Settling Special Education Cases: Strategies
and Techniques for Negotiating
Effective Written Agreements
by
Jose L. Martín, Attorney at Law
RICHARDS LINDSAY & MARTÍN, L.L.P.
13091 Pond Springs Rd., Suite 300
Austin, Texas 78729
Tel. (512) 918-0051
Fax (512) 918-3013
[email protected]
Copyright © 2015 Richards Lindsay & Martín, L.L.P.
Dispute Resolution with Unrepresented Parents
Staff training on conflict resolution strategies and techniques
Poor handling of an initial parental concern by a school staffperson can be
the beginning of a steady loss of trust and a worsening relationship that
culminates in litigation. Schools, however, cannot realistically expect staff with
no training on handling complaints and conflicts to simply learn basic conflict
resolution skills on the job. Many service industries have learned that good
customer service depends on how staff deal with customers and their
complaints. To that end, companies ensure that staff dealing personally with
customers receive some level of training on customer service and conflict
resolution. Public schools, themselves a service industry of sorts, should follow
the private sector’s lead and provide school staff with conflict resolution training
also.
The best strategy for dispute resolution with parents is not allowing a
concern to escalate to the point that it becomes a dispute. If that is not possible,
then the goal is to manage and resolve the dispute early, before the parent-school
relationship as a whole is threatened. If IEP team members learn and utilize
simple conflict resolution strategies, they can drastically reduce the possibility of
a matter escalating to litigation. Schools currently provide IEP team members
with a variety of curriculum, instructional, and even legal training, but often
overlook staff training on conflict resolution from a customer service orientation.
Explore this proactive step by researching the numerous training programs
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available in your community and exploring the possibility of adding this type of
training to your existing staff development programs. This type of training
program will pay for itself many times over if it helps avoid just one due process
hearing.
Parent liaisons/Ombudsmen
The idea of designating a particular staffperson to serve as a parent liaison
or conciliator has been put into effect by school districts under a variety of
formulations. Larger school systems may choose to create a position for the
purpose of assisting parents and IEP teams in resolving their differences. The
notion is that a staffperson unrelated to the actual dispute and not an employee
of any particular campus can bring objectivity to a conflict and fresh approaches
and ideas. Parents can resort to the liaison to assist with conflicts with campus
personnel or related service providers. In large school districts, these staffpersons
can bring campus compliance concerns to central office administrators. With
proper training in conflict resolution techniques, parent liaisons can bridge
communication difficulties, make campus staff aware of available resources,
assist parents in understanding their rights, help access community programs, or
just lend an ear to a frustrated parent.
In some school systems, these positions actually take the form of an
informal mediator that functions within the IEP team process to assist the team
in reaching consensus. In smaller school systems, a staffperson with other job
duties can be provided specific mediation and conflict resolution training, or a
volunteer group of experienced special education parents could be selected to
assume liaison functions.
Yet another twist on the strategy is to set up a special education “hotline”
where parents can call and ask questions, raise concerns, and generally ask for
assistance outside of their child’s campus and IEP team. The hotline is manned
by staff that take down notes and information and return the parents’ call with a
response. The hotline staffpersons, however, have to make clear to parents that
they cannot speak for the IEP team or change its decisions, but that they are able
to answer basic questions and take information necessary for the special
education department to respond. Larger districts may create a position to help
manage critical cases, such as those in due process or in danger of escalating to
due process complaints.
Assigning parent mentors to parents in need
A variation on this strategy is to pair all new parents of special education
students with a mentor parent who helps guide the “beginner” parent through
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the sometimes overwhelming IEP team process. Another variation is for school
districts to develop relationships with reasonable parent advocates and take the
initiative of involving such a person in a dispute, especially in situations where a
parent is assuming clearly unreasonable or unrealistic positions. In these
situations, a good advocate can be invaluable, since a parent is much more likely
to be responsive to a fellow parent that is not an employee of the school.
Preparing for potentially disputed IEP team meetings
School staff faced with a potentially contentious IEP team meeting must
prepare for the meeting as if for a formal mediation session. Pre-meeting
staffings are essential to accomplish some or all of the following tasks:
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Draft tentative IEP goals and objectives for IEP team discussion
Anticipate problem issues
Brainstorm and develop potential proposals and contingency plans
(alternate proposals or options)
Prepare documentation of student progress
Review new assessment data
Develop a meeting agenda
Gather relevant campus-based information
Review relevant federal and state regulations
Confirm that proper notice of the IEP team meeting has been sent and
received by the parents
Consider current parent concerns (if already voiced)
Ensure attendance of all IEP team members and participants
Ensure availability of a meeting site (preferably quiet and comfortable)
Most of the preparation strategies applicable to mediations (see below)
also apply to prepare for contested IEP team meetings. As simple as this strategy
may sound, too many important IEP meetings are held with little or no staff
preparation. Worse yet, on the day of the meeting, IEP team members arrive late,
forms have to be located at the last minute, no one at the front office knows to
direct the parents to the meeting room, etc. These details tell parents that the
school is disorganized, and promote a perception that the meeting, and therefore
the student, is not considered important. Schools cannot leave that impression
and expect parents to trust in their efforts to provide appropriate educational
programs.
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The New Dispute Resolution Opportunity—Resolution Sessions
IDEA 2004 offers a new opportunity for resolving disputes after a hearing
request is filed. IDEA 2004 contains a new provision requiring the school and the
parents to meet in a “resolution session” to discuss the parents’ complaint within
15 days after the complaint is received, unless they agree in writing to waive the
meeting or to attempt mediation. §615(f)(i)(IV). If the complaining party amends
their complaint notice, the timeline for the resolution session commences from
the date of the amended complaint notice. §615(c)(2)(E)(ii).
Unless waived, the session is a prerequisite to the opportunity for a
hearing. The law now states that the school must convene the resolution session
and include in it a representative with “decisionmaking authority” on behalf of
the school. §615(f)(i)(II). “Relevant members of the IEP Team who have specific
knowledge of the facts identified in the complaint” must participate. §615(f)(i).
Attorneys are not welcome at the resolution session. The law states that
the school “may not include an attorney of the local educational agency unless
the parent is accompanied by an attorney.” §615(f)(1)(i)(III). At the meeting, “the
parents of the child discuss their complaint, and the facts that form the basis of
the complaint, and the local educational agency is provided the opportunity to
resolve the complaint . . .” §615(f)(1)(B)(i)(IV). If a resolution is reached at the
session, the parties must enter into a legally binding agreement signed by the
parties and enforceable in state or U.S. district courts. §615(f)(1)(B)(iii). Either
party “may void such agreement within 3 business days of the agreement’s
execution.” §615(f)(1)(B)(iv). The hearing timeline commences if the school “has
not resolved the complaint to the satisfaction of the parents within 30 days of the
receipt of the complaint . . .” §615(f)(1)(B)(ii). Thus, the school is not obligated to
offer to resolve the complaint at the resolution session proper, but may consider
its options and offer to resolve the complaint up to 15 days after the session.
