1. ACSA Every Child Counts Symposium
Understanding the Art and Science of
Mediating Special Education Disputes
January 16, 2014
Presented by
Ricardo Silva, Esq.
and
Beth Nishida
Limited Liability Partnership
7404 N. Spalding Avenue Fresno, California 93720-3370 Tel 559-431-5600 Fax 559-261-9366
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2. Understanding the Art and Science of Mediating Special Education Disputes
ACSA Conference ~ Monterey California
Presented by:
Ricardo Silva, Esq. and Beth Nishida
January 16, 2014
Mediating Special Education
Disputes
Beth Nishida
Special Education Director
Hacienda La Puente Unified School District
Ricardo Silva
Partner Lozano Smith
San Diego Office
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Overview
• IDEA and Resolution
• Defensibility
• FAPE (overview)
• Relationships
• Settlement
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3. IDEA and Resolution
“Parents and Schools should be
given expanded opportunities to
resolve their disagreements in
positive and constructive ways.”
20 U.S.C. § 1400(c)(8)
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IDEA and Resolution
2004 Amendments Added
• Early Resolution – Requires Parent
Participation
“Congress has repeatedly amended
the Act in order to reduce its
administrative and litigation costs.”
Schaffer v. Weast, 546 U.S. 49, 57(2005).
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Number of Filings Fiscal Year 2012-2013
• Student
• District
• Total
2,727
467
3,194
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4. Outcomes – First Quarter
Total Cases Filed
911
Reasons for Closure
• Decisions Issued
• Settled at Resolution
Session
• Settled at Mediation
• Settled Outside Mediation
or Resolution Session
• Withdrawn
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20
360
303
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Prevailing Party Status –
First Quarter
• Student Prevailed:
5
• District Prevailed:
7
• Split:
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FAPE and Defensibility
• FAPE should lead to a defensible
program
• FAPE is always the GOAL!
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5. Reasons for settlement:
• Not Defensible
• Witnesses
• Costs
• Heat
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Reasons for settlement:
•
•
•
•
•
•
Finality
Certainty
Minimize risk
Reduce fees
Avoid hearing
Strategy
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Reasons for settlement:
• Defensible
program
• Witnesses
• Costs
• Heat
12
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6. Taking stock of your case
What do you look for?
• Defensible
• Staff
– How will the staff handle a due process
hearing?
– Will they make good witnesses?
– Are they all appropriately qualified or
credentialed?
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When in Due Process
When you are in a due process
hearing, how do you use the
process to your advantage ?
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The Process
•
Early Resolution Session
•
Mediation (OAH)
•
Private Mediation
• Hearing
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7. Strategies for Negotiating Special
Education Disputes
• Prepare, prepare, prepare
• Cooperation: once in
negotiations, the goal is jointproblem solving
• Identify barriers to cooperation
*Adapted from Getting Past No, by William Ury
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Strategies for Negotiating Special
Education Disputes
• Identify Barriers
– Reactions
– Emotions
– Positions
– Dissatisfaction
– Perception of Power
*Adapted from Getting Past No, by William Ury
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Strategies for Negotiating Special
Education Disputes
• Breakthrough barriers
– Mile-high view
– Step to their side
– Reframe
– Build a golden bridge
– User power to educate
*Adapted from Getting Past No, by William Ury
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8. Personal Relationships
• Parents want to feel that
someone is listening to them
• Probability that they will
give you an opportunity to
resolve dispute before filing for
due process, rather than being
blind-sided
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Relationship Builders
• Listen
• Don’t react
• Don’t judge
• Partner
• Problem Solve
20
Relationship Wreckers
• Failing to Listen
• Reacting
• Judgmental
• Predetermine or dictate
outcome
21
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9. ADR and Relationships
• Relationships are critical
• Should be built before a
dispute
• Also during the ADR process
22
Important distinction
FAPE vs. Settlement offer:
At an IEP team meeting you
DO NOT compromise your
FAPE offer!
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Settlement, What is the benefit of
your bargain?
• What do you get in exchange;
are you buying peace?
• Don’t let it be stay-put: Ensure
that services have an end-date
and identify the replacement
services
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10. Settlement is an opportunity
• Opportunity for data collection
• The data collected during the
settlement period may support
your argument why it is not
FAPE
25
Understanding the Settlement
Agreement
• Implement: Make sure staff
understand the relevant
portions of a settlement
agreement
• Inform: Make sure staff
understand what you are trying
to accomplish with the
settlement
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Final Thoughts for Today
Ensure IEP offers FAPE
• Relationships are important
• Understand the process
• Understand the opportunity
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11. Please Note:
THE LEGAL STUFF
These materials and all discussions
of these materials are for
instructional purposes only and do
not constitute legal advice. If you
need legal advice, you should
contact your local counsel or an
attorney at Lozano Smith. If you are
interested in having other in-service
programs presented, please contact
clientservices@lozanosmith.com or
call (559) 431-5600.
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may be copied, or sold or used for any
commercial advantage or private gain, nor
any derivative work prepared there from,
without the express prior written
permission of Lozano Smith through its
Managing Partner. The Managing Partner of
Lozano Smith hereby grants permission to
any client of Lozano Smith to whom
Lozano Smith provides a copy to use such
copy intact and solely for the internal
purposes of such client.
• © 2013 Lozano Smith
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