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Mediation - Next Steps

For your consideration - a letter written by many advoactes in California to State Superintendent Jack O'Connell:

Update - September 26,2005

Dear Mr. O’Connell:

This letter is being directed to you on behalf of a number of organizations and individuals who represent parents of special education students, as well as the students themselves.  Attached hereto is a list of those organizations and individuals.  We understand that the California Department of Education has decided to terminate as of December 31, 2005, the mediation system that has been in place in California for approximately 25 years, which utilizes independent contractors who have no connection with any government agency, and replace it with a system operated by the Office of Administrative Hearings (OAH).  The purpose of this letter is to express the adamant opposition of the attached organizations and individuals to this change, and the reasons for this opposition.

Attached hereto is a letter written to you by one of the undersigned, Michael Zatopa, raising his objections, as well as the responses to his letter from counsel for CDE, Marsha Bedwell and Dr. Alice Parker, current director of the Office of Special Education for CDE.  It is clear from the responses to Mr. Zatopa’s letter that CDE believes, for whatever reason, that sitting Administrative Law Judges (ALJ’s) can lawfully act as mediators in special education disputes.  It is equally clear that CDE was unwilling to provide any law or other basis for that position.

Before going into more detail about the reasons for opposing the change proposed by CDE, we would first like to remind you of recent statistics from McGeorge Law School regarding the success of the current mediation system.  During the first three quarters of the 2004-05 fiscal year: 

• There were 323 mediation only requests
• 168 were resolved in mediation
• 149 ended without resolution but without hearing
• Only 21 proceeded to hearing.

During those same three quarters

• There were 2168 due process hearing requests received
• 2146 requested mediations, an amazing statistic by itself
• There were 1886 mediation dispositions
• 862 were actual agreements, 458 were dismissals, 484 were withdrawals
• Only 82 went to hearing.

This means that of approximately 2000 due process requests, less than 5% proceeded to a formal hearing.  By any interpretation of dispute resolution, this is obviously an impressive track record, saving parents, school district and the state enormous amounts of money, time and other resources that would be consumed by litigation.  In addition, preventing litigation also prevent the stress and pain to families resulting from parents being forced into litigation to obtain appropriate programs for their disabled children.  As this recent statistical track record is consistent with the statistical success of the mediation system over the years, we are baffled at why CDE is considering changing this system.  It is virtually impossible to improve the track record of the current system.  Using the old axiom, “If it ain’t broke, why are you trying to fix it.”

Mr. Zatopa’s letter goes into a number of reasons why utilizing ALJs would not be an “impartial” system as required by the IDEA.  While we, as a group, have not yet researched the detailed legal and policy definitions and parameters of mediations, we universally believe that what is being proposed is a settlement conference system, not a mediation system.  Throughout the federal and California court systems, “mediations” that are required in family courts or federal court are not conducted by judges.  When mediations are required, courts have panels of professional mediators. If judges conduct settlement discussions, these are termed “settlement conferences,” not mediations. Mediators are private practitioners with background and training as mediators, independent from the courts.  In fact, for example, the U.S. District Court, Northern District of California, does not even require that mediators be attorneys.

What CDE is proposing is a “settlement conference” system.  While we certainly have no problem with the state making available settlement conferences before ALJ’s, this is not a mediation system.  While it is questionable whether using ALJ’s as mediators is lawful, we are also startled as to why it is being proposed in any case.  We are asking for a clear and logical explanation as to why CDE wants to eliminate a system that has been so successful for 25 years, and where no statistical improvement in preventing litigation is possible.

The consequence of having a system that is not sensitive to the emotional and psychological concerns of parents will be an explosion of litigation.  After all, it is the parents who are, 90% of the time, initiating the process.  That has been one of the major strengths of the current mediators.  Because they are independent contractors, they have been able to work with parents not only regarding their legal issues, but their emotional ones as well.  Mediators give parents their home numbers, and frequently spend a great deal of time assisting parents after hours and even on weekends.  This will simply not happen if this task is assigned to ALJs.