From the parties’ perspective, the resolution process represents an
opportunity to discuss the dispute, albeit without the assistance and direction of
a trained mediator. At the very least, the session can begin the process of the
parties discussing the case. In some cases, the offers and counteroffers made in
the session can lead to future resolution, if the matter is not resolved at the
session itself. Even if the session does not end in agreement, the school has
another 15 days to come up with an offer satisfactory to the parents.
Points on Resolution Sessions
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Remember that there is no confidentiality protection to resolution session
discussions, so parents can testify at hearing about statements made in the
session.
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You may want to have school attorneys create a form for agreements
reached in resolution sessions, with simple waivers/releases of liability,
and reminders of the three-day withdrawal period.
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Focus on having the parent state with specificity what terms would lead
to the dropping of the due process hearing request.
Dispute resolution with parents represented by counsel
Assessing a case quickly and contacting parents’ attorney to indicate a
willingness to explore informal resolution
As soon as school staff are informed that the parents have retained an
attorney, the school’s attorney should be contacted, and a copy of the file made
for his or her review. As school attorneys review the file, they can begin to assess
whether the case contains any problem areas. The file review is coupled with
interviews with staff to answer remaining questions about the student and the
file, as well as to begin to determine the issues potentially in dispute. The school
attorney should contact opposing counsel quickly thereafter, to ascertain the
nature of the parent attorney’s involvement. Is litigation being threatened? Is a
due process hearing request about to be filed? Is the attorney merely assisting the
parents informally with the dispute? In any case, the school attorney should
indicate to opposing counsel that the school is willing to explore informal means
in an effort to resolve the dispute without litigation. The initial conversation can
also help identify the specific issues in dispute (if the parent attorney has already
reviewed the file and is familiar with the case at this time).
It is key at this stage to direct the parents’ attorney toward the most
informal possible means for resolving the dispute first, if at all possible. If
litigation has not yet been filed, a statement indicating that the school will
seriously address the dispute and make honest efforts at informal resolution may
avoid, at least temporarily, the initiation of litigation. This gives the school time
to investigate the case and develop proposals and options for resolution. In many
cases, a school’s invitation to attempt to resolve the case informally is welcome
by the parents, many of whom may be nervous and apprehensive about the
possibility of having to go to a hearing to accomplish a resolution of the dispute.
This is also the time to begin discussing a possible forum for resolving the
complaint. In some cases, the attorneys can reach an agreement to assist their
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clients from outside the IEP team process to allow the parties, with legal
guidance, a second chance to address the dispute. In other cases, as discussed
below, the attorneys may want to participate in an IEP team meeting to
personally help the parties reach consensus. Even if a due process request has
already been filed, the parties can agree to the preceding methods, or explore the
drafting of a settlement agreement (without meeting or mediation) or a formal
mediation session through the state education agency’s IDEA-mandated
mediation procedure.
At this stage, the school can learn whether the opposing attorney is
experienced in special education or a relative newcomer to these disputes.
Attorneys experienced in special education cases will likely have personal
preferences for a forum to resolve a dispute, while a beginner will have to be
walked through the various options available to attempt resolution. A common
question asked by school staff is whether it is easier to deal with an attorney
inexperienced in special education matters. The answer is yes and no. An
inexperienced attorney may not identify potential problem areas in the file, but
may also have misconceptions about the law and its requirements. Moreover,
although attorneys new to the special education dispute process may be willing
to explore a variety of conflict resolution avenues, they may also be less capable
of recognizing a good deal when presented with one. Lack of knowledge can
breed mistrust, which can render resolution more complicated. To summarize,
however, it is crucial that the school’s attorney become involved early in a
parent-school dispute, assess the relative merits of the case, contact opposing
counsel, and begin an early discussion of potential avenues for resolving the
disputed issues, hopefully before litigation is initiated.
Reaching a settlement agreement without meetings or mediation
If litigation has already been initiated, there are still various ways to
employ alternatives to administrative hearings and court appeals. A highly
preferable means for resolving special education hearing requests consists of
school attorneys and parent attorneys hashing out a written settlement
agreement addressing and disposing of the issues in dispute. This occurs, of
course, after careful discussion and deliberation with the respective clients.
Generally, a good format is for the school attorney to directly ask the parent
attorney what kind of terms might be agreed to by the parent to resolve the
litigation without going to hearing. That initiates an offer/counteroffer
discussion, which also serves to redirect the dispute away from initial adversarial
posturing toward problem-solving—a key to accomplishing mutually agreeable
settlement. Moreover, this format has the benefit of avoiding face-to-face
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discussions between the parties, which accentuate personality disputes and
promote emotional and inflexible face-saving positions.
If the school attorney can get opposing counsel to discuss a list of potential
settlement terms that would be agreeable to the parent, that list is then discussed
with school staff. An analysis of the listed terms will likely lead to acceptance of
various terms and counteroffers on others. That, in turn, will lead to revised
terms after additional negotiation. Many special education disputes are capable
of settlement in this fashion. Aside from the benefits described above, a
significant advantage of this process is cost-effectiveness. By avoiding formal
mediation sessions or IEP team meetings with attorneys involved, the cost of
defending the complaint is reduced, as well as the opposing attorney’s fee
demand, since there will be no costs for preparing for mediations and meetings.
In fact, most of the negotiations can take place over the telephone or by e-mail.
IEP team meeting with attorneys
If, for some reason, the matter is not susceptible to resolution by the
informal settlement process described above, an alternative is for the parties to
meet in the context of an IEP team meeting to make an effort to resolve the issues
by reaching an agreement on a revised IEP. Although less formal than a full
mediation session, this option has the disadvantages of requiring a greater
degree of preparation and face-to-face confrontation. The relative advantages are
that the rules of mediation need not be followed and the IEP team members can
function in the more familiar environment of the IEP team meeting. Moreover,
there is no limitation on the number of participants in an IEP team meeting, so
the school can involve all staff with knowledge of the child and specialized
expertise to assist in reaching a consensus.
The strategies outlined below for mediation sessions are also applicable to
IEP team meeting “pre-mediations.” Of course, there will not be the assistance of
a trained mediator, so the success of the process depends purely on the
willingness of the parties to cooperate and collaborate in an effort to resolve the
dispute. In this context, attorneys can play the role of mediators by ensuring the
discussion stays on topic, redirecting discussion back to agenda items, proposing
options for consideration of the parties, and helping their respective clients in
remaining calm, professional, and focused on problem-solving.
