Order Code RL31331
CRS Report for Congress
Received through the CRS Web
The Individuals with Disabilities Education Act:
Mediation Provisions
March 13, 2002
Nancy Lee Jones
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
The Individuals with Disabilities Education Act:
Mediation Provisions
Summary
Mediation is a flexible and informal process in which a third party assists
individuals to resolve a conflict. The mediator is trained to facilitate discussions of
each participant’s issues. The goal is to create an agreement that resolves differences
and enhances the relationship between the disputants. The mediator, unlike a judge,
does not make decisions regarding the outcome of the matter; rather the participants
make these decisions. The Individuals with Disabilities Education Act, IDEA, 20
U.S.C. §§1400 et seq., requires that mediation is to be voluntary but educational
agencies must ensure that procedures are established and implemented to allow parties
to a dispute to solve their dispute through mediation. The mediation is to be
conducted by a qualified and impartial mediator who is trained in mediation
techniques and the cost is to be borne by the state. The state or local educational
agency may establish procedures to require parents who do not wish to use mediation
to meet with a disinterested party to encourage the use of mediation. IDEA leaves
the decision of whether or not to allow attorneys to participate in mediation up to the
individual states.
This report discusses the statutory and regulatory requirements of IDEA, judicial
decisions, and the concept of mediation as it applies to special education. It will be
updated as developments warrant.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Current Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statutory and Regulatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Current Statutory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Department of Education Regulations . . . . . . . . . . . . . . . . . . . . . . . . 4
Judicial Decisions Regarding IDEA Mediation . . . . . . . . . . . . . . . . . . . . . 4
Use of Mediation in Special Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Benefits and Disadvantages of Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Use of Attorneys in IDEA Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Individuals with Disabilities Education
Act: Mediation Provisions
Introduction
Mediation is a flexible and informal process in which a third party assists
individuals to resolve a conflict. The mediator is trained to facilitate discussions of
each participant’s issues. The goal is to create an agreement that resolves differences
and enhances the relationship between the disputants.1 The mediator, unlike a judge,
does not make decisions regarding the outcome of the matter; rather the participants
make these decisions. The Individuals with Disabilities Education Act, IDEA, 20
U.S.C. §§1400 et seq., requires that mediation is to be voluntary but educational
agencies must ensure that procedures are established and implemented to allow parties
to a dispute to solve their dispute through mediation.2 The mediation is to be
conducted by a qualified and impartial mediator who is trained in mediation
techniques and the cost is to be borne by the state. The state or local educational
agency may establish procedures to require parents who do not wish to use mediation
to meet with a disinterested party to encourage the use of mediation. IDEA leaves
the decision of whether or not to allow attorneys to participate in mediation up to the
individual states.
This report discusses the statutory and regulatory requirements of IDEA, judicial
decisions, and the concept of mediation as it applies to special education. It will be
updated as developments warrant.
Current Law
Statutory and Regulatory Provisions
Background.
IDEA, which was originally enacted in 1975 as P.L. 94-142, provides grants to
the states for the purpose of providing a free appropriate public education (FAPE) for
1 CADRE, “Considering Special Education Mediation,”
[http://www.directionservice.org/cadre/medinfo.cfm]
2 20 U.S.C. §1415(e). For information about state mediation programs under IDEA see
[http://www.directionservice.org/cadre/state/] and NASDE, “State Mediation Systems: A
NASDE Report,” (1998), reprinted at [http://www.directionservice.org/cadre/qta-1a.cfm]
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all children with disabilities.3 The statute also contains detailed due process
provisions to ensure the provision of FAPE. P.L. 94-142 responded to increased
awareness of the need to educate children with disabilities and to judicial decisions
requiring that states provide an education for children with disabilities if they provide
an education for children without disabilities.4
As originally enacted, IDEA contained no specific provision for mediation but
the Department of Education had noted that states had had success in using mediation
as an intervening step prior to a formal due process hearing. However, the
Department encouraged the use of mediation and found that the use of discretionary
grant funds for reimbursement of mediation fees was a permissible expenditure.5
Current Statutory Provisions.
When P.L.105-17, the most recent IDEA reauthorization, was being considered,
Congress indicated its “strong preference that mediation become the norm for
resolving disputes under IDEA.”6 The Senate and House reports further stated that
“the committee believes that the availability of mediation will ensure that far fewer
conflicts will proceed to the next procedural steps, formal due process and litigation,
outcomes that the committee believes should be avoided when possible.”7 This
interest resulted in statutory language on mediation.
