts, service providers, attorneys and advocates, and by placing the primary emphasis on the educational needs of children, states may no longer need to debate the question of whether to include attorneys and advocates in mediation."8