The possibilities of success in this strategy are increased if the attorneys
have discussions, prior to the IEP team meeting, regarding the agenda for the
meeting, a timeline for the meeting, the goals of the meeting, and an agreement
to make reasonable efforts to minimize clients’ emotionality and adversarial
posturing. These discussions serve to set informal “ground rules” for the IEP
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team meeting and can be crucial to the success of the process. If the attorneys do
not develop some sort of a positive working relationship prior to the IEP team
meeting, the chances of reaching consensus will be minimized.
Formal Mediation
A.
Prepare proposals and contingency options for every issue
The mediation process begins before the day of the actual mediation
session. To use the limited time available for mediation in the most productive
way, school representatives must prepare. The preparation process starts with a
list of all disputed issues known to the school. For each issue, the school must
prepare a range of proposals and contingency options that it is ready to offer to
resolve each issue. Determine which person in the team will actually present the
proposals and do most of the talking. Once a list of proposals and contingency
options are ironed out, school representatives must ensure that they have the
authority to commit to such deals.
B.
Identify and separate negotiable from “deal-breaker” issues
In every mediation, there will be a certain number of disputed issues. One
of the main jobs of mediators is to identify with clarity and precision each and
every issue currently in dispute between the parties. Beyond this overall issue
identification process, however, it is useful to speedily identify the issues that are
clearly negotiable and susceptible to quick resolution. Dealing with “easy” issues
first allows the parties to identify more fundamental issues—those less
susceptible to straightforward resolution. Sometimes all issues but one are
negotiable, but that single issue can doom a mediation to impasse.
For example, a parent’s attorney may raise seven separate legal issues in
pursuing a claim for residential placement, but even if the school system is
willing to meaningfully address all disputed legal issues, the case may not be
capable of resolution if the parents are unwilling to give up on their ultimate
goal—funding for residential placement. In this situation, it is crucial to identify
the “deal-breaker” issue upon which all of the mediation effort lies. Then, the
parties can make a decision to either focus energies on the fundamental issue, or
make more extensive offers on alternative remedies in exchange for compromise
on the “deal-breaker.” Additionally, when faced with inflexible positions on a
particular issue, it is key to fully enlist the mediator’s help. Trained mediators
can then bring their efforts to bear to attempt to break through the inflexible
position.
C.
Proceed from “easy” issues to difficult ones
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In mediation, it is generally advantageous to begin by resolving issues
capable of straightforward resolution, and then proceed to more difficult claims
and allegations. Psychologically, achieving consensus on a number of claims
serves to create pro-agreement momentum among the participants. Once this
positive mindset is in place, the difficult and “deal-breaker” issues are likely to
become more susceptible to resolution.
For example, a parent may have filed a request for an IDEA due process
hearing to seek prospective funding for a Lovaas-style Applied Behavior
Analysis (ABA) home program for her child with autism. In mediation, when
asked about her concerns with the current school IEP, she may raise concerns
regarding evaluations, goals and objectives, PT services, staff-to-student ratio,
and lack of assistive technology devices. If the school meaningfully addresses
these specific concerns by offering independent evaluations, revision of goals
and objectives, increase in PT services, additional staff assistance to improve the
staff-to-student ratio, and added technology, the parent and her attorney may
become more amenable to dropping their request for a full ABA program. If the
school makes clear that it is willing to negotiate on all disputed issues, short of
paying for an ABA home program, the parent and her attorney may recognize
that persisting with the ABA program demand may doom the mediation to
impasse, lead to litigation of uncertain results, and the loss of the offerings made
by the school.
If the school’s offers are attractive, it takes a gambling soul to reject them
in the hopes of winning the ultimate reward in litigation. Moreover, if the
parents’ attorney is working on a contingency arrangement, and the parent
unreasonably rejects meaningful offers in order to gamble on obtaining the ABA
program, the attorney is more likely to counsel the client in favor of settlement,
since pursuing a risky claim may mean that the attorney ultimately receives no
renumeration for his or her work. If faced with parental reluctance to desist from
demanding the ABA program, the school can respond by increasing the offers on
the negotiable claims.
D.
Refrain from direct discussion of merits of case
Parties to mediation must understand that the process is not designed to
lead to legal opinions or findings on the relative merits of the case. Mediation
focuses on the parties reaching mutually agreeable compromises to disputed
issues, which are then committed to writing in the form of a mediation
agreement. School attorneys that present a “case,” complete with legal assertions
and arguments, may simply be previewing the school’s legal and evidentiary
defenses while accomplishing little in the way of moving toward a compromise.
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Mediation is not a pre-litigation process. It is, rather, an alternative to adversarial
due process hearings and court appeals. In fact, too much discussion of the
merits of the case can significantly distract the parties from the goal of working
toward a mutually agreeable settlement. In addition, detailed discussion of legal
argument and evidentiary merits may serve as free discovery to an opposing
party, who will then be better armed for litigation when mediation fails.
Discussion of parties’ relative positions on the merits also can increase negative
and adversarial postures, making the reaching of an agreement in fact more
complicated.
Certainly both parties to a special education dispute should assess the
relative merits of their cases, undertake research on legal points, and develop
favorable legal arguments in preparation for potential litigation. But when
parties agree to participate in mediation, they should be prepared to temporarily
forego legal positions and arguments in order to focus their efforts on achieving
a compromise agreement. If parties are unable to set aside legal positions, at least
for the duration of a mediation session, they should seriously reassess whether to
expend the time, energy, and money involved in participating in mediation.
D.
Move to offers and counteroffers as early as possible in the process
Every mediator will allow the parties, and especially the parents, to
verbally vent their complaints to some degree, usually at the beginning of the
mediation session, before turning to the issue of potential means for resolution.
After the parents have finished presenting their complaints, the tendency for
school district representatives is to counter with a procession of defensive
arguments or explanations on each issue. Parties may find, however, that making
an effort to move quickly to exchanges of offers and counteroffers will promote
the reaching of an agreement within a shorter timeframe. The key is to shift the
parties’ focus away from arguing their case to suggesting ways to resolve the
disputed issues.
Mediators should be of assistance in that effort, since they also will share a
desire to move from argument to specific offers and counteroffers. Once the
mediator has succeeded in identifying the disputed issues, the school
representatives can proceed to make initial offers on any and all negotiable
issues. If this stage is achieved quickly, the process moves away from
emotionality and defensiveness and toward creative problem-solving. This does
not mean that offers will be immediately accepted, but it gets the parties into a
bargaining mood, where an offer is met by a counteroffer, which leads to a
revised offer, and so on, until the first issue is resolved and the parties move to
the next. Otherwise, parties may literally spend hours arguing and re-arguing
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their cases, which builds up anxiety and anger, and can actually harden
positions.
E.
Select an approach to presenting offers
There are various approaches to presenting offers at the mediation table,
but they generally break down to two main methods: the incremental offer
approach, the solid initial offer approach, and the options approach. Selecting an
approach depends on a party’s flexibility and whether the amount of time spent
in mediation is an issue.
