Meeting special ed concerns through mediation

Listen to this article

Once simply a requirement under federal law, Wisconsin lawyers have embraced mediation as an alternative to resolving special education disputes.

“We would not probably have the system if the law did not require it. Certainly, we would not have it for free,” said Jeff Spitzer-Resnick, managing attorney for the non-profit advocacy group Disability Rights Wisconsin.

Wisconsin’s program was originally headquartered at Marquette University, but is now administered through the Wisconsin Special Education Mediation System, which has a panel of 23 trained mediators available for free to parents and school districts.

Eligibility

Families are eligible for the service if their student qualifies for special education or if the dispute is over whether the student qualifies for special education. Other disputes have dealt with everything from busing to a student’s right to a free, appropriate public education.

Defining the “appropriate” part of that “free and appropriate” equation is the focus of many disputes, said Jane Burns, intake coordinator and administrator for Wisconsin Special Education Mediation System.

“The parents think the child needs the Mercedes, and the district says, ‘We really only need to provide the Ford,’ ” Burns said.

Cases often end up in mediation after communication breaks down or someone feels a trust has been broken.

As a mediator, it’s Kay Vance’s job to find the best way to move forward from that point.

The sessions usually include an opportunity to discuss what went wrong, an opportunity attorney Patricia Engel appreciates.

“They acknowledge the past, but it’s not a gripe session. We move forward, and that’s where we can get creative,” said Engel, who represents families in mediation through her work with Schott, Bublitz & Engel S.C. in Brookfield.

Participants

Lawyers often accompany parents and school district representatives, but sometimes the process includes just Vance and the two parties. Vance also prefers that someone who works with the child be at the bargaining table, although that is not required.

Typically, the parties break into groups — parents and their attorney, school district and its lawyer — with the mediator going between the groups, although that depends on the mediator.

Sessions generally last all day.

Throughout the mediation, Vance stresses the importance of keeping the child in mind.

“It’s important for everyone who goes into mediation to continually remind themselves that the focus is the student,” said Vance, a former special education teacher, who has a private practice in Mequon. She has mediated more than 180 cases since 1997.

For Vance, focusing on the student is the most important part of mediation, even more important than the forms that might be involved in reaching their legally binding agreement.

“If they’re doing right by the student, they’re doing right by the law. It needs to be the student and not the form that drives the process,” Vance said.

Attorney Christy Brooks agreed.

“Everyone’s rule first, middle and last is to say, ‘We’re here to reach an agreement. You’re not making the argument to win the point; you’re presenting options and facts to reach an agreement,” said Brooks, a shareholder with von Briesen & Roper in Milwaukee, who has represented school districts for more than 30 years.

Cost Effective

“For people who work with children with disabilities, everybody wants to do the right thing.

Everybody has different ideas. I think the best part of mediation is getting back to thinking everyone is working together.”

Beyond that, Brooks said, mediation benefits families and school districts because it is more economical than going to court, it’s faster and it’s mutually satisfactory.

From a cost perspective, mediation is less taxing financially and emotionally.

“Schools’ main interests are in education and helping kids,” Brooks said. “If they can solve disputes, not just with less financial expense but also less emotional expense, it helps the pupil.”

And, with mediation, both sides can help find the solution that best benefits the student.
“Everybody walks out of the room feeling good because a solution wasn’t forced on them,” Brooks said. “And that means the outcome is more durable, and you’ve got a plan for the future.”

Engel keeps the same goal in mind when she represents families in special education mediation.

“If the parties can work it out in mediation, they have a much better chance of getting back on track, being comfortable sending the child to school,” Engel said. “It might not be in a one-time session. It might take a couple, but most of my cases are able to resolve.

“It’s a give and take. And the end result, if we’re successful, is a written agreement that can guide the parents and the school district in the future,” Engel said.

In the few cases where no agreement is reached, the mediation usually at least ends with a chance to have restored communication and, maybe, even trust. That can be vital in trying to settle sometimes volatile issues.

“We are able to help the parties take some of the emotion out of it,” Engel said.