We hereby request to meet with you personally regarding this issue of great concern to the special education advocate, attorney and parent community in California.   We would like the opportunity to discuss with you and your staff the reasons for our belief that the proposed system will lead to an overwhelming increase in litigation, with the hope that we can convince you to maintain the current mediation system. 

If you chose not to meet with us, we will have no alternative but to explore other means to preventing the termination of such a successful and cost effective mediation system.

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Mediation Component of California’s Special Education Due Process System Should Not Be Changed

• About 95% of the cases resolve with assistance of the current mediators; the field is generally happy with the current mediation system.
• California Department of Education (CDE) has a long history of providing true mediation in special education and has been a national leader by offering mediation and mediation only options to parties before other states. CDE created the system, using independent mediators, in 1980, mediation did not become a part of Federal law until 1997.
• There are issues and problems associated with judges acting as mediators and as judges.
• Mediation is not the same as a due process hearing and the skills needed to do the work are different.
• The pressure CDE has received from the Union and DGS has been pressure to have the hearings (not the mediations) conducted by state employees, the State Personnel Board uses independent contractors as mediators.
• The current pool of mediators has about 200 years of experience conducting special education mediations.
• Settled cases cost the state 11% of what a completed hearing costs the state – and most likely the difference in costs is even higher for the parties (districts and parents), therefore settled cases are more cost effective.
• The current mediators provide mediations for the Department of Developmental Services (DDS), OAH conducts those hearings, and we work cooperatively with them regarding case status, etc.  This system was set up in 1999 by us, Protection & Advocacy, and Karl Engeman at OAH (who is slated to run the special ed program).  DDS has just renewed this contract with McGeorge for another three years.  Also, the Dept. of Rehab. contracts with McGeorge to do mediations.

For your added consideration

updated 9/28/05

September 28, 2005

Jack O’Connell

Superintendent of Public Instruction

California Department of Education

1430 N Street

Sacramento, CA  95814

Dear Sir:

I am writing to urge you to  maintain the current system for conducting Special Education mediations.  The merits of the mediation system should be looked at separately from the hearing system. The pressure CDE has received from the Union, DGS and the State Personnel Board has been in regard to hearings, not the mediations.  The Department of Education has never used state employees for the mediations since the inception of the due process system.  Even the Personnel Board of Review uses independent contractors as mediators. There is precedent in California state government for OAH conducting  hearings and a private entity conducting the mediations.  Both the Department of Developmental Services and the Department of Rehabilitation do so currently for their due process systems.   I urge you to maintain the contract for the current mediation system for the following reasons:

COST:  Cases settled prior to hearing cost the state 11% of cases that go through a hearing.  Cases that go to hearing also cost the parties (the district and the parents) far more.  95% of cases resolve without the need for hearing with the current SEHO mediators.  OAH has a 48% settlement rate on the cases they mediate. If hearings cost more money to the state and the parties, and 95% of cases in the current system settle without hearing, the mediation system will make or break the due process system.

SATISFACTION OF PARTIES:  Ignoring cost, studies show that the parties are more satisfied with the outcome of mediations than hearings.  Mediations allow the parties to develop a mutually agreeable plan of action to resolve the dispute that is tailored to the unique interests of each party, not merely a decision based on a legal analysis as would result in a hearing or settlement conference.  Furthermore, and of possible greater long-term benefit, the mediation assists in rebuilding a damaged relationship between the parties.  Although a hearing resolves the immediate dispute, studies show that the adversarial nature of the hearing process leaves the parties more alienated than before the hearing and often more prone to ongoing disputes.  The current mediation system for Special Education due process has been praised nationally for its rate of resolution and the school district and parents who utilize the mediation services express great satisfaction with it.

