ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC

WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev Harv Negot L Rev 201 Harvard Negotiation Law Review Spring 2003 Articles ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: MANY A SLIP ‘TWIXT VISION AND PRACTICE? d1 Grace E D’Alodd1 Copyright (c) 2003 Harvard Negotiation Law Review; Grace E D’Alo Abstract As a result of recent federal legislation, states are required to provide mediation as a dispute resolution option to parents and school districts involved in special education disputes Although states are mandated to provide mediation services, the law gives little guidance as to how states should select a mediation model, select mediators, or measure mediator performance and program success Many states rely on participant satisfaction surveys and statistics on the number of agreements reached to demonstrate program effectiveness and quality This paper examines what such survey data measures and whether it is a reliable indicator of the procedural and substantive fairness of the mediation process Specifically, this article first examines the historical context of Pennsylvania’s efforts to create the Pennsylvania Special Education Mediation Service Next, the article looks at two sources of program data: one quantitative and the other qualitative The former consists of approximately two thousand participant post-mediation questionnaires collected over three years, from 1997-2000 The latter *202 source consists of the performance evaluations of eight special education mediators Although more data is needed, Pennsylvania’s experience suggests the need to examine the relationships that exist between mediation agencies and the institutions in which they are administratively housed, the development and rigorous implementation of relevant mediator evaluation instruments, stricter standards for mediator training, and a way of relating measures of program quality to stakeholder goals and program design Introduction In Pennsylvania and across the country, those engaged in shaping public policy on education believe that teaching collaborative processes, such as mediation and other forms of alternative dispute resolution, will lead to better outcomes for children and their families.1 Many factors play a part in forming this belief First, there is growing evidence that children who have few or poor communication skills may act violently when faced with personal conflicts with acquaintances or family members.2 In addition, incidents such as the *203 tragic shooting at Columbine High School focused national attention on the need for teaching conflict resolution skills to children of all ages Second, as discussed below, there has been a growing dissatisfaction with the limitations of the legal system In the school context, the legal system, through its blunt litigation structure, is viewed as too time consuming and adversarial to resolve the often-subtle conflicts between agencies and parents, or between children and their school environment Special education mediation systems, like peer mediation and conflict resolution education programs, represent one response to these factors by the educational enterprise To insure that children with special education needs are provided with “free and appropriate public education” services, Congress, through the many reincarnations of the Individuals with Disabilities Education Act (“IDEA”), directed states to provide a due process hearing system for parents who challenge the identification, evaluation, placement determinations or other decisions regarding specially designed instruction In response to criticisms regarding the inefficiency, expense, and ultimate ineffectiveness of due process hearings, Congress amended the IDEA in 1997 to require all states to *204 provide access to mediation services as an alternative mechanism for resolving disputes In the reauthorization of the IDEA in 1997, Congress mandated that mediation be available, at a minimum, whenever a due © 2011 Thomson Reuters No claim to original U.S Government Works WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev process hearing is requested.6 Congress turned to mediation for several reasons First, studies showed that mediation could resolve IDEA disputes more quickly and more cheaply than due process hearings Second, due to its informal nature, mediation appeared to offer greater opportunity for participation by parents, guardians, and school officials Third, research showed that parties were more likely to implement agreements reached in mediation Finally, and perhaps most importantly, mediation appeared to encourage parents, guardians, and school officials to openly discuss their underlying concerns and interests, potentially laying the groundwork for greater mutual understanding and more effective and constructive relationships The reauthorization envisions that deeper mutual understanding benefits children with disabilities by resolving program disputes faster and by reducing the possibility of future conflicts 10 As Congress finalized the reauthorized IDEA regulations, scholars and practitioners began to acknowledge that a variety of procedures and third-party interventions were being labeled as *205 “mediation.”11 Mediation literature and practitioners commonly refer to three mediation models In the “facilitative-broad” mediation model, mediators focus primarily on aiding the parties in self-understanding and communication of their underlying interests In the “evaluative-narrow” mediation model, mediators focus on the likely outcome if the dispute went to trial (or, in the case of IDEA mediations, to a due process hearing) In this model, the mediator’s role is to provide the parties with an evaluation of the strengths and weaknesses of each side’s case, the likely legal outcomes if the case proceeds to a hearing, and a determination of reasonable settlement terms In the “transformative” mediation model, mediators focus their interventions on empowering the parties by helping them reach self-understanding and encouraging mutual recognition of each other’s humanity and concerns Despite the very different foci and goals of these mediation models, IDEA regulations not provide any guidance to the states regarding what model would be appropriate for the resolution of IDEA disputes 12 The IDEA simply requires state and local education agencies to employ “qualified” mediators who are “trained in effective mediation techniques” 13 and “knowledgeable in laws and regulations relating to the provision of special education and related services.” 14 The IDEA also does not address how to measure the quality of the mediation program or mediator performance This leaves state educational agencies without guidance on how to determine what mediation model to follow, how to train mediators in that model, or how to evaluate mediator performance in relation to their training and to program goals *206 When the Pennsylvania Special Education Mediation Service (“PaSEMS”) was established in 1988, ten years prior to the IDEA’s mandate, the state education agency (Pennsylvania Department of Education) had even less guidance on which mediation model and training program was appropriate The theoretical basis for the models described above facilitative, evaluative, and transformative was just beginning to emerge Community-based and family mediation programs, while far more common than special education mediation programs, were also just beginning to develop To understand how PaSEMS created a system with clearly articulated goals, procedures, and constraints, it is necessary to view its development in historical context The Blueprint for Special Education Mediation Handicapped children and their families were first invited to the table of public education in Pennsylvania by what is commonly referred to as the “PARC consent decree.” 