The Beacon - The Journal of Special Education Law and Practice (Summer 2001 Issue)

Welcome to the first issue of The Beacon, the new electronic journal of special education law and practice from Harbor House Law Press.

Special education law is an exciting, rapidly developing area of law. The Beacon publishes articles and essays for attorneys and advocates who represent children with disabilities and others who are interested in special education legal topics.

Each issue will focus on a theme and include practical and theoretical articles. Future issues of The Beacon will address various topics, including class action litigation, document and exhibit preparation, and damages.

The Beacon seeks to ensure that all children with disabilities receive a free appropriate public education as defined by the Individuals with Disabilities Education Act of 1997 and that children with disabilities are free from discrimination. We believe the dialogue in this journal will help to shape the future.

Our goal is to publish interesting, useful, readable content. If you are interested in special education law and practice, we think you will enjoy reading The Beacon.

Theme: Negotiation and Mediation v. Litigation

Conflict between parents and school officials is normal and predictable. Most parents want the "best" services for their children while school officials must provide "appropriate" services as they also balance their budgets.

These economic issues lead to conflict and adversarial relationships between parents and school officials. Similarly, economic issues lead to conflict between patients and HMOs, between persons with disabilities and the Social Security Administration, between taxpayers and the IRS, between private industry and federal regulators, and between spouses in alimony and child support cases.

When emotions are strong, as in special education cases and divorce cases, it is more likely that a Judge will resolve issues. After a court issues an order, what happens next? Does the conflict end? Do relationships improve? Does the child receive better services? In many cases, the answer is "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, leading to increased conflict and mistrust.

After the U. S. Supreme Court issued the landmark decision in Brown v. Board of Education, some Virginia school boards simply closed their schools. This behavior was massive resistance.

In mediation and negotiation, 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 settlement.

Mediation is not easy nor is it natural. Natural responses to conflict are fight and flight. You must learn to mediate. Despite these difficulties, we encourage parents and school officials to use negotiation and mediation to resolve disputes about educating children with disabilities. In most cases, the outcome is better.

You must learn to mediate. Despite these difficulties, we encourage parents and school officials to use negotiation and mediation to resolve disputes about educating children with disabilities. In most cases, the outcome is better.

As Roger Fisher says, "Like it or not, you are a negotiator. Negotiation is a fact of life."

Feature Articles

The articles in this first issue of The Beacon: The Journal of Special Education Law and Practice were selected to help you learn how to use negotiation and mediation to resolve special education disputes.

To learn why mediation seems to be a game of poker, but is actually a game of hearts, read Play Hearts, Not Poker. In Play Hearts, Jennifer Bollero writes from the unique perspective of an attorney who is also the parent of a child with autism. Ms. Bollero teaches parents how to negotiate better IEPs for their children. She offers insights and practice tips for attorneys and paralegal advocates who represent parents and children with disabilities. Do not overlook "Eight Steps to Better IEP Meetings" in Play Hearts, Not Poker.

Dee Alpert has litigated federal class action sex discrimination employment suits, administrative sex and race discrimination proceedings, and special education cases. In Tactics & Strategies in Mediations and Negotiations, Ms. Alpert offers excellent advice about positions, offers, and dealing with "junk tactics." You will learn more about the advantages of mediation over litigation.

When you read The Problem Solving Lawyer by Michael Palmer, you will discover the secret of creative mediation when an executor divides 17 cows in a seemingly impossible manner. Mr. Palmer studied negotiation and mediation at Harvard and Confluence Northwest in Portland and has written extensively on the subject. He has taught numerous courses and workshops on negotiation and mediation and is CEO of The Negotiation Center in Middlebury, Vermont.

More Articles About Mediation and Negotiation

Learning to Negotiate is Part of the Advocacy Process by Brice Palmer. Negotiating solutions to disputes saves time and money. Most of our experience is in the civil area, but the techniques and skills in special education cases are the same. By using these techniques, we rarely are forced to take a special ed case all the way to a hearing.
Here are a few techniques that have worked for us. Perhaps they will be helpful for you . . . Read more

Seven Steps to Effective Mediation by Diana Santa Maria and Marc A. Gregg. Settling a case before trial often involves mediation . . . a process in which a neutral third party called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is a nonadversarial process designed to help the disputing parties reach a mutually acceptable agreement. In mediation, decision-making authority rests with the parties . . . Read more

Departments

From the Editor

Future issues of The Beacon will focus on damages, class action litigation, documents and education records, and revisiting FAPE. We welcome article submissions and ideas for articles and issues. If you are interested in contributing an article, please review our submissions policy.

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