THERE IS A FATAL FLAW ASSOCIATED WITH JUDGES ACTING AS MEDIATORS AND JUDGES:. Mediation is not the same as a hearing and the skills needed to do the work are different.  Furthermore, parties divulge extremely sensitive and confidential information to mediators in caucus to clarify their underlying interests and legal vulnerabilities.  By so doing, the mediator can help the parties reach an agreement that addresses the underlying interests.  It would not be prudent for a district to “confess” its legal vulnerabilities to an ALJ acting in the capacity of a mediator in case #1, when that same ALJ is functioning as a hearing officer in case #2 currently in hearing involving that same district and a similar issue.  Asking ALJs in such a scenario to ignore what they know from case #1 would be like trying to un-ring the bell.  It simply cannot be done.  The current pool of mediators has about 200 years of experience conducting special education mediations.

I understand that the decision has been made regarding OAH conducting the special education hearings, however, I urge you to keep the current arrangement for mediation services intact.  In my opinion, your failure to do so will destroy a successful system and destroy any likelihood that OAH can handle the resulting hearing caseload.

Sincerely,

• expands parental rights by providing for increased parental involvement and decision making in all phases of a child's educational experience.
• places more emphasis on the participation of children in the regular education curriculum
• adds provisions to address behavioral factors and to encourage remediation of problem behaviors
• makes some changes in requirements pertaining to the IEP in light of Congress' focus on improved educational results and transition planning
• streamlines many of the old requirements to reduce paperwork burdens and to encourage the development and implementation of more meaningful IEPs; and
• clarifies some issues upon which courts have differed in IDEA-related litigation.

Parents Participation: Parents must be-

• included on the team that determines the child's eligibility for services
• part of the "IEP TEAM" that develops, reviews and revises the IEP
• included in the group that makes decisions about the educational placement of their child.

• a copy of the evaluation report and documentation of the eligibility determination
• notice of the determination that there was no need for additional data to determine the child's initial or continued eligibility and the reasons for it
• notice of their right to request an eligibility assessment

In Conducting The Evaluation, An Local Education Agency (LEA) Must:

• use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the PARENT
• not use any single procedure as the sole criterion for determining the child's eligibility or the child's appropriate educational program
• use technically sound instruments to assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors
• ensure the tests and other evaluation materials are selected and administered so as not to be discriminatory on a racial or cultural basis and that they are provided in the child's native language or mode of communication, unless clearly not feasible to do so
• ensure that standardized tests given to the child have been validated for the specific purpose used, administered to trained and knowledgeable personnel and administered following the instructions provided by the producer of the test
• ensure that the child is assessed in all of suspected disability
• ensure provision of assessment tools and strategies yielding relevant information that directly assists persons in determining the child's educational needs.

• Present Educational Performance
• Measurable Annual Goals
• Special Education, Aids and Services, and Program Modifications and Supports
• Degree of LRE: Explanation of the extent to which the child will not participate with non disabled students in the regular class and in extracurricular and nonacademic activities
• Modifications to State and District wide Assessments
• Commencement, Frequency, Location and Duration of Services and Modifications
• Transition Needs and Services: Starting at age 14
• Progress Measurements and Reports

Effective July 1, 2005

Special Education Due Process

The Office of Administrative Hearings will now manage all mediation and due process matters related to Special Education.

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Office of Administrative Hearings

Special Education Unit

Phone : 916.323.6876

Fax: 916.322.8014

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A child with a disability MUST remain in his or her current placement during the pendency of any due process proceeding, UNLESS:

• the child's parents and the educational agency agree otherwise
• school personnel unilaterally- suspend or place the child in an interim alternative educational setting or another setting for 10 days or less or place the child in an interim alternative educational setting for 45 days or less for an offense involving weapons, illegal drugs, or controlled substance
• a hearing officer, upon the request of the school personnel, orders a change in placement to an interim alternative educational setting for 45 days or less because the child's current placement is substantially likely to result in injury to the child or others