15 Prior to 1971, Pennsylvania law permitted school districts to postpone or deny enrollment of children who had not attained a “mental age of five years.” 16 In 1971, the Parents’ Association for Retarded Citizens (“PARC”) successfully challenged these statutory provisions for educational enrollment on constitutional equal protection grounds and obtained a court-sanctioned consent decree, in which Pennsylvania agreed to identify and provide educational services to all handicapped children in the state, regardless of the severity of their handicap.17 Under the procedural safeguard provisions of the PARC consent decree, children were entitled to a re-evaluation of their educational placement every two years, an annual re-evaluation at the request of the parent, and notice and opportunity for a hearing regarding evaluation, identification, or placement decisions 18 This opportunity was guaranteed in state regulations creating the “due process” system that made an administrative hearing system available to parents in instances where the state either failed to identify, evaluate, or provide individualized educational programming for children 19 *207 By 1985, however, it was clear that a “seat at the table” did not guarantee that parents would get the educational services they expected or the protection they hoped for from the due process system A report of the National Association of School Directors summarized parents’ feelings about the procedural safeguards: [A] substantial proportion of the Parent Leaders did not feel that the provisions insure that handicapped students are involved in an educational program that provides for their specific needs Evidence of mistrust by Parent Leaders of actual implementation of procedural safeguards surfaced in the strength of their agreement regarding the need for periodic monitoring of placement recommendations, and in their diversified opinions about procedural safeguards providing a © 2011 Thomson Reuters No claim to original U.S Government Works WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev mechanism for insuring professional accountability in service delivery 20 In Pennsylvania, the formal due process hearing and appeal system was viewed as “time consuming, demanding, costly, and stress producing” and had “sometimes proved frightening to parents or ha[d] resulted in divisiveness and bad feeling between educators and parents.”21 Close in time to these reports, the Education Law Center (“ELC”), 22 acting on behalf of children with disabilities and their families, asked the Pennsylvania Department of Education to explore the feasibility of creating a mediation system From the viewpoint of the ELC, more options for resolving disputes were needed 23 Disputes over identification, evaluation, and placement were quickly, and too frequently, escalating into protracted and expensive legal battles In response to the ELC’s request, the Director of Pennsylvania’s Bureau *208 of Special Education appointed a Mediation Task Force (“MTF”), composed of parents of exceptional children, consumer advocates, and representatives of state and local education agencies The MTF was charged with determining whether a special education mediation system should be established 24 The MTF struggled with what mediation could and could not to resolve disputes between parents and schools It held public meetings across Pennsylvania and gave all interested parties an opportunity to speak The MTF also invited representatives from states that had experience in developing special education mediation systems to present information on the strengths and weaknesses of those systems 25 After considering all of this information, the MTF wrote a report that recommended the creation of a mediation system On one hand, the MTF report embraced the hope that mediation could lead to the “resolution of differences between parents and agencies without the development of an adversarial relationship and with minimal emotional stress.”26 On the other hand, it expressed what it felt were realistic limitations with regard to that hope: It is likely that mediation will little in resolving differences of educational philosophy which exist between the parties Mediation may not eliminate the need or desire for retaliation Mediation likely will not resolve long standing issue [sic] disputed by the parties Mediation will not settle disputes that exist between agencies of government Mediation will not resolve parental concerns that are unrelated to the student’s education 27 *209 Despite these concerns, the MTF clearly spoke to the overriding goals in establishing a mediation program in the preface to its recommendations: The intent of this system is to amicably resolve disputes regarding exceptional students A reduction in the projected number of actual hearings is neither anticipated nor the goal of this Task Force An increase in cooperative problem-solving to meet the needs of exceptional students while allowing for the development of positive working relationships between parents and educators is the goal.28 This article examines what can be learned from Pennsylvania’s attempt to meet this goal Specifically, the article describes PaSEMS: its mediation model, its training programs, and its attempt to determine quality by measuring the progress toward the goals of self-determination, cooperative problem-solving, and better relationships between schools and parents 29 Part I describes Pennsylvania’s mediation model and the selection and training process for special education mediators in light of the goals articulated by the MTF Part II examines the participant feedback data that PaSEMS collected over a threeyear period from 1997-2000 This data comes from the “Mediator Evaluation” form that participants completed after every mediation session.30 The *210 form will be referred to as the “questionnaire” throughout this article in order to differentiate it from the mediator observations and evaluations that were conducted using the Elements of Mediation scales in November and December of 2000 Part III describes the development and implementation of an evaluation instrument for PaSEMS mediators’ performance Part IV describes the results of the observations of eight special education mediation sessions and compares and contrasts this to the questionnaire data Part V summarizes the implications of the evaluation and suggests recommendations for agencies providing special education mediation services This Part also makes specific recommendations about program administration, the mediation process, evaluation and participant surveys, and training 31 Part VI concludes the article with a reflection on what should anchor the definition of quality in special education mediation where the concepts of self-determination, satisfaction of underlying interests, and relationship building are valued, but where © 2011 Thomson Reuters No claim to original U.S Government Works WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev customer satisfaction and the desire for agreements are also relevant 32 I Development of the Pennsylvania Special Education Mediation System In its 1985 report, the MTF articulated its reasons for recommending the establishment of a mediation system in Pennsylvania and specifically described how the mediation system should operate 33 The procedures described in the MTF Report focused on how to *211 make the mediation process fair, efficient, and distinguishable from (or an alternative to) the due process hearing The MTF report