Currently, IDEA requires that any state or local educational agency that receives
funds under IDEA must ensure that procedures are established and implemented to
allow parties to disputes involving identification, evaluation, or educational placement
of a child with a disability or the provision of a free appropriate public education
(FAPE) to resolve the disputes through a medication process. At a minimum,
mediation is to be made available when a hearing is requested.8 It is left up to the
states to determine whether or not to allow attorneys’ fees for a mediation.9
IDEA also lists requirements for mediation.
3 For a brief discussion of the entire statute see CRS Report RL31259, Individuals with
Disabilities Education Act: Statutory Provisions and Selected Issues, by Nancy Lee Jones
and Richard N. Apling.
4 PARC v. State of Pennsylvania, 343 F.Supp. 279 (E.D. Pa. 1972); Mills v. Board of
Education of the District of Columbia,348 F.Supp. 866 (D.D.C. 1972). For a more detailed
discussion of these cases and the congressional intent behind the enactment of P.L. 94-142,
see CRS Report 95-669, The Individuals with Disabilities Education Act: Congressional
Intent, by Nancy Lee Jones.
5 Department of Education Policy Letter, EHLR 213:245 (March 15, 1989); Department of
Education Policy Letter, 18 IDELR 279 (August 7, 1991).
6 S.Rep. No. 105-17, 105th Cong., 1st Sess. 26 (1997); H. Rep. No. 105-95, 105th Cong., 1st
Sess. 106 (1997).
7 Id. at 26-27; 106.
8 20 U.S.C. §1415(e)(1).
9 20 U.S.C. §1415(i)(3)(D)(ii).
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! The procedures are to ensure that the mediation process is voluntary on the
part of the parties,10 is not used to deny or delay a parent’s right to a due
process hearing or to deny any other right provided for in part B,11 and is
conducted by a qualified and impartial mediator who is trained in effective
mediation techniques.12
! A local educational agency or a state agency may establish procedures that
require parents who choose not to use the mediation process to meet with a
disinterested party who is under contract with a parent training and information
center or community parent information center or an appropriate alternative
dispute resolution entity to explain the benefits of mediation and encourage its
use. This meeting is to be at a time and location convenient to the parents.13
! The state is required to maintain a list of individuals who are qualified
mediators and knowledgeable in the laws and regulations of IDEA.14
! The state is to pay for mediation costs, including the costs of meeting with
parents to explain the benefits of mediation.15
! Each session in the mediation process is to be scheduled in a timely manner and
in a convenient location for the parties to the dispute.16
! An agreement reached in the mediation process shall be put in writing.17
! Discussions that occur during mediation are confidential and may not be used
as evidence in any subsequent due process hearings or civil proceeding and the
parties to the mediation process may be required to sign a confidentiality
pledge prior to the commencement of the process.18
10 Mediation, then, is voluntary for both the educational agency and the parents.
11 Part B of IDEA, 20 U.S.C. §§1411-1419, contains the grant provisions and requirements
for the provision of education to school aged children with disabilities.
12 20 U.S.C. §1415(e)(2)(A).
13 20 U.S.C. §1415(e)(2)(B).
14 20 U.S.C. §1415(e)(2)(C).
15 20 U.S.C. §1415(e)(2)(D).
16 20 U.S.C. §1415(e)(2)(E).
17 20 U.S.C. §1415(e)(2)(F).
18 20 U.S.C. §1415(e)(2)(G). The House and Senate reports stated that nothing in the Act
was intended to supercede any parental access rights under the Family Educational Rights and
Privacy Act of 1974 (FERPA), 20 U.S.C. §1232g. The reports also provided a sample
confidentiality agreement. S.Rep. No. 105-17, 105th Cong., 1st Sess. 27 (1997); H. Rep. No.
105-95, 105th Cong., 1st Sess. 107 (1997).
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Department of Education Regulations.
The Department of Education (ED) noted in its comments to the IDEA
regulations that although the statute only requires mediation to be offered when a due
process hearing is requested, “States or other public agencies are strongly encouraged
to offer mediation or other alternative systems of dispute resolution prior to the filing
of a request for a due process hearing, and whenever a dispute arises.”19 The
regulations promulgated pursuant to P.L. 105-17 by the Department generally
reiterate the statutory language described above. However, the regulations do clarify
some of the statutory requirements.
