Special Education Tip of the Day: The Mediation Agreement

ACDL News, Disability Law, Education No comments

By Rose Daly Rooney, Legal Director 

Whew! You reached an agreement about your child’s special education during the mediation session.  Congratulations! Your work is done, right? Well, not yet.  Now, you must actively participate in writing the Mediation Agreement to ensure that it is:

  • accurate,
  • complete,
  • enforceable, and
  • does not waive important rights.

Even though the mediation process is informal, written mediation agreements are contracts that have full legal force and 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.  For this reason, it is very important for unrepresented parents, whenever possible, to consult with an attorney who will explain and give legal advice about the Mediation Agreement prior to signing it.  This is particularly true because mediation addresses disagreements about your child’s critical rights to a free appropriate public education (FAPE) in the least restrictive environment under the Individuals with Disabilities Education Act (IDEA).

As you work with the mediator and school representative to write the Mediation Agreement, ask yourself these questions:

  1. Is every agreed-upon term in the Mediation Agreement? For example, if you and the school agreed to compensatory education (a remedy that can be provided to compensate a child for the past denial of FAPE), a change in your child’s placement, staff training, and development of an anti-bullying policy, then there should be at least one paragraph describing each of these terms.  For more information about compensatory education, see ACDL’s future blog post in this series on IDEA Remedies.
  2. Are the details about each term in the Mediation Agreement? The details count!  For example, if you agree to a staff training, does the written agreement cover:
    • whether attendance is mandatory;
    • which staff will be trained;
    • whether and how training will be provided for new employees;
    • by what date the training will be completed;
    • whether the training will be repeated, and how frequently it will be repeated;
    • how much time will be devoted to the training (e.g. 2 hours);
    • the type of training (e.g. in-service);
    • by what type of training provider;
    • what topic(s) and information will be taught during the training; and
    • whether the school will cover the costs, if there are costs.

Leaving out important details may leave you dissatisfied with the mediation results.  If it was important to you that a specific anti-bullying expert or advocacy organization conduct the training, then the agreement should include that detail.  If you only talked about who would do the training during mediation—but did not include that detail in the agreement—you will not be able to enforce that detail.

 

  1. Does the Mediation Agreement use language that creates an obligation?

Language that expresses an intention or a wish does not create a legal obligation.  For example, language such as “school district will make best effort to,” “the school district may,” or “the school district will try to” expresses intention only.  Instead, use language such as “the school district will” or “the school district shall” when describing the areas of agreement.

 

  1. Do any of the words used to describe the agreement need to be defined in the Mediation Agreement?    Many terms that are used in a Mediation Agreement, such as   Independent Educational Evaluation, are already defined by the IDEA. Other terms will not be defined in the IDEA and may have a specific meaning to the parties.  For example, you may reach agreement that school nursing services will be provided to manage your child’s diabetes consistent with diabetic management guidelines.  But are you and the school on the same page about what diabetic management guidelines means?  You may find that you defined diabetic management guidelines as your child’s endocrinologist’s written management plan and the school meant it to be the American Diabetes Association 2019 Standards of Care for Diabetes Management.

 

Agreements can define key terms.  To avoid future disputes about the Mediation Agreement, the agreement should define key terms. Defining key terms makes the Mediation Agreement clearer for future personnel who need to follow it or a judge who needs to enforce it.

 

  1. Is there language in the Mediation Agreement that you don’t understand or didn’t agree to? If you don’t understand a term added by the school or written by the mediator, ask questions.  Signing an agreement that includes terms, as written, which you don’t understand can have a negative effect on your child’s rights. Schools often include what they consider “standard terms” in Mediation Agreements.  And some of those terms may, indeed, be standard. But other terms may affect your child’s future rights and choices, and you need to be very cautious about such terms.    Examples of these kinds of terms include:  requiring you to disenroll or never reenroll your child in the school district; ending services before your child graduates with a regular diploma based on standards; severely limiting your ability to communicate with the school district; or limiting your ability to exercise your IDEA procedural rights.

Tips for if you decide to retain or consult an attorney to review your mediation agreement before you sign it:

  • Retain an attorney who can represent you at the mediation or is available for a consultation during the mediation or soon after the mediation.
  • Tell the mediator in advance if you are bringing an attorney to the mediation; if you will be sharing the draft Mediation Agreement with an attorney during the session; or if you will want to wait to sign the Mediation Agreement until you have met with an attorney.
    • You want to avoid surprises on the day of mediation. If one party is represented, it may affect the other party’s decision about whether to bring an attorney.  The school district may cancel the mediation if you show up with an attorney and they could have asked their attorney to attend.
    • If you intend to consult with an attorney during a caucus, the mediator may want you to bring the form agreeing to keep the mediation offer confidential that is also signed by the attorney.
  • If you are consulting with an attorney during or after the mediation, make those arrangements before the mediation to avoid unnecessary delay. For example, ask the attorney about availability during the day of the Mediation for a phone consultation, or for an appointment the day after the scheduled Mediation to review the Mediation Agreement.

To find an attorney to assist you with Mediation, you may search  on the directory of the Council of Parent Attorneys and Advocate (COPAA) by selecting the filter for “attorney.”  You may also call ACDL to request legal services.

Related Posts: Mediation: What is it? and Preparing for Mediation.

Next Post:  Enforcing Mediation Agreements    

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