In the incremental offer model, the responding party (usually the school in
IDEA cases) proposes offers on disputed issues in small increments. For example,
if the issue is amount of speech therapy services, the school representatives
would initially offer only a slight increase in services. A counteroffer from the
parent would lead to a slightly increased offer, and so on. The benefit of this
approach is that the parties may reach an agreement on speech services that is
actually lower than the school was prepared to ultimately serve up to resolve the
speech issue. The drawback of this “little-by-little” haggling approach is that it
will generally take significantly more time to reach resolution on each issue,
which can lead to a lengthy and protracted mediation session.
In the solid initial offer approach, the operative goal is time-effectiveness
and directness. Here, the school makes an offer that is at or close to the final offer
it is willing to make on any issue. The message to the opposing party is that the
offer is not meant as a “low-ball” offer, but rather as an honest effort to resolve
the issue quickly and without much additional discussion. Moreover, the school
must make clear that additional negotiations on the offer should be quite limited
if the issue is to be resolved at all. The advantage of this method is that issues can
be resolved literally in minutes, leaving substantial amounts of time to deal with
tougher disputes. The disadvantage is that the most favorable deal possible may
not be extracted on individual issues.
The options approach consists of presenting proposals in an options
format, where the opposing party is asked to pick from one of a number of
options designed to address the disputed issue. The psychological advantage of
this method is that people are more likely to agree with a proposal that gives
them the power to select an option. In addition, even if none of the options are
accepted, one option might form the basis for an eventual revised offer that
results in an agreement on that issue.
F.
Play to the mediator in individual caucus sessions
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In many mediations, group discussions with both parties are alternated
with individual caucus sessions between the mediator and each party. The
caucus sessions can be used to gain favor with the mediator in the hope that he
or she will influence the other party to move closer to your party’s bargaining
position. These sessions can be especially useful if a party is adopting a highly
inflexible position on certain or all issues. A common stance with the mediator in
caucus sessions is to establish clearly that your party is willing to negotiate
reasonably, but not without commensurate compromise from the opposing
party. Show the mediator, by both word and deed, that your party is the more
reasonable, and the opposing party will be cast as the inflexible party. This will
lead the mediator to put pressure on the opposing party to move closer to
consensus.
G.
Remain professional
Special education disputes are particularly difficult and personal because
they involve parents and their children with disabilities. A parent’s normal
protectiveness is amplified by the fact that their child is disabled and has
specialized needs. The school can become a focus of undirected anger,
frustration, and disappointment. Despite objective evaluation data, some parents
maintain highly expansive and sometimes unrealistic expectations. These
attitudes clash with the inevitably limited resources available to provide quality
education to disabled students. Add to this mix the fact that some schools’ have
serious compliance and program deficiencies, and you have all the ingredients
for emotional outbursts and personal attacks. Mediation, moreover, offers a faceto-face forum for such displays, from either side. School representatives,
however, simply do not have the luxury of engaging in these tactics. Their job, in
mediation, is to “ride through” these episodes with the assistance of the
mediator, who should bear the primary responsibility for maintaining decorum
in the mediation session. Respond to emotional outbursts with calm, positive,
but honest statements. For example, if a mother breaks down while discussing
how a school has failed to educate her child in general, it may help to say
something like “it is clear to us that you’re upset about your child’s program,
and we don’t know if we can change the way you feel, but we hope that by the
end of today, with your help, we’ll have an agreement that will at least point us
toward a more positive direction. Will you help us try to do that?”
H.
Learn to spot the attrition or “mediation fatigue” strategy
A tactic some parties may use in mediation basically consists of slowly
wearing down an opposing party’s position by extending discussions and
drawing out the mediation session without offering much in the way of
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compromise. This tactic counts on the fact that as party representatives become
tired, they may be more susceptible to giving in on particular issues, just to bring
an end to the session. A useful counter-tactic is to briefly state your party’s
proposals on a particular issue, and then be silent. Eventually, the mediator will
begin to put pressure on the recalcitrant party, in order to keep the process
moving. Do not hesitate to tell the mediator that the opposing party is using this
tactic and that you expect some action to get the mediation back on track.
I.
Draft the mediation agreement as you mediate the case
It is not a good idea to discuss issues, work on a resolution of each, and at
the end of the mediation initiate a draft of the agreement. That invites disputes,
late in a mediation session, over the language of a term. Many times parties may
not have clear memories or notes of agreements reached hours before. Drafting
the mediation agreement as you proceed from issue to issue is clearly
advantageous. Viewed in this fashion, the mediation is broken down into minimediations on individual issues. Once an issue is successfully mediated, that
agreement should be committed to writing. the drafter should read the term out
loud as he or she writes it, until the parties are in agreement that the language
matches the substance of the parties’ agreement on that term. Then, the parties
can move to the next issue. At the end of the session, there should be no need for
further discussion over the language of the agreement, no matter how long or
complex it may become.
Another option is for the mediator to be responsible for the drafting of the
agreement. It is in the interests of both parties, however, that the mediator
commit the agreements on each issue to writing as you mediate the entire case,
rather than at the end of the process.
J.
Make sure the mediation agreement is clear
The last thing either party to mediation wants is for the mediation
agreement to later become the subject of additional dispute itself. This can
happen if the mediation agreement is either unclear or incomplete with respect
to a significant issue. Experienced advocates and mediators are invaluable in
avoiding this pitfall, since they are likely to identify potential ambiguities or
contingencies that need to be addressed in the agreement if it is to succeed in its
goal of resolving the entire dispute. Pay attention to details and refrain from
playing games with the language—the aim should be to set forth in a
straightforward and clear fashion the agreements reached by the parties. Avoid
future disputes by ensuring that parents clearly understand what the school
district will or will not do under the agreement. It is better to have the parent
understand that you mean 30 minutes per week of group counseling rather than
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one-to-one counseling than have the dispute re-erupt a few days later over that
very distinction. Parents will feel deceived, when in fact the issue is one of clarity
in the mediation process. It is better to get the issue out in the open than to hope
that it will not surface at a later time.
K.
Watch for the huge initial demand strategy
Another tactic to be watchful for is one where the complaining party
begins the mediation by demanding an impossibly expansive array of requests.
The tactic works by stunning the school representatives, so that they feel like
they must make extraordinary offers on the disputed issues just to come within
the vicinity of the parents’ huge set of requests. The key to offsetting this “bluff”
strategy is to remain calm and stick to the game plan. Make normal and
reasonable offers on the disputed issues and enlist the help of the mediator in
individual caucus sessions. Eventually, the parents should return to more regular
demands if they have any desire to honestly mediate the case. If the parents do
not reduce their initial set of demands, this is a sign of unwillingness to truly
mediate the matter.