The statute, as noted above, indicates that the state is to keep a list of qualified
mediators. The regulations specify how a mediator is to be selected. They require
that if a mediator is not selected on a random, that is a rotational, basis, both parties
must be involved in the selection and agree with the selection of the individual who
will mediate.20 This language was taken from language in both the House and Senate
reports.21
The statutory language requires that a mediator be impartial and the Department
of Education’s regulations also expand upon this requirement. The regulations
provide that a mediator may not be an employee of (1) a local educational agency
(LEA) or a state agency that receives a grant under IDEA or (2) a state educational
agency that is providing direct services to the child who is the subject of the
mediation. The mediator must also not have a personal or professional conflict of
interest. In addition, the regulations state that a mediator who otherwise qualifies is
not considered to be an employee of a LEA or a state agency solely because he or she
is paid by the agency to serve as a mediator.22
Judicial Decisions Regarding IDEA Mediation
There have been few cases discussing the use of mediation under IDEA. The
cases that do exist have largely dealt with the issue of whether attorneys’ fees should
be available for work performed during mediation. Those cases that have examined
this issue have found that attorneys’ fees are allowable. In Masotti and Masotti v.
Tuskin Unified School District23 the court framed the issue as the novel one of
“whether fees are recoverable after a mediated dispute resolution of a child’s
individualized education program, without the need of a requested administrative
19 64 Fed. Reg. 12611 (1999).
20 34 C.F.R. §300.506(b)(2)(ii).
21 “The committee intends that, whenever such a mediator is not selected on a random basis
from that list, both the parents and the agency are involved in selecting the mediator, and are
in agreement with the individual who is selected.” S.Rep. No. 105-17, 105th Cong., 1st Sess.
27 (1997); H. Rep. No. 105-95, 105th Cong., 1st Sess. 106 (1997).
22 34 C.F.R. §300.506(c).
23 806 F.Supp. 221 (C.D. Calif. 1992).
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hearing.”24 In finding that such fees were allowable, the court noted that
congressional intent was to provide the parents of children with disabilities a
substantive right that could be enforced, including a right to attorneys’ fees if the
parents were the prevailing party. This intent was seen as broad enough to permit the
award of fees for services relating to a settlement or mediation.
The rationale of Masotti was echoed by the New Jersey district court in E.M. v.
Millville Board of Education.25 In addition, the Millville court adopted the reasoning
used in a case relating to attorneys’ fees in settlement situations, stating that
“settlement and mediation are flip sides of the same coin.”26 Rejecting an argument
that the parents must request an administrative hearing and that the payment of
attorneys’ fees would have a chilling effect on mediation the court quoted from
another case discussing settlements: “[I]t is just as likely that denying fees would
protract litigation and thereby increase as school system’s liability for fees. One can
easily envision a situation in which the parents’ attorney, knowing that fees are not
recoverable for pre-hearing work performed in the absence of a hearing, would reject
negotiations and attempt to obtain the desired relief through formal proceedings. On
the other hand, if fees are recoverable for pre-hearing work, the parents’ attorney
would have no incentive to resist settlement, and the school system would have an
incentive to settle cases as early as possible.”27
In another case from New Jersey, K.A.L. v. Salem Board of Education,28 the
court also awarded attorneys’ fees for mediation. The situation in K.A.L. differed
from the other cases discussed above in that the mediation had been unsuccessful and
the award was made based on a settlement prior to a hearing.
Newton v. Conecuh County Board of Education29 involved somewhat different
issues although attorneys’ fees were also requested. In Newton the plaintiff had filed
for a due process hearing, agreed to mediation and the mediation agreement was
adopted and incorporated by the due process hearing officer as an order resolving the
issues of the due process hearing request. The plaintiff brought suit to order the
board of education to comply with the mediation order. The district court found that
it was without jurisdiction to hear the case since the plaintiff had not exhausted her
administrative remedies. The fact that the due process hearing officer had adopted
the mediation agreement was not seen as indicating that a due process hearing had
taken place and therefore judicial action was appropriate. The court did not reach the
issue of the plaintiff’s request for attorneys’ fees.
