Even if every effort is made to resolve a special education due process dispute, parties may still find themselves headed towards a hearing. To prevent unnecessary litigation and create an opportunity for the parties to resolve their dispute, the IDEA requires a resolution session, convened by the LEA, unless it is waived. 34 CFR 300.510. The meeting’s purpose is for the parties to discuss the due process complaint, and the facts forming the complaint’s basis, so that the LEA has an opportunity to resolve the dispute. Id. Below, please find 4 tips to help prepare for a resolution session.
1. Quickly Organize All Files and Relevant Documents to Analyze the Case.
Parties to a due process complaint often enter into the case with preconceived notions regarding what the case’s exact “issues” that form a basis for the dispute. While it is important to understand these issues, it is equally important to enter the resolution session prepared to discuss the student’s entire educational history. To do so often requires ensuring that a complete copy of all the relevant documents exists and the participants to the resolution session have an understanding regarding the student, his/her needs, and the various potential options for resolution. It is also important to understand the relative strengths and weaknesses in each case so that a clear understanding of liabilities exists to assist the parties in making the best decision possible during the resolution session. Finally, it should be noted that the LEA is required to convene a resolution meeting within 15 days of receiving notice of the due process complaint (or within seven (7) days for expedited matters which are generally related to discipline matters). Id. This short timeline requires quick action.
2. Embrace Curiosity as a Problem-Solving Method.
It can be easy to assume that a party’s position is clear cut and that the only way to resolve the dispute is to give the party what they have been demanding since the disagreement first surfaced. However, dogmatic adherence to such assumptions can limit the universe of potential settlement options. Also, parents and student’s counsel may not be aware of the various potential educational options offered by an LEA. Curiosity can help both parties open up creative approaches to problem solving during a resolution session. Asking that a party to clarify their motivation for a particular request can show that there is an interest in understanding and resolving the conflict. Additionally, sometimes the parties to a dispute can often become frustrated with each other. Occasionally movement towards resolution can be achieved by including new team members in the resolution session that can offer a fresh perspective to a stale dispute.
3. Designate a Facilitator.
Often times resolution sessions can be disorganized, which can limit the meeting’s productivity. It is recommended that the team approaching the resolution session designate a meeting facilitator to maximize the meeting’s efficiency and productivity. The facilitator should be prepared and provide a measured approach to the meeting. It is likely that the student’s representatives are already suspicious of the LEA. Providing a facilitator who at the very least appears neutral can help instill trust and increase the opportunities for a resolution. While the LEA can’t bring an attorney unless the student does, the LEA team should include various IEP members and a person with decision making authority. Id. A facilitator could be selected from any one of these individuals.
4. Consider Confidentiality.
Unlike mediation, resolution sessions are not generally automatically confidential. This means that information shared, or comments made, during the resolution session may be later used by either party. Letter to Cohen, 67 IDELR 217 (OSEP 2015). It is also important to note that an LEA may not demand that the session be confidential without the other party’s agreement. Letter to Baglin, 53 IDELR 164 (OSEP 2008). However, the parties may agree to keep the session confidential by entering into a confidentiality agreement prior to conducting the resolution session.