L.
Insist on bilateral compromise
Just as the school representatives must be prepared to make compromises
on disputed issues in order to succeed in mediation, parents must understand
that proceeding to mediation to simply insist on obtaining precisely the demands
made as part of the litigation is not a realistic attempt at mediation. Insist that in
order to mediate the case successfully, some compromises will have to be made
by both parties. Mediation is not a forum where a party simply explains why
they are entitled to every bit of relief pleaded in the due process hearing request
and is able to obtain that relief without litigation. To avoid the monetary and
emotional costs of litigation, a party has to give up something. If one party comes
to mediation to be completely inflexible on their position and demands, then
they are not ready to mediate the case.
M.
Schools should insist on appropriate waiver/release language
Mediation agreements are intended to resolve all current disputes
between the parties in order to avoid litigation. Parents cannot expect to mediate
a case, obtain favorable terms, but nevertheless also retain the right to sue on the
mediated issues. If a parent is unwilling to agree to language releasing the school
from liability on the disputed issues, then there is no guarantee that litigation
will truly be avoided, as the parent will retain the ability to change their mind
the day after the mediation agreement is signed and reinstate the litigation. The
14
mediator should establish, at the beginning of the mediation, that the goal is to
resolve all the disputed issues, so that there will be no litigation.
Given the current climate of money damages claims under §504 and ADA,
schools may want to negotiate broad releases that cover those laws, as well as
other state and federal laws, agency complaints, and professional complaints. At
times, parents will refuse to release any claims beyond IDEA claims. In those
situations, the terms should be negotiated accordingly, as the settlement will be
of reduced legal value to the school.
N.
In difficult cases, explore segregation of certain issues
Although, as stated above, the ultimate goal of mediation is to
conclusively resolve all disputed issues, in some cases this will be impossible. An
agreement may be possible on 14 out of 15 issues, and the last issue may be a
non-negotiable, deal-breaker issue for one or both parties. The potential
agreement on the 14 negotiable issues can be salvaged, however, if the parties
reach an agreement to settle those issues and proceed to a limited litigation on
the single non-negotiable issue. For example, the parent of a child with learning
disabilities may raise a variety of issues relating to IEP goals and objectives,
related services, reports of progress, teacher assignment, and a request for a
laptop computer for home use. If the school and the parents can reach an
agreement on all issues except for the computer request, they can choose to enter
into an agreement on the negotiable issues and leave the single remaining
computer issue for the hearing officer. In many cases, such an approach is
favorable to the school, if there is any concern over the legal merits of some
negotiable issues, but no significant concern on the assistive technology issue.
Moreover, the cost of preparing for a limited hearing will be substantially less
than to litigate the entire list of disputed issues. This strategy should be at least
explored in cases where a number of issues are susceptible to agreement except
for a few “deal-breaker” requests.
O.
Deal with attorneys’ fees
Generally, parents who initiate litigation and obtain a favorable settlement
of the dispute prior to a hearing are entitled to reasonable attorneys’ fees. If fees
are not addressed as part of mediation, parents may be unwilling to agree to an
educational settlement, especially if their arrangement with counsel is that they
are liable for their attorneys’ fees if the school system is not. Even in contingency
fee arrangements, unwillingness to address attorneys’ fees may reduce the
chances of reaching a mediation agreement. Or, the attorneys’ fees issue may be
severed from the educational dispute and litigated in federal court, continuing at
15
least one aspect of the litigation and its attendant costs. Thus, if a fundamental
desire of the parties is that all disputed issues are addressed and resolved as part
of mediation, parties must be prepared to meaningfully consider the issue of
parent attorneys’ fees.
One school of thought is that attorneys’ fees should be discussed first so
that the monetary issue (usually of great significance to school officials) is
disposed of first to allow the parties to focus on the underlying educational
issues. Moreover, addressing the fee issue first can reveal if that aspect of the
dispute is a fundamental or “deal-breaker” term. If the school district is
unwilling to agree to any mediation resolution that includes attorneys’ fees, or if
the parents’ attorney is unwilling to negotiate on the fee amount under any
circumstances, it may be advantageous to quickly identify and treat the matter as
a fundamental one. In such situations, the parties can consider an agreement to
sever, or separate, the educational terms of the dispute from the fee dispute.
Then, the fee dispute could be negotiated separately, while the educational terms
of the agreement proceed to implementation. If no agreement is reached on the
fee issue, then the parents’ attorney can proceed to an action in federal court to
seek fees under the IDEA. This approach salvages the educational aspect of the
agreement, which should be of primary importance to the parties.
Another approach is to simply focus on the educational issues by
addressing them first, in the hopes of casting fees in the role of a concluding
detail of mediation. This approach carries the weight of momentum, in that if the
parties have reached mutually agreeable compromises on every educational
claim, the parties may be more inclined to deal reasonably with the fee issue to
avoid wasting a full mediation effort simply because of a last-minute impasse on
fees. Consequently, however, this approach may mean that in some cases the
parties will expend the full energies required to mediate the educational issues
only to have the agreement unravel because of failure to agree to the sole noneducational fee issue.
As to the fee negotiation itself, parties may adopt an overall approach,
whereby suggested offers and counteroffers on fees are exchanged without
regard to an accounting of billable hours and hourly rate. Other parties may
prefer to act on the basis of reviewing a parent attorney’s record-keeping of
billable hours and an area’s prevailing hourly rate for similar legal work. Under
both methods, parties will want to acquaint themselves with fee awards by
federal courts in the jurisdiction, to properly assess the potential range of a
reasonable fee.
P.
Handling money demands.
16
Increasingly, parents may demand money sums to settle special education
cases. At times, parents’ attorneys may indicate that they may proceed with due
process only to exhaust administrative remedies under IDEA in order to proceed
to federal court on a civil rights §504/ADA claim (which IDEA student can
raise). The standards to maintain such an action for money damages is
exceedingly high, as most circuits require either intentional discrimination, bad
faith, gross misjudgment, or deliberate indifference, depending on the type of
violation alleged. The common types of cases in which these damages are alleged
involve actual injuries to students, disability harassment cases, or cases of quite
serious IDEA FAPE violations. Schools’ attorneys will be able to assess whether
the district in fact has any exposure to such liability, and whether there is any
real need to make any offer of financial compensation. If not, the district may
want to insist on negotiating only educational terms. In such situations, the
parents may be unwilling to release §504, ADA, or other civil rights claims, and
might only agree to release IDEA claims. Depending on the case, that might be a
wise choice for the district.
When Mediation Fails
If all informal and formal measures fail, defending parties should consider an
Offer of Judgment
In some cases, even the best efforts at resolving the complaint informally
or formally, may fail to result in a mutually agreeable compromise. If the school
feels it has made meaningful and substantial offerings to address a parent’s
concerns and claims, but the parents have rejected all offers and options, the next
step is to issue an Offer of Judgment under 20 U.S.C. §1415(i)(3)(D)(i) and FED. R.