drafters clearly intended to protect and maintain the parents’ hard won right to be part of the educational decision-making process that determined appropriate services for their children It also anticipated that an effective alternative dispute resolution process would not be too formal (in the hands of attorneys who would speak for the parents and take parents out of the process) 34 or too informal (not taken seriously enough by the parties in terms of honoring the process and timelines) Based on the task force study and recommendations, the following guidelines for the PaSEMS system were established:35 All reasonable attempts will be made to schedule the mediation session within five days of the request The mediation session will be limited to one eight-hour day If no agreement is reached within this time period, the parties may exercise their right to due process or simply continue with the status quo.36 The service is free, voluntary, and scheduled at a mutually convenient time and place at the request of either party The mediation will be scheduled at a neutral site if either party prefers a site other than the school School personnel and parents are asked to set aside the whole day to participate in the mediation, free from interruptions, to the maximum extent possible The number of persons attending each mediation session will be limited The school district may designate a total of three *212 school officials to participate in the mediation session, one of whom must have the authority to commit school district resources The parent(s) may invite two guests.37 “[M]ediators should be affiliated with an agency as [far] removed from the local education environment as possible.” 38 (In effect, this recommendation is suggesting that mediators should not be affiliated with an educational agency.) They will be chosen based on their knowledge and experience with education and special education regulations and, equally important, their personality should reflect “sincerity, patience, integrity and instill trust.” 39 Mediators will receive a minimum of forty hours initial training followed by two days of in-service training per year 40 Attorneys will not be permitted to participate in mediation sessions, either on behalf of the school or the parents 41 10 The process is informal and provided in an atmosphere that is non-threatening and warm.42 11 The participants at the completion of each mediation session will be asked to complete a participant questionnaire regarding their perceptions of the mediation service.43 These recommendations and operating procedures explicitly and implicitly reflect the MTF’s desire to level the playing field between the parties and to provide a fast, less antagonistic, 44 affordable, and fair alternative to the administrative due process hearing.45 *213 The applicants for mediator contracts went through a lengthy and intensive screening process that focused on the ability of the candidate to project empathy, trust, and friendliness 46 All of those eventually selected through this process were trained at the Neighborhood Justice Center of Atlanta (“Justice Center”), one of the few long-standing mediation centers in the country The Justice Center was selected based on its familiarity with mediation in special education and its history of success in providing mediation services and training to mediators PaSEMS’ choice of training institution therefore resulted in a default choice of mediation model The Justice Center did not explicitly describe its training program as facilitative, evaluative, or transformative, but its materials suggest a facilitative approach that allows for the incorporation of evaluation in limited situations In the 1987 edition of its training manual, the Justice Center described mediation as follows: © 2011 Thomson Reuters No claim to original U.S Government Works WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev Mediation is an informal, non-adversarial process whereby persons or entities can resolve disputes between themselves without having to go through formal litigation The two or more sides involved in a dispute are given an opportunity through the mediator to fashion between and among themselves a solution satisfactory to all sides The mediator is experienced in the process, but need not be an expert in the issue being mediated.47 The mediator in the 1987 Justice Center model was an impartial facilitator who focused the parties on areas of agreement and compromise In this role, the mediator was not to judge the dispute or impose his or her will, decisions, or values 48 The mediator’s tools *214 included summarizing, flipping sides (responding to the unstated positive behind the negative statement), reflecting the parties’ feelings, drawing the bottom line (stating conclusions based on what has been implied by the speaker), identifying strengths, being an “agent of reality,” 49 simplifying, probing, and using verbal and non-verbal behavior neutrally.50 Interestingly, the Justice Center training focused in part on teaching the mediator how to weigh the credibility of statements of the disputants, the credibility of documents, and the impact of the evidence These skills were considered “USEFUL in PERSUADING the other side, NOT THE MEDIATOR, toward one position.” 51 In short, the Justice Center model comprised a system of facilitated positional bargaining with the mediator weighing evidence and credibility 52 in much the same way that a judge might mediate in a settlement conference PaSEMS selected the Justice Center to train newly hired mediators again in 1997 The revised materials from this training include facilitative and evaluative techniques For instance, the materials state that the mediator should acknowledge and allow the expression of feelings 53 The revised materials also describe the mediator’s role as an enabler, a person who empowers the parties to examine their positions through effective use of communication skills 54 Although these are typically thought of as facilitation skills, the model also describes the role of the mediator as agent or medium for reality testing The training material states: “Reality testing is not intimidation It should not be used to persuade parties to forego exercising their lawful rights to hearings and appeals.”55 Reality testing in this context is a form of evaluation In addition to the basic training from the Justice Center, PaSEMS mediators were required to attend two days of training annually through the PaSEMS office From 1988 through 1997, the PaSEMS annual training focused primarily on updating the *215 mediators on changes or developments in special education law as presented by Pennsylvania Department of Education legal staff Neither the initial Justice Center training nor the continuing education programs sponsored by PaSEMS focused on the MTF’s goals of collaborative problem-solving, self-determination, and building better relationships 56 This does not imply that the program was unsuccessful in getting parties to reach agreements or that it failed to provide an affordable, efficient, and desirable alternative to the due process hearing It is clear, however, that these training programs pushed the process towards successful government institutionalization by emphasizing agreements, evidence, and legal rights rather than process and collaboration PaSEMS began serving clients in February of 1987 The first and only formal evaluation of PaSEMS in 1989 relied heavily on the information provided by participant questionnaire data From its beginning, PaSEMS asked all mediation participants to complete evaluations, hereinafter referred to as questionnaires, at the end of the mediation session 