Special Ed Disputes: Litigate, Negotiate, or Mediate?

If you have attended a Wrightslaw Special Education Law and Advocacy program or Boot Camp, you know we talk about conflict and other obstacles to effective advocacy.

We ask a series of questions.

1. How many of you believe parents and school personnel should be able to work together on behalf of the child, without disagreements, disputes or conflict?

Many hands fly up. You are on firm ground!

2. How many of you have had a disagreement, dispute or conflict with a co-worker, supervisor or boss?

More hands fly up. Laughter ripples through the room.

3. How many of you have had a disagreement, a dispute or conflict with your spouse or partner?

All hands fly up as the room fills with laughter.

Most of you have had conflict with people you work with. All of you have had disagreements and conflict with people you love, people you live with. Most conflict revolves around two issues: work and money.

So why are you surprised and distraught when you go to an IEP meeting and you have a disagreement, dispute or conflict with a person on the other side of the table?

Conflict between parents and school officials is normal and predictable.

Do parents want the “best” education for their children? Of course they do!

Are schools required to provide children with the “best” education? Are schools required to “maximize a child’s potential.” No. Schools are only required to provide children with disabilities with an “appropriate” education – and what “appropriate” means has been litigated since the law was enacted in 1977. School officials are also concerned about the cost of providing that “appropriate” special education and about balancing their budgets.

Do you see how the perspectives of parents and school officials are necessarily different? Do you see potential sources of conflict over work and money?

Economic issues lead to conflict and adversarial relationships between spouses, between workers and employers, between patients and HMOs, between taxpayers and the IRS, between private industry and federal regulators. Economic issues lead to conflict and adversarial relationships between parents and school officials.

When emotions run high, as they often do in special education and divorce disputes, it becomes more 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? Sadly, the answer is often “no.”

A final order that requires one party to provide a service or pay a sum of money to the other party may not end the conflict. Appeals follow. Resistance to the order strengthens. The losing party feels victimized by the Court and refuses to pay. Alternatively, the losing party stalls, which leads to mistrust and more conflict.

After the U. S. Supreme Court issued their landmark decision in Brown v. Board of Education, some Virginia school boards closed their schools. These school boards used massive resistance to avoid complying with the decision.

Parents negotiate with the school on their child’s behalf for special education services. As Roger Fisher says Getting to Yes : Negotiating Agreement Without Giving In, “Like it or not, you are a negotiator. Negotiation is a fact of life.

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, mediated settlements are rarely breached. The parties have an emotional investment in the success of the agreement.

Negotiation and mediation are not easy. As humans, our natural responses to conflict are to fight or take flight. Despite the difficulties, we encourage parents and school officials to use negotiation and mediation to resolve disputes about educating children with disabilities. In most cases, the outcomes are better than in litigation.