CIV. P. 68. An offer of judgment, if issued at least ten days before the date of a
scheduled due process hearing, can be a useful device to pressure an
unreasonable party into reconsidering settlement.
It works in the following way. If a school makes an offer of settlement
containing all proposed offers previously refused by the parent, and the parents
reject the offer and proceeds to hearing, the parents will not be entitled to
attorneys’ fees incurred after the offer was made unless they ultimately obtain a
greater degree of relief from the hearing process than was offered in the offer of
judgment. Thus, if parents unreasonably reject a valid and substantial offer of
judgment, their attorney stands to lose a significant portion of his or her
attorney’s fee entitlement if they do not prevail to a greater degree in litigation.
This dynamic forces the parents’ attorney to readdress the matter with the
parents, and in many cases serves to put pressure on an unreasonable party to
“see the light.” Depending on the agreement between the parents and their
attorney, the parents themselves may be responsible for their attorney’s fees if
17
they reject a reasonable offer and they eventually receive less from the hearing
officer than the school originally offered. All school attorneys should mark on
their calendars the deadline for issuing an offer of judgment to the parents, just
in case all efforts at alternative resolution fail to resolve the case.
When all else fails, explore creative options
Some cases are not easily susceptible to regular dispute resolution
strategies, either because of the complexity of the case, the depth of disagreement
between the parties, the fundamental nature of the dispute, or the presence of
particularly difficult personalities on either side. This does not mean, however,
that the case is doomed to litigation. At this juncture, parties should investigate
the possibility of unique and creative options that may at least temporarily
resolve even deeply entrenched disputes.
An interesting creative approach for use in cases where there are
longstanding conflicts and mistrust among the parties involves the appointment
of an agreed-to ombudsman. This is a person with specialized expertise in
special education who will review the records in the case, interview parents and
staff (and perhaps the student), and render final binding decisions on disputed
issues. The term of the ombudsman’s position is set forth in an agreement, and
during that term, there can be no requests for due process hearings, SEA
complaints, or requests for independent evaluations. On any issue where the
parties cannot achieve consensus, the ombudsman simply renders a final
decision, to which the parties must agree to abide, at least during the period of
ombudsmanship. The parent, however, cannot be prevented from reinitiating the
litigation once the ombudsman’s term has expired. But, at least the device
accomplishes a moratorium on legal proceedings, complaints, and requests for
independent evaluations. In cases where there are serial complaints and repeated
due process hearings, the school may well feel that the ombudsman strategy at
least affords school staff a respite from the litigation and dispute process. The
school, moreover, must generally pay for the ombudsman’s services, and must
also be prepared for the possibility that the ombudsman will not support the
school’s positions on particular issues. In addition, the school cannot limit the
ombudsman’s access to records and information regarding the student, which is
instrumental to the ombudsman reaching decisions on disputed issues.
In a twist on the ombudsman device, parties that have been unable to
agree on an IEP can submit their respective versions of an IEP to an agreed thirdparty expert. The parties must also agree to abide by the expert’s final decision
on an appropriate IEP. The strategy is different from the ombudsman device in
that the ombudsman merely rules on disputed issues (i.e. the parent is right, the
18
school is wrong, or vice-versa) and in the third-party expert device the expert
may come up with an IEP independent of the parties’ proposals.
These strategies are extraordinary and unique strategies, and they are,
however, not without legal risks. In either of the above scenarios, the school is
stuck with the decisions of the ombudsman and third-party expert, even if the
decision results in an inappropriate program. If the experts come up with an
inappropriate IEP, the school still bears the ultimate liability.
Conclusion
Since the special education process is premised upon collaborative
decision-making, and parents are part of the IEP team that reaches educational
decisions regarding a disabled student, it stands to reason that special education
disputes fit perfectly into the schema of alternative dispute resolution methods.
Moreover, these techniques are already applied, with great success, in many
different types of legal disputes. Given both the limited financial resources
available to schools, and the fact that the costs of litigation ultimately come out of
the same funds that are needed to provide quality educational services, it would
seem clear that alternatives to legal proceedings should be a priority for both
schools and parents. Add to these facts the clear disadvantages of the litigation
process for both sides, and the scenario is ripe for aggressive exploration of all
available means to avoid litigation but nevertheless solve conflicts. Disabled
students—the parties that most stand to lose by protracted litigation—deserve no
less from the interested parties.
SAMPLE MEDIATION/SETTLEMENT AGREEMENT
(Meant for instructional purposes only, not intended to be used verbatim, and
not intended as, or constituting, legal advice)
MEDIATION AGREEMENT
This agreement is by and between XXXXXXXXXXXXX, as next friend for,
acting individually and on behalf of XXXXXXXXXXXX his parent and legal
guardian with lawful authority on behalf of a spouse or other biological parent,
and/or person with lawful control of the child, hereinafter collectively referred
to as "Claimant," and XXXXXXXXXXXX SCHOOL DISTRICT, hereinafter
referred to as "District."
19
Bona fide disputes and controversies exist between the parties to this
agreement, both as to fact and extent of liability, if any. By reason of such
disputes and controversies, the parties to this agreement desire to settle all claims
and causes of action, whether or not asserted, arising out of the administrative
proceeding pending under §1415(f) of the Individuals with Disabilities Education
Act of 2004, docketed and styled as XX b/n/f XX v. XXXXXXXXXXXX SCHOOL
DISTRICT, Docket No. XXXXXXXXXXXX (hereinafter referred to as the
“litigation”). By making this agreement, the District does not in any manner
admit any liability, and it respectively denies same. The offerings contained in
this Agreement exceed the requirements of the IDEIA, including the
requirement to provide a free appropriate education. The District enters into
this agreement as a matter of compromise to avoid the expense, risk, and
inconvenience of trial, and no other intention should be inferred.
A.
In consideration of mutual promises and agreements herein
contained, including the recitals set forth below, the parties to this agreement
agree as follows:
1. [SAMPLE IEE TERM] The District will pay for an independent
psychoeducational evaluation, as soon as practicable, and subject to
the selected evaluator’s schedule availability. Claimant shall select a
qualified evaluator in writing, and acknowledges that if an evaluator is
selected that is not currently on contract with the District, there may be
some delays while the contracting process is completed. The
evaluation shall include cognitive and achievement testing and
recommendations for a behavioral intervention plan (BIP) for the
school setting. The total cost of the evaluation plus expenses shall not
exceed $1000.00. Claimant agrees to cooperate with the evaluation,
including cooperating in scheduling the evaluation. Claimant hereby
expressly consents in writing to such evaluation, and agrees no further
IDEA notice to the parent is required regarding this evaluation. In
addition, Claimant hereby consents to the evaluator forwarding a copy
of the evaluation report directly to the District upon its completion.