57 All participants filled out questionnaires at the conclusion of their mediation sessions, and the completed questionnaires were placed in a stamped, sealed envelope before the participants left the session The mediator mailed the envelopes to the PaSEMS office and the PaSEMS staff recorded all of the data from the questionnaires Summaries of the questionnaires from each session were sent to the mediators who handled the mediation Other than these questionnaires, there was no formal observation or evaluation of mediator performance.58 *216 Following the original MTF recommendations, Jennifer Mastrofski completed a formal evaluation of PaSEMS in September of 1989.59 The evaluation covered the period from February 1987 through June 30, 1989 60 and was based on the data collected through participant questionnaires and the intake process 61 During this period, PaSEMS processed 207 requests for mediation and, out of those requests, actually mediated a total of seventy-one cases, sixty-one of which resulted in agreements (86% of mediated cases) The main thrusts of the 133-page Mastrofski report were: (1) speculations regarding why parents were less likely to use mediation services than were school districts; and (2) recommendations in regard to data collection and management: When mediation services are rendered, parties and participants are generally satisfied with the process At this time, however, services are provided more for school parties who request them than parents There is a need to qualify reasons for difference in use by schools and parents Without such information, there is no way of knowing whether satisfaction ratings of parents are linked to their reactive rather than proactive roles in the mediation process, exacerbated by non-neutral settings of most © 2011 Thomson Reuters No claim to original U.S Government Works WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev mediations.62 To address this lack of information, the report made several recommendations for revisions to the participant questionnaires and, to a lesser degree, to operating procedures that were thought to affect parent participation 63 Ironically, despite the fact that Mastrofski conducted the evaluation pursuant to the MTF’s recommendation, neither the evaluation nor the recommendations regarding the post-mediation questionnaire focus on the MTF’s goals of collaborative problem-solving and relationship building.64 The evaluation concentrates on the professionalism of the mediation system as defined by *217 the number of agreements reached, the participants’ satisfaction with the mediation setting and the PaSEMS office staff, and the appraisal of the mediators’ ability to problem solve It also appears that the recommendations embedded in the evaluation are grounded more in explaining what was perceived as an under-utilization of mediation than in the quality of the mediation services provided While the degree of mediation use is an important concern, there is not a proportional amount of attention given to the participants, particularly to parents having a voice in the outcome (self-determination), the ability of the mediator to focus on interests rather than positions (collaborative problem-solving), or the ability of the parties to improve their relationship with respect to the child’s educational program This report had the result of moving the Pennsylvania mediation system further away from the original vision of the MTF In 1990, without any disagreement from its constituent stakeholders, the suggestions and revisions proposed in the Mastrofski evaluation regarding data collection and the participant questionnaire were incorporated into the PaSEMS operating procedures Between 1990 and 1997 the system functioned smoothly It received little attention from the public education community and there was no further formal or informal review of the system other than a yearly reporting of statistics to the Mediation Advisory Panel.65 In 1997,66 Pennsylvania had twenty-four mediators under contract All of them had been mediating since 1990 Although the *218 system operated without any significant difficulties, there were gaps in the PaSEMS operation that became apparent only when the Pennsylvania Department of Education directed the program to vigorously promote mediation to both school districts and parents as a quality alternative The Department of Education wanted to reduce the increasing number of due process hearings being requested and processed in Pennsylvania 67 Although mediation requests were steadily increasing, this did not seem to have any impact on the hearing requests.68 TABLE 169 Due Process Hearings and Appeals July 1, 1996-June 30, 2002 Appeals Court Fiscal Year Requests Hearings Decisions70 1996-1997 458 197 194 59 15 1997-1998 553 210 201 72 12 1998-1999 719 273 250 114 20 1999-2000 857 273 245 94 2000-2001 970 209 209 64 TABLE 271 Mediation Statistics July 1, 1996-June 30, 2001 Fiscal Year Requests Hearings Agreements Non-Agreements 1996-1997 241 111 92 19 1997-1998 234 132 116 16 1998-1999 410 181 154 27 1999-2000 408 190 152 38 2000-2001 376 134 110 24 To bolster the promotion of mediation as a high quality alternative, PaSEMS looked once again to the participant questionnaires *219 This posed an immediate dilemma Although PaSEMS’ staff had recorded all participant responses from the questionnaires, the data could not be aggregated Thousands of responses were available but were only retrievable one at a time This was the first problem Second, no articulated standards for mediator performance existed The training manual from the Justice Center consisted of a compilation of exercises, legal information, and anecdotal descriptions that provided little in the way of defining or measuring the acquisition of mediator skills None of the Pennsylvania mediators had ever been observed, much less evaluated, by their peers or by PaSEMS staff In addition, the initial Justice Center training had not been supplemented with additional direction about how to conduct mediation sessions The emerging models of mediation-evaluative, facilitative, and transformative had not been presented in training or considered in relation to the goals of the program by the program administrators Although the mediators relished the opportunity to share their experiences in the annual continuing education sessions, they failed to use these discussions to build their own definition of quality © 2011 Thomson Reuters No claim to original U.S Government Works WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev performance PaSEMS determined that to present credible reasons for using mediation, it had to develop and implement standards for the performance of the mediators and staff Developing such standards presented many challenges In the environment described above, the mediators felt secure in their abilities, valued by the PaSEMS program office, and, most importantly, critical to the mission of providing a better alternative for children and families caught in tough disputes These were all very positive but fragile relationship-based forces In addition, many of mediation’s natural constituents superintendents, special education directors, parents, teachers, advocates and others involved in special education were still skeptical To convince these groups to expand the use of mediation, PaSEMS felt it needed to define “quality” and create a standard toward which the program could progress Aggregating participant questionnaire data to find out what it said about the mediators, the mediation process, and the agency was an obvious first step II Participant Feedback From Questionnaires With a great deal of technical assistance, PaSEMS