24 Id. at 222.
25 849 F.Supp. 312 (D.N.J. 1994).
26 Id. at 315.
27 Id. at 315-316, citing Rossi v. Gosling, 696 F.Supp. 1079, 1084 (E.D.Va. 1988).
28 1994 U.S. Dist. LEXIS 8897 (D.N.J. June 21,1994).
29 1997 U.S. Dist. LEXIS 6539 (S.D.Ala. March 19, 1997).
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Jose Luis R. v. Joliet Township High School District 20430 was the only case
found on mediation decided subsequent to the enactment of the 1997 IDEA
Amendments although the new statutory provisions did not appear to play a
prominent role in the court’s decision. In Jose Luis the court found the argument
that the mediation agreement qualifies the plaintiffs as a prevailing party and thus able
to receive attorneys’ fees was convincing. The mediation agreement was not seen as
a private settlement simply because an administrative hearing was never held; rather,
the fact that the parties’ agreement was read into the record before a hearing officer
was described as changing the relationship between the parties thus entitling the
plaintiffs to attorneys’ fees as prevailing parties.31 This holding is in apparent conflict
with the Alabama district court’s decision in Newton which had not found the
adoption of the mediation agreement by the due process hearing officer to be
significant.
Pitchford v. Salem-Keizer School District32 used IDEA mediation in a different
manner than the preceding cases. Pitchford involved an action by parents of an
autistic child against the school district for failure to provide their child with a free
appropriate public education. The district court found that the IEP (individualized
education program) for one of the school years at issue was sufficiently flawed to
deprive the child of a free appropriate public education for that year. Rather than
issue a order on the merits, the court ordered the parties to mediation to attempt to
reach an agreement to avoid further litigation.
Use of Mediation in Special Education
Benefits and Disadvantages of Mediation
Mediation for disputes arising under IDEA has been touted as an alternative to
the often costly, and time consuming due process procedures. However,
commentators have seen both benefits and disadvantages to its use. CADRE, the
Consortium for Appropriate Dispute Resolution in Special Education,33 describes the
benefits of mediation in special education as including:
30 2001 U.S. Dist LEXIS 13951 (N.D. Ill. August 29, 2001).
31 The issue of whether or not the parents are the “prevailing party” is of increasing
importance after the Supreme Court’s decision in Buckhannon Board and Care Home v. West
Virginia Department of Human Resources, 532 U.S. 598 (2001). Although this case did not
involve IDEA, it rejected the catalyst theory (the theory that the plaintiffs actions served as
a catalyst to change the behavior of a defendant) as a basis for the award of attorneys’ fees
pursuant to a statutory provision.
32 155 F.Supp. 1213 (D.Oregon 2001).
33 CADRE, a private organization, is funded by the Department of Education, Office of
Special Education Programs. [http://www.directionservice.org/cadre/about.cfm]
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! Families can maintain an ongoing and positive relationship with the school or
and benefit from partnering with educators or service providers in developing
their child’s program.
! Conflicts that arise out of misunderstandings or lack of shared information can
be resolved through mediators helping parents, educators and service providers
to communicate directly with one another. Special education and early
intervention issues are complex and can best be solved by working together.
! Mediation tends to be faster and less costly than adversarial approaches such
as due process hearings and court proceedings.
! Mediation can result in agreements that participants find satisfactory and
research shows that people tend to follow the terms of their mediated
agreements.34
Several commentators have observed that mediation has disadvantages. Some
of these are described as follows.
! Mediation’s goal is to reach agreement between the parties; not necessarily to
guarantee the provision of a free appropriate public education (FAPE). This
use of mediation, therefore, might not support the provision of FAPE.35
! There is often a significant disparity in power and access to information
between parents and school systems and this can lead to the weaker party,
often the low income or less educated party, accepting less than they might be
entitled to.36
! Courts may not examine the merits of a settlement agreement.37
3 4 C A D R E , “ C o n s i d e r i n g S p e c i a l E d u c a t i o n M e d i a t i o n , ”
[http://www.directionservice.org/cadre/medinfo.cfm] See also Office of Special Education
Programs, U.S. Department of Education, “Questions and Answers on Mediation” (Nov. 30,
2000), reprinted at [http://www.directionservice.org/cadre/vet_QAonmediation.cfm] For a
d i s c u s s i o n o f t h e b e n e f i t s o f m e d i a t i o n g e n e r a l l y s e e
[http://www.directionservice.org/cadre/med_benefits.cfm]
35 Steven Marchese, “Putting Square Pegs into Round Holes: Mediation and the Rights of
Children with Disabilities Under the IDEA,” 53 Rutgers L. Rev. 333, 336, 344 (2001).
