Resolving Special Ed Disputes
By Pete & Pam Wright
When schools fail to provide the services parents believe their child needs, a due process hearing—a formal, contested, adversarial trial—is the ultimate route provided by law to resolve disputes. But litigation via due process is not the best way to resolve disputes.
Special education due process cases are similar to medical malpractice cases or bitterly contested divorce cases. When emotions run high, it is likely that a judge will resolve the dispute. After a court issues an order, what happens next? Does litigation end the conflict? Do relationships improve? Does the child receive better services? Unfortunately, the answer is often no.
The alternatives to litigation are negotiation with school personnel or mediation involving a qualified and impartial mediator to facilitate communication toward reaching a mutually acceptable agreement.
Negotiation is the starting point. Harvard Law Professor Roger Fisher says, “Like it or not, you are a negotiator. Negotiation is a fact of life.” His book, Getting to Yes: Negotiating Agreement Without Giving In is a terrific resource for developing “win-win” solutions.
In mediation, the parties sit down to discuss problems and solutions. If the matter is successfully resolved, the parties create the settlement terms and conditions. If the parties are fully involved in the process, they have an emotional investment in the success of the agreement and the settlements are rarely breached.
Negotiation and mediation are not easy, nor are they natural. But despite difficulties, we encourage parents and school officials to use negotiation and mediation to resolve disputes about educating children with learning disabilities. In most cases, the outcome is better than litigation.
Pete and Pam Wright are national advocates for children with LD, and creators of the Wrightslaw special education website, books and newsletter at www.wrightslaw.com.