collected the data into one database and summarized its findings 72 *220 A Data from Participant Questionnaires The data summarized below is taken from the questionnaire 73 that all participants, whether appearing for the parents or the school district, were asked to complete at the end of every mediation session The questionnaire contains twenty-eight questions designed to measure participants’ satisfaction with the mediator and the overall mediation experience The origins of the questionnaire format prior to Mastrofki’s evaluation are not known PaSEMS, however, revised the questionnaire form based on Mastrofksi’s evaluation of the mediation system in 1989 74 The data summarized below reflects questionnaires that were completed in mediations that took place between January 1997 and September 2000.75 The total number of recorded responses on any particular question varies because participants occasionally skipped questions PaSEMS analyzed a total of 2,119 questionnaires 76 The data recorded from the questionnaires can be sorted into four categories: 1) Mediator performance; 2) Participants’ perception of the fairness of the mediation process; 3) The role of the PaSEMS office; and 4) The suitability of the surroundings *221 For purposes of this article, only the responses to questions in categories one and two above are examined in Part II.B below Participants were also invited to comment on any part of the mediation experience at the end of the questionnaire The comments collected in this part of the questionnaire are briefly discussed in Part II.C below and are fully listed in Appendix C.77 B Conclusions from the Data At first blush, the data suggests that PaSEMS and its mediators served families and school districts very well from 1997 to 2000.78 Participants in mediation expressed their opinion that with respect to mediator performance and the mediation process, they were almost unanimously satisfied The parties reported that the mediator took control of the session from the outset and observed the rituals of greetings and introductions as needed (99.99%) The mediator explained the process fully (99%) and developed an atmosphere of trust for the mediation session (94%) Nearly all respondents indicated that the mediator explained his or her role in the mediation process In addition, participants had confidence in the mediator (97%), and thought that the mediator understood the problem being mediated (91%) Most respondents believed that the participants had the chance to give their point of view about the problem (94%) Most participants felt the mediator was even-handed in allowing this opportunity for voice by not allowing one party more time to talk (80%), or seeming to take sides (87%) The most valued personal characteristics of the mediator were patience and neutrality,79 and the most valued skills were those used to clarify the issues and foster communication Although the percentage is significantly lower than in other categories, a majority of respondents felt that the mediator helped the parties to “solve their own problems, rather than offering solutions to the problems” (72%) Eighty percent of the respondents felt that the mediator addressed all the issues brought to the table Despite what seems to be significant satisfaction with the actions of the mediator and the process, only 57% of those responding gave the highest possible rating of “very satisfied” when asked about their *222 satisfaction with the mediation © 2011 Thomson Reuters No claim to original U.S Government Works WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev results Another 25% of the participants responded that they were “satisfied.” Combining these two indices of satisfaction indicates that about 82% of mediation participants were satisfied to some extent with the mediation results This percentage is close to the rate of mediations ending in agreement (85%) However, the questionnaire does not distinguish between substantive, relationship-based, or process-based results For example, the data leaves open the possibility that participants were satisfied because they had reached an agreement, but were not “very satisfied” because the other goals they had hoped to achieve through the process had not been realized.80 If the effort to measure quality had stopped here, then PaSEMS might have concluded that it was providing a “high quality” service PaSEMS could have reasoned that its mediators had been appropriately trained and had demonstrated an appropriate level of skill Without actually observing the mediation sessions, PaSEMS could have also concluded that participants were satisfied when a mediator demonstrated neutrality, explained and took charge of the mediation session, acted in a patient manner, listened and clarified the parties’ interests, addressed all the issues presented, and allowed the parties an equal opportunity to speak The additional comments in participant questionnaires tend to reinforce these conclusions 81 However, the questionnaire leaves some unanswered questions: Why were only approximately half of the participants “very satisfied?” Why did 27% of the respondents feel that the goal of self-determination, that is, people solving their own problems, was not being met? Should the fact that 20% of the respondents felt that all of their problems were not being addressed raise some concern? And what information does the data provide, if any, on whether mediation affected the relationship between the school and the parents? *223 In order to begin answering these questions, program administrators realized that the participant questionnaire needed to be revised To make these revisions, it was necessary to make a threshold determination of what mediators were expected to and how these expectations would be measured by the agency PaSEMS decided to develop an evaluation instrument for mediator performance that would provide the agency with more focused information on specific mediator interventions and the extent to which the relationship between the parties was affected by the mediation process Based on what was viewed to be primarily positive information from the questionnaire data, PaSEMS administrators were confident that any evaluation instrument that it developed and implemented would support the agency’s efforts to promote mediation by specifically demonstrating the high quality of mediator performance and of the program as a whole C Comments from Participant Questionnaires The last question on the participant questionnaire asked an open-ended question: Is there anything else about your experiences with PaSEMS that you would like to discuss? Although it is difficult to draw any conclusions from the comments volunteered in response to this inquiry, many comments reflect the importance of procedural justice concerns Participant responses to this question reflect the importance of having an opportunity to speak, of being treated with dignity and respect, of having their concerns acknowledged, and of having a neutral mediator control the process Responses included: 82 This was my first experience with mediation and I more clearly understand its benefits I also now understand that there should be no sense of anxiety [or] apprehension with regard to the process, which has helped the school to maintain an amicable working relationship with the parent I think it provides an arena where everyone feels they have a ‘fair shake.’ It helps to diffuse anger and it seems to give everyone an equal stand I left feeling we had done the right thing Yes, we avoided due process but I did not feel we should have gone through a second mediation The mediator should have had more control in the first mediation and issues settled there The mediator allowed the parties to control the meeting Even after familiarity of individuals, her skills did not change I *224 asked the mediator if it was her position to stop insulting remarks She said ‘[Y]es.’ I was frustrated I said, ‘[W]ould you please say something then?’ I felt the mediation was fair and the mediator was neutral She met with all of us and we took turns speaking She didn’t allow either side to interrupt each other She then met with each side separately, and then we all met together and agreed to go to due process I feel the mediator realized that there was no way to compromise or negotiate and it had to go to due process During annual training sessions, the PaSEMS mediators frequently commented that the participants’ responses to this openended question often provided them with the most useful and insightful information on the questionnaire Perhaps this part of the questionnaire gave participants a chance to speak directly about their hopes, goals, and frustrations with the process It was the only place available on the questionnaire for participants to address issues of relationship between the parties, whether the mediations resulted in an atmosphere of collaboration and whether their goals for the mediation had been met III Developing and Implementing an Instrument To Measure Quality A Development © 2011 Thomson Reuters No claim to original U.S Government Works WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev Using the data above as its starting point, PaSEMS initiated efforts to define and measure quality in its program The first step in this effort was taken in February of 1999 when PaSEMS hired a consultant to begin investigating the definition of quality in special education mediation.83 From the beginning, this investigation was viewed as a collaborative effort between the project director, the staff, the Mediation Advisory Panel, and the mediators All contracted mediators and panel members were invited to join the “workgroup” and, initially, twelve of the twenty-four participated This number decreased over the duration of the project but a core of roughly seven continued through the entire period Over the course of eighteen *225 months, mediators and staff reviewed all internal agency documents and materials to determine what the values of PaSEMS included.84 After reaching a consensus on the agency’s values, the workgroup reviewed drafts of performance scales that the consultant had developed as part of the “Test Design Project.” These scales were scrutinized carefully in light of the mediators’ desire that any performance measure accommodate different mediation styles and diverse personalities The mediators also wanted performance measures that identified the skills they felt were uniquely important to special education mediation The skills that were most emphasized in group discussions were neutrality, gathering facts, bringing to light the parties’ underlying interests, and building trust between the parties During this phase of the discussions, the two most controversial topics in the workgroup were the degree to which a mediator should assist the parties in generating options and suggestion language for agreements Many mediators felt strongly that suggesting solutions to participants, particularly to parents, interfered with their right to self-determination and negatively impacted the parties’ sense of ownership of any agreement reached 85 On the other hand, since parents could be without representation in mediation, there were many mediators who felt that suggesting options was a reasonable and necessary accommodation to the power imbalance inherent in such a situation 86 Eventually the mediators struck a practical compromise on this issue Suggesting options or generating language for the agreement was at the mediators’ discretion and was acceptable along defined limits As discussed below, the final evaluation instrument *226 enabled the observer to assess how a mediator exercised this discretion 87 The workgroup identified a total of ten skills that they thought reflected the goals of the program as defined by the MTF and that demonstrated quality in mediation under the IDEA 88 The Mediation Process Is Successful When the Mediator Is Able to:89 1.Manage the Startup: Effectively begin a productive relationship with the parties 2.Gather and Comprehend Facts: Effectively identify and seek out factual information relevant to the case, and sift and organize information that has been gathered 3.Understand Underlying Problems and Interests: Draw out and understand parties’ essential concerns and needs, whether or not verbal or articulated in factual information 4A.Express Empathy Verbally: Be conspicuously aware and considerate of the needs and values of others 4B.Express Empathy Nonverbally: Be conspicuously aware and considerate of the needs and values of others, in body language and other ways not captured by scale 5.Maintain Impartiality: Convey a sense of neutrality to the parties 6.Manage Personalities: Effectively cope with strong personalities and conflicts between clients and professional representatives 7A.Assist Parties in Generating Options: Pursue collaborative solutions and assist parties in generating ideas and proposals consistent with the facts and workable for opposing parties 7B.Generate Options: Generate ideas and proposals consistent with the facts and workable for opposing parties 8A.Assist Parties in Generating Agreements: Effectively help the parties move toward finality 8B.Generate Agreements: Effectively move the parties toward finality and “close” an agreement *227 9.Move Parties Towards Improved Relationships: Effectively help the parties move toward better relationships with each other and third parties © 2011 Thomson Reuters No claim to original U.S Government Works WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev 10.Manage the Interaction and Conclusion: Effectively manage the concluding process The workgroup also developed a substantive knowledge standard as part of its overall vision of competence According to this standard, a mediator needs enough knowledge to be able to: (a) facilitate communication; (b) help parties develop options; (c) empathize; (d) alert parties to the existence of legal information relevant to their decision to settle; and (e) alert parties to psychological issues relevant to their relationship 90 The Mediation Advisory Panel, the oversight committee to PaSEMS, reviewed the revised scales A video, Elements of Mediation, was produced to introduce the evaluation scales to the rest of the mediators at their yearly training This video was also seen as a vehicle for stimulating discussion with a number of states on the issue of incorporating evaluation into mediation programs.91 The PaSEMS annual training in October 1999 was devoted entirely to the introduction of Elements of Mediation The training used role-plays specifically designed to highlight evaluative, facilitative, and transformative techniques and to demonstrate how the evaluation instrument accommodated different styles and personalities of the mediators The workgroup was extremely collaborative and collegial throughout its efforts As a result, there was unanimous acceptance of the Elements of Mediation as a mediator performance evaluation tool There was a lengthy discussion at the training on how to use the instrument Most mediators felt that direct observation and feedback would be helpful The more difficult question was who would be the observer? Most of the mediators supported the development of a peer review system That is, mediators would observe each other, give each other feedback, and provide the results of