Another commentator noted a related concern as the fear that mediation may be employed
when issues of law need to be decided. Edward Feinberg and Jonathan Beyer, “The Role of
Attorneys in Special Education Mediation,” [http://www.directionservice.org/cadre/roase.cfm]
36 Steven Marchese, “Putting Square Pegs into Round Holes: Mediation and the Rights of
Children with Disabilities Under the IDEA,” 53 Rutgers L. Rev. 333, 352-356 (2001);
Andrea Shemberg, “Mediation as an Alternative Method of Dispute Resolution for the
Individuals with Disabilities Education Act: A Just Proposal?” 12 Ohio St. J. on Dispute
Resolution 739, 748-751 (1997); Jonathan A. Beyer, “A Modest Proposal: Mediating IDEA
Disputes Without Splitting the Baby,” 28 J. Law & Education 37, 50-52 (1999).
37 Steven Marchese, “Putting Square Pegs into Round Holes: Mediation and the Rights of
(continued...)
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! There is a lack of national standards for training and vagueness in state-specific
standards of certification.38
Use of Attorneys in IDEA Mediation
One of the most litigated and discussed issues regarding IDEA mediation is
whether attorneys should be permitted to participate in mediation. IDEA is silent on
this issue, leaving the decision on whether or not to allow attorneys up to the states.
It should be emphasized that issues relating to the use of attorneys apply both to
parents seeking legal representation and to school districts seeking counsel from their
attorneys. The states vary in their approaches with one study indicating that at least
eight states formally exclude or discourage attorneys from participating in mediation.39
Various benefits and disadvantages have been seen concerning the use of attorneys.
Proponents for the use of attorneys have made the following arguments.
! Attorneys can overcome power imbalances between school districts and
parents.
! Attorneys may help to facilitate agreements.
! Not allowing the use of attorneys may lead attorneys to counsel clients not to
participate in mediation or to reject proposed agreements that they were not
involved in.40
On the other hand, those who oppose the use of attorneys in mediation have made the
following arguments.
! Attorneys maintain an adversarial posture during mediation, polarizing
discussions, and making unreasonable demands.
37(...continued)
Children with Disabilities Under the IDEA,” 53 Rutgers L. Rev. 333, 358-360 (2001).
38 Edward Feinberg and Jonathan Beyer, “The Role of Attorneys in Special Education
Mediation,” [http://www.directionservice.org/cadre/roase.cfm]; Jonathan A. Beyer, “A
Modest Proposal: Mediating IDEA Disputes Without Splitting the Baby,” 28 J. Law &
Education 37 (1999).
39 Edward Feinberg and Jonathan Beyer, “The Role of Attorneys in Special Education
Mediation,” [http://www.directionservice.org/cadre/roase.cfm] The states listed in this
category were Alaska, Arkansas, Delaware, Idaho, Maine, New Hampshire, Pennsylvania,
and Washington.
40 Id. This article contains a number of comments from state and local special education
mediation directors. For example, the mediation director in Kentucky was described as
arguing that attorneys give mediation a focus and are able to defuse tension. Other comments
indicated that attorneys can help the parties determine reasonable expectations.
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! Attorneys are not necessary to overcome power imbalances as mediators can
protect the fairness of the process or parents could be trained to advocate for
themselves.
! The use of attorneys can shift the emphasis of mediation from one to one
discussions by the parties.41
Some states, while not prohibiting the use of attorneys in mediation, have limited
their involvement to providing guidance prior to the mediation, providing telephone
consultation during mediation, and reviewing the mediation agreement. This
approach could arguably create a less adversarial atmosphere during mediation.
However, it could also limit the ability of a lawyer to understand the dynamics of the
mediation and how issues had been resolved.42
The CADRE article on the use of attorneys also noted several practices which
they termed innovative. These included the practice in Wisconsin of training not only
mediators but also all parties to mediation, including attorneys, and the practice in the
state of Washington of privatizing the mediation office.43
41 Id.
42 Id.
43 Id.