The District will not be required to obtain further written consent for
20
release of records to the evaluator. If Claimant fails to cooperate with
the procuring of this independent evaluation, or fails to appear at the
scheduled evaluation date without providing notice of cancellation to
the selected evaluator at least 48 (forty-eight) hours prior to the
appointment, the parties acknowledge and understand that the District
shall be relieved of its obligation to perform the independent
evaluation described in this paragraph. If, for whatever reason, the
selected evaluator cannot, or will not, conduct the evaluation under
the specifications outlined herein, then the Claimant will select another
independent evaluator in writing pursuant to applicable IDEA
regulations. In addition, Claimant hereby consents to use of Medicaid
to reimburse the District for any portion of the evaluation’s costs, if
applicable.
2. [SAMPLE HOMEBOUND TERM] The District shall provide Claimant
with a Homebound Form to be completed by a physician licensed to
practice in the U.S. Within 10 school days after receipt of the
completed form justifying homebound placement, the IEP team will
meet and place XXXX on homebound services of 4 hours per week for
the Fall 2009 semester (subject to doctor’s recommendations on the
required term of homebound placement).
3. [SAMPLE SUMMER COMPENSATORY TERM] The District will
provide XXXX with a summer program at a District campus in the
summer of 2009. The summer program shall be of at least four weeks,
four days per week, and four hours per day. An IEP team meeting will
be held in May of 2009 to determine IEP goals and objectives to be
addressed during summer program, including in the area of social
skills. As part of the summer program, the May 2009 ARD committee
shall also develop a structured transition program to facilitate his
August 2009 transfer and enrollment to a middle school other than
XXXX Middle School. The May 2009 IEP team meeting shall determine
placement at a middle school other than XXXX.
4. [REVIEW OF IEE BY IEP TEAM] After receipt of the independent
psychoeducational evaluation, the IEP team will meet in May of 2009,
to address XXXX’s eligibility and determine, after review of the
independent evaluation, whether XXXX meets eligibility as a student
with “Autism” under the IDEA.
5. [IN-HOME TRAINING FOR ASD STUDENT] Prior to the beginning
of the 2009-10 school year, the District will conduct an in-home
training evaluation of XXXX. If Claimant disagrees in writing with the
21
District’s in-home training evaluation, the District will pay for an
independent in-home training evaluation. Claimant shall select a
qualified evaluator in writing, and acknowledges that if an evaluator is
selected that is not currently on contract with the District, there will be
some delays while the contracting process is completed. The
evaluation shall address school-based need for in-home training based
on review of XXXX’s IEP, and other data. The total cost of the
evaluation plus expenses shall not exceed $750.00. Claimant agrees to
cooperate with the evaluation, including cooperating in scheduling the
evaluation. Claimant hereby expressly consents in writing to such
evaluation, and agrees no further IDEA notice to the parent is required
regarding this evaluation. In addition, Claimant hereby consents to the
evaluator forwarding a copy of the evaluation report directly to the
District upon its completion. The District will not be required to obtain
further written consent for release of records to the evaluator. If
Claimant fails to cooperate with the procuring of this independent
evaluation, or fails to appear at the scheduled evaluation date without
providing notice of cancellation to the selected evaluator at least 48
(forty-eight) hours prior to the appointment, the parties acknowledge
and understand that the District shall be relieved of its obligation to
perform the independent evaluation described in this paragraph. If, for
whatever reason, the selected evaluator cannot, or will not, conduct the
evaluation under the specifications outlined herein, then the Claimant
will select another independent evaluator in writing pursuant to
applicable IDEA regulations. In addition, Claimant hereby consents to
use of Medicaid to reimburse the District for any portion of the
evaluation’s costs, if applicable.
6. [SAMPLE DISTRICT EVALUATION WITH IEE OPTION TERM]
The District will conduct its own occupational therapy (OT) evaluation
by a qualified occupational therapist within 30 school days at a District
campus. If Claimant disagrees in writing with the District’s OT
evaluation, the District will pay for an independent OT evaluation.
Claimant shall select a qualified evaluator in writing, and
acknowledges that if an evaluator is selected that is not currently on
contract with the District, there will be some delays while the
contracting process is completed. The evaluation shall address schoolbased need for OT services. The total cost of the evaluation plus
expenses shall not exceed $750.00. Claimant agrees to cooperate with
the evaluation, including cooperating in scheduling the evaluation.
Claimant hereby expressly consents in writing to such evaluation, and
agrees no further IDEA notice to the parent is required regarding this
evaluation. In addition, Claimant hereby consents to the evaluator
22
forwarding a copy of the evaluation report directly to the District upon
its completion. The District will not be required to obtain further
written consent for release of records to the evaluator. If Claimant fails
to cooperate with the procuring of this independent evaluation, or fails
to appear at the scheduled evaluation date without providing notice of
cancellation to the selected evaluator at least 48 (forty-eight) hours
prior to the appointment, the parties acknowledge and understand
that the District shall be relieved of its obligation to perform the
independent evaluation described in this paragraph. If, for whatever
reason, the selected evaluator cannot, or will not, conduct the
evaluation under the specifications outlined herein, then the Claimant
will select another independent evaluator in writing pursuant to
applicable IDEA regulations. In addition, Claimant hereby consents to
use of Medicaid to reimburse the District for any portion of the
evaluation’s costs, if applicable.
7. At the May 2009 IEP team meeting described above, the District shall
review the District’s OT evaluation and independent OT evaluation, if
any, and make a determination regarding need for OT services based
on review and consideration of the evaluation data. In addition, at this
meeting the IEP team will review and revise XXXX’s behavior
intervention plan, after review of the independent psychoeducational
evaluation, to include components designed to address crisis situations
and possible dangerous behaviors with the potential to cause injury to
XXXX or others.
8. [AIDE ASSISTANCE TERM] When XXXX resumes attendance at a
District campus for the 2009 Fall semester, the District will provide
paraprofessional assistance to XXXX in the form of escorting from class
to class and monitoring every class period by a paraprofessional. After
nine weeks of the Fall 2009 semester, the ARD committee will meet to
address XXXX’s continued need for paraprofessional assistance with
input from Claimant. At that ARD committee meeting, the committee
will also review the District’s in-home training evaluation and
independent in-home training evaluation, if any.
9. If either the District’s in-home training evaluation indicates a need for
in-home training services, or the ARD committee determines a need
for in-home training services after review of the independent in-home
training evaluation (if any), the District agrees to provide
compensatory in-home training services of 9 hours during the 2009-10
school year, in addition to any regularly provided IEP in-home
training services.
23
10. The District will provide special education transportation to XXXX
when he resumes attendance at a District campus.
