Special Education Tip of the Day: Enforcing the Mediation Agreement

ACDL News, Disability Law, Education No comments

By Rose Daly Rooney, Legal Director and Amanda Glass, Equal Justice Works Fellow

You learned the basics about mediation in Mediation: What is it?. You received information and tips to help you get ready for mediation in Preparing for Mediation.  You picked up guidelines about writing a good settlement agreement in The Mediation Agreement.  Hopefully you will use this information to have a successful mediation that results in a Mediation Agreement that resolves your dispute.  Based on ACDL’s experience, most often, school districts and charter schools adhere to the terms of Mediation Agreements without parents needing to take any enforcement action.  However, there may be cases when a school does not comply with a mediation term.

 

Is a Mediation Agreement Enforceable?

Even though the mediation process is informal, written Mediation Agreements are contracts that have full legal forceand can affect your child’s rights and the school’s responsibilities in the same way as a due process hearing decision or a court order.  The parties—parents and public education agencies—may file a lawsuit in state or federal court if the other side does not follow an important term of the agreement.

 

How Do I Enforce a Mediation Agreement?

Mediation Agreements can be enforced in state superior court or in federal district court. You can file a lawsuit to enforce a Mediation Agreement without the assistance of an attorney, although if possible, hiring an attorney is recommended. If you cannot hire an attorney to represent you through the entire lawsuit, it may still be worth your time and money to hire an attorney just for a few hours to review the settlement agreement and help you draft your complaint and file it with the court. You may be able to secure free or low-cost legal aid through organizations like the Arizona Legal Centeror Community Legal Services.

If you decide to file the lawsuit yourself, you can find guidance and resources through self-service centers available for both stateand federalcourt. Keep in mind that there are filing fees and other court costs associated with filing a complaint in court, although you may be able to apply for a waiverof these costs.

When Should I File a Lawsuit to Enforce an Agreement?

It is extremely frustrating when, after all your hard work and negotiation, a school fails to hold up its end of an agreement. However, it can be costly and time-consuming to ask a court to enforce a Mediation Agreement, so it is important to think through the potential costs and benefits before filing a lawsuit.

Let’s consider an example.  In our first blog post about mediation, we introduced you to Carlos.  Carlos has autism and runs from the classroom when he is frustrated by his academic work or overwhelmed by the noise in the cafeteria or during assemblies. His grandmother—who has power of attorney while his mother is deployed—did not agree with the school’s proposed plan for addressing the behavior and providing adequate safety measures in Carlos’ Individualized Education Program (IEP).  She suggested techniques recommended by an independent education evaluation (IEE), which the school has rejected.

Let’s assume Carlos’ grandmother went to mediation over this dispute and the parties reached agreement.  The Mediation Agreement included that the school district would amend the IEP to include the specific safety measures recommended by the IEE and that the school would conduct a Functional Behavioral Assessment (FBA) on Carlos by a certain date. Let’s say the school district is two (2) days late in completing the FBA. While it may be true that the school has not fully adhered to the agreement, the relief Carlos’ grandmother could get in an enforcement action for this breach is unlikely to offset the expense and burden of filing the lawsuit in the first place. However, if the school refuses to add all the effective safety measures agreed upon in the Mediation Agreement, a lawsuit may be warranted.

To avoid the cost and hassle of filing a lawsuit, Carlos’s grandmother may wish to first try contacting the school directly to ask them to adhere to the Mediation Agreement. Parents and guardians can get good results through informal negotiation, such as writing a letter stating they will file an enforcement action if the school has not complied with the agreement terms by a certain date. This allows the parent to persuade the school to follow through with what was agreed to without incurring the cost of a lawsuit.

 

 

Related Posts:

Mediation What is it?

Preparing for Mediation

The Mediation Agreement

 

 Next Post: Filing a State Complaint

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