11. As parent training, the District will pay for Claimant’s registration to
attend two State Autism Conferences.
12. [“INCLUSION” IEE TERM] The District will pay for an independent
inclusion evaluation by XXXXXXX, Ed.D., within the first nine weeks
of the 2009-10 school year. The evaluation shall make
recommendations for strategies and supports, both social and
academic, to assist XXXX in participating in mainstream settings. The
total cost of the evaluation plus expenses shall not exceed $1,200.00.
Claimant agrees to cooperate with the evaluation, including
cooperating in scheduling the evaluation. Claimant hereby expressly
consents in writing to such evaluation, and agrees no further IDEA
notice to the parent is required regarding this evaluation. In addition,
Claimant hereby consents to the evaluator forwarding a copy of the
evaluation report directly to the District upon its completion. The
District will not be required to obtain further written consent for
release of records to the evaluator. If Claimant fails to cooperate with
the procuring of this independent evaluation, or fails to appear at the
scheduled evaluation date without providing notice of cancellation to
the selected evaluator at least 48 (forty-eight) hours prior to the
appointment, the parties acknowledge and understand that the District
shall be relieved of its obligation to perform the independent
evaluation described in this paragraph. If, for whatever reason, the
selected evaluator cannot, or will not, conduct the evaluation under
the specifications outlined herein, then the Claimant will select another
independent evaluator in writing pursuant to applicable IDEA
regulations. In addition, Claimant hereby consents to use of Medicaid
to reimburse the District for any portion of the evaluation’s costs, if
applicable.
B.
[ATTORNEYS’ FEES TERM] In consideration for the above
consideration to the Claimant by the District, including the payment of
$XXXXXX (XXXXXXX Dollars) to Claimant’s counsel in settlement of any
possible attorneys’ fees and costs liability, the Claimant and/or their attorney
of record hereby dismisses all causes of action, suits, controversies, claims, and
24
demands which arose out of this litigation or the transactions, events,
occurrences, acts, omissions, or failure to act, of whatever kind or character,
alleged or which could have been alleged in this litigation.
Payment of the aforementioned sum shall take place as soon as practicable
after the District receives an executed original of this Agreement from Claimants.
The dismissal of the suit will be with prejudice and with each party bearing his
own costs.
C.
In return for the provision of the above-described consideration to
the Claimant by the District, the Claimant and/or their attorney of record hereby
dismisses all causes of action, suits, controversies, claims, and demands which
arose out of this litigation or the transactions, events, occurrences, acts,
omissions, or failure to act, of whatever kind or character, alleged or which could
have been alleged in this litigation.
D.
[CONFIDENTIALITY TERM] This agreement, the terms thereof,
and the allegations released thereby shall remain confidential. In consideration of
the aforesaid offerings, Claimant agrees not to reveal, discuss with others, or
otherwise publicize this agreement, its terms, or the allegations released thereby,
to the extent permitted by law. Claimant understands and agrees that such
publicity will constitute a violation of this Settlement Agreement. In the event the
District receives a formal request under the Texas Open Records Act to disclose
this Agreement to third parties, an Attorney General opinion may be requested
to determine whether this Agreement must be disclosed. If this Agreement must
be disclosed under the terms of the Attorney General’s opinion, Claimant and
their agents and attorneys waive any claims against the District under the Family
Educational Rights and Privacy Act (FERPA, at 20 U.S.C. §1232g) based on such
disclosure. The waiver of FERPA claims, if applicable, does not extend to any
student or educational record other than this Agreement.
25
E.
Additionally, in consideration for the aforesaid offerings, Claimant
and/or Claimant’s counsel waives and releases the District from any claim
Claimant and/or Claimant’s counsel might otherwise hold for costs, attorneys'
fees, or any and all other expenses in relation to, or arising from the abovereferenced litigation. In turn, the District waive and release Claimant from any
claim the District or the District's counsel might otherwise hold for attorneys'
fees, costs, or other expenses arising from any claims relating to this litigation.
F.
[MAIN WAIVER/RELEASE TERM] In consideration for the
aforesaid offerings, Claimant and/or Claimant’s Counsel waives and releases
any and all causes of action they might otherwise hold against the District, its
Board of Trustees acting officially and/or individually, its current and former
administrators, teachers, teacher's aides, other employees or independent
contractors, with regard to the claims specified in, arising out of, or which could
have been alleged as part of, the above-referenced litigation, including any
potential further or additional claims or causes of action for money damages or
otherwise under the IDEA, the Rehabilitation Act of 1973 (29 U.S.C. §794), the
Civil Rights Act of 1964, any remedial federal law, any state tort or criminal laws,
the Constitution of the State of
, the Constitution of the United States, any
other state or federal law, complaints before any state or federal agency, and any
professional claims or grievances before any state or federal agency or
professional licensing body. Parties agree that the District will comply with the
Settlement Agreement and continue its good faith efforts to provide services to
XXXX pursuant to the terms of this Agreement while he/she resides within,
and is enrolled in, the District.
G.
It is understood and agreed that this is a compromise of the above-
referenced disputed claim, and that nothing contained herein shall be construed
as an admission of liability, said alleged liability being hereby expressly denied.
26
H.
It is understood and agreed that this compromise Settlement
Agreement shall be governed by, construed, and enforced in accordance with the
laws of the State of
I.
, and in the courts of the State of
.
Each party to this Agreement acknowledges and certifies that he or
she has carefully read this instrument, that each party has executed this
Agreement freely and of their own accord, and that this Agreement resolves all
claims between the parties. Moreover, Claimant acknowledges that this
document was reviewed with the assistance and guidance of counsel.
J.
It is understood and agreed that this Settlement Agreement is
executed in a single original, copies of which shall be deemed original and may
be used for any and all purposes.
K.
It is understood and agreed that rights to relief sought by Claimant
and/or Claimant’s Counsel through the litigation, which relief is not expressly
provided for in the Agreement, is waived by Claimant and/or Claimant’s
Counsel.
L.
It is understood and agreed that this Settlement Agreement
constitutes the entire substance of the agreement reached by the parties with
regard to the above-referenced claims and controversies.
M.
Any statements made, or discussions undertaken, in the course of
the mediation session of
, shall remain confidential and cannot be
used as evidence in any legal proceeding. The parties, moreover, agree that the
mediator presiding over this mediation session will not be subject to subpoena or
discovery with respect to his participation in said mediation.
IN WITNESS THEREOF, the parties have executed this Agreement on the
day of
, 20
.
27
XXXXXXXXXXXXX, Individually
and on behalf of XXXXXXXX,
CLAIMANT
XXXXXXXXXXXX
Director of Special Education
As authorized representative for
XXXXXXXX School District
XXXXXXXXXXXX
Attorney at Law
Attorney for Claimant
XXXXXXXXXXXX
Attorney at Law
Attorney for District
28