the observation to the director *228 Over the course of the next year, the administration attempted to implement a peer review system but it immediately ran into problems From its beginning, PaSEMS tried to respond to all requests for mediation quickly, sometimes scheduling sessions within as few as five days of the request, and routinely scheduling them within fourteen days To continue this rapid response, it simply was not possible to arrange for the availability of two mediators, one to mediate and the other to observe, for scheduled mediation sessions In light of these scheduling difficulties, and in response to interest shown by the Pennsylvania Department of Education to begin the evaluation system, the project director, with the advice and consent of the Advisory Panel, carried out the observations as described below B Implementation Eight mediation sessions were observed between November and December of 1999 using the Elements of Mediation evaluation instrument.92 Two concerns initially arose First, the sample size was undesirably small; due to changes in the internal structure of the intermediate unit administering the program, continued observations were not possible Second, it was possible that evaluator bias or error played a role in determining a final score on each skill for each mediator To the extent possible, the evaluators tried to adjust the evaluation process to address these concerns 93 Even with these adjustments, any conclusions drawn from the data should be read with these qualifications in mind The discussion below relates to the mediator ratings with the information gathered from the participant questionnaires where possible In considering the limited amount of *229 mediator evaluation data, it is important to keep the following in mind First, all eight evaluated mediators had been working as special education mediators from the beginning of PaSEMS in 1988 94 Second, the mediators completed a self-evaluation of their mediation style95 prior to being observed, and all measured in the facilitative-broad category to slightly differing degrees.96 Finally, through the yearly training and the development of the Elements of Mediation, the mediators frequently and consistently demonstrated support for the goals of self-determination, empowerment through the uncovering of underlying interests, and fostering of better relationships between schools and parents IV Looking at the Data This part summarizes the data for each skill, or “element,” evaluated as enumerated in the Elements of Mediation scales Comments relating to events during the observation come directly from the notes that the observer wrote on the evaluation instrument.97 Manage the Startup: Average Score 8.0 The mediators’ scores on this skill ranged from (one mediator) to (four mediators) with two scores of and one of In only one case did the mediator fail to explain the process, describe the mediator’s role, or state anything in regard to the confidentiality and enforceability of the agreement (resulting in a score of 5) One other mediator was not thorough in explaining the mediation process, did not review the voluntary nature of the process with the participants, or take the opportunity to acknowledge the positive aspects of the parties’ willingness to try this dispute resolution option (resulting in a score of 7) *230 These scores are consistent with the data from the questionnaires which showed the highest satisfaction percentages, © 2011 Thomson Reuters No claim to original U.S Government Works 10 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev frame” in responding to a request It should not be based on what their solicitor thinks or wants The districts should be more prepared (The district at some point no longer recollected a document.) The document in question was indeed produced by us and even that was not enough to jar memories from the district (It was then that the mediator was able to sway the district.) I believe the school district had no fear or rather felt not concerned about going into mediation The school district had all the power I not feel that there is a level playing field since we could not present experts to refute the testing administered to my daughter It seems that going to due process with an attorney is the only way to force the district to compromise *268 Group Responses addressing the mediator’s neutrality I had been to another mediation hearing unrelated to this case where it seemed as if the mediator sided against the parent I was very satisfied with this mediator and his ability to listen objectively to all the facts from both sides of the issue I feel a very good agreement took place and a due process hearing was avoided The mediator did an excellent job She was patient yet objective I attended this meeting for support of a friend We both noticed when Mediator, Mr introduced everyone in the room, he commented he “knew” [two of the parties] We were under the impression (Mrs was actually told this) that said mediator would be neutral I felt it would have benefited this meeting if no one party knew the others involved Group Responses dealing with the outcome We have always been able to reach some agreement through this process, even when I felt certain no resolution was possible I would support mandating mediation prior to a hearing This is currently being explored in [a] Federal court process and it certainly seems more likely to be successful at this level than at that level I did not receive any of the requests that I put forth I am willing to try the suggestions that the school put forth However, all of the focus was placed on ‘retraining.’ I not believe administrators have a ‘handle’ on the extent of [the] disability The process was fine The outcome was not I felt we were willing to make accommodations, but the parents were not The mediator did his job and he did it well My dissatisfaction is still with the school district It’s a shame that I had to waste some Pennsylvania tax dollars to get some answers from the assistant principal My son may/may not benefit from this mediation I was dissatisfied with the mediation because we could not reach an agreement Group Responses addressing the integrity of the process This was my first experience with mediation and I more clearly understand its benefits I also now understand that there should be no sense of anxiety/apprehension with regard to the process, which has helped the school to maintain an amicable working relationship with the parent I think it provides an arena where everyone feels they *269 have a ‘fair shake.’ It helps to diffuse anger and it seems to give everyone an equal stand I left feeling we had done the right thing The mediator allowed the parents to bring up a great deal of history He allowed them to go on in a way I felt was inappropriate It was obvious at that time that the mediation was not going to be successful on the major issues It should have been ended Yes, we avoided due process but I did not feel we should have gone through a second mediation The mediator should have had more control in the first mediation and settled issues there The mediator allowed the parties to control the meeting Even after familiarity of individuals, her skills did not change I asked the mediator if it was her position to stop insulting remarks She said yes I was frustrated I said, ‘[W]ould you please say something then?’ I felt the mediation was fair and the mediator was neutral She met with all of us and we took turns speaking She didn’t allow either side to interrupt each other She then met with each side separately, and then we all met together and agreed to go to due process I feel the mediator realized that there was no way to compromise or negotiate and it had to go to due process Group Responses addressing the mediator’s qualifications Our mediator was knowledgeable of special education which was very helpful in a prior mediation over a year ago The mediator knew almost nothing about Chapter 14, so mediation was difficult This mediator was realistic and helpful Parents see some of their expectations as unrealistic (at least from the school’s perspective) I’d go to mediation more often if you could always assign _ Thank you Group Responses addressing the good faith of the parties Dissatisfied through no fault of the mediator’s efforts It might be helpful to assure the parties’ understanding of a general willingness to make concessions and negotiate resolution © 2011 Thomson Reuters No claim to original U.S Government Works 27 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev Footnotes d1 “There’s many a slip ‘twixt cup and lip” is a traditional English proverb See Requirements Engineering Proverbs, Sayings, Maxims & Quotations, at http://easyweb.easynet.co.uk/~iany/consultancy/proverbs.htm (last visited Mar 11, 2003) dd1 Legal Methods Professor, Widener University School of Law, Harrisburg, Pennsylvania; J.D Dickinson School of Law, 1977; B.S Carnegie Mellon University, 1972; Director/Project Manger of the Pennsylvania Special Education Mediation Service from 1997-2000 The author is grateful to Nancy Welsh for her thoughtful comments on earlier drafts of this article The author also thanks her colleague, Loren Prescott, at Widener University School of Law for his suggestions and her student assistant, Dennis Dunmyer, for his reliable research The author extends special thanks to the Pennsylvania Special Education Mediation Service staff and mediators Without their cheerful support, commitment to the profession of mediation, and desire to improve educational opportunities for children, this article would not have been possible Finally, the author thanks her husband, Thomas M Place, whose editorial suggestions were insightful and whose good humor was indispensable In writing about conflict resolution education, Tricia Jones cites a U.S Department of Education national research symposium that assesses the existing research in conflict resolution education In collaboration with the Conflict Resolution Education Network, this process involved teams of educators and researchers working together to summarize and synthesize existing research and to suggest directions for future study The data shows that conflict resolution education increases academic achievement, assertiveness, attitude towards school, cooperation, communication skills, healthy interpersonal/inter-group relations, constructive conflict resolution at home and school, self-esteem, and self-control Tricia S Jones, Conflict Resolution Education: Models, Benefits, and Implementation, prepared for the Higher Education Initiative, Food for Thought Dinners, Pennsylvania Department of Education, Apr 11-18, 2000 (on file with the author) Richard Bodine and Donna Crawford have worked extensively in the area of conflict resolution education in the schools They report that among children and youth, most violence occurs between people who know each other and are of similar age and race This is part of a bleaker national picture: “More than one-fourth of male adolescents commit at least one violent offense before reaching adulthood The median age of first gun ownership is twelve-and-a-half.” Richard J Bodine & Donna K Crawford, The Handbook of Conflict Resolution Education: A Guide to Building Quality Programs in Schools (Jossey-Bass 1998) (citing D Elliot, Serious Violent Offenders: Onset, Development, Course, and Termination The American Society of Criminology 1993 Presidential Address, 32 Criminology (1994); Federal Bureau of Investigation, Crime in the United States 1993: Uniform Crime Reports (1994)) “‘The Centers for Disease Control and Prevention found that one in twenty-five high school students carry a gun.’ Suicide, murder, and gunfire are wiping out American children at higher rates than their counterparts in the rest of the industrialized world.” Id at (quoting F Hechinger, Saving Youth from Violence, 39 Carnegie Q 1, (1994)) “About 40 percent of arrests for all serious crimes are accounted for by youths between ten and twenty years of age.” Id at (citing U.S Dept of Justice, Comprehensive Strategy for Serious, Violent, and Chronic Juvenile Offenders 5-6 (1993)) For a discussion of the extent of violence in schools, see also D B Prothrow-Stith, The Epidemic of Your Violence in America: Using Public Health Prevention Strategies to Prevent Violence, J of Health Care for the Poor and Underserved (1995) Even prior to Columbine, the need for teaching conflict resolution skills at an early age was being recognized at the highest level of government In a 1993 interview, then U.S Attorney General Janet Reno stated that: [I]mportantly, we have a juvenile justice system that in many of the states is bankrupt and is starting too late You can’t start with a 16- or 17-year-old who has dropped out of school and who was the drug dealer’s gofer when he was 13 You’ve got to start earlier We can tremendous amounts of good through conflict resolution [education] programs in our public schools Stephanie B Goldberg & Henry J Jeske, Talking with Attorney General Janet Reno, 79 A.B.A J 46, 48 (1993) See Education for All Handicapped Children Act of 1975 (“EAHCA”), Pub L No 94-142, 89 Stat 773, 788-89 (1975) (amended by the Individuals with Disabilities Education Act (“IDEA”), Pub L No 101-476, 104 Stat 1103, 1141-42 (1990) (codified as amended at 20 U.S.C §§ 1400-91) (1994)) This Act guarantees to handicapped children, and their parents or guardians, the right to a free, appropriate public education This right is guaranteed through procedural safeguards including an opportunity to © 2011 Thomson Reuters No claim to original U.S Government Works 28 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev examine all relevant records, to be notified of proposed evaluations, placement, or change of placement decisions, and to have the opportunity to be heard by an impartial decisionmaker in an administrative hearing if they disagree with those decisions See 20 U.S.C § 1415 In June, 1997, President Clinton signed the IDEA Amendments of 1997 The Amendments require that all states provide the option of mediation to parents and schools involved in special education disputes See Pub L No 105-17, 111 Stat 37 (1997) (codified at 20 U.S.C.§§ 1400-91) Most states began to offer mediation during the 1980s and by 1994, thirty-nine states had special education mediation systems See Eileen M Ahearn, Nat’l Ass’n of State Dirs of Special Educ., Mediation and Due Process Procedures in Special Education: An Analysis of State Policies (1994) (on file with the author) Prior to the reauthorization of IDEA in 1997, the only mention of mediation in the federal law was in a note to the special education regulations that stated: [M]any states have pointed to the success of using mediation as an intervening step prior to conducting a formal due process hearing Although the process of mediation is not required by statute or these regulations, an agency may wish to suggest mediation in disputes concerning the identification, evaluation, and educational placement of handicapped children, and the provision of a free, appropriate public education to those children 34 C.F.R § 300.506 (1990) See 20 U.S.C § 1415(e) (2002) See Jonathan A Beyer, A Modest Proposal: Mediating IDEA Disputes Without Splitting the Baby, 28 J.L & Educ 37, 45-46 (1999) See id at 47 See Craig A McEwen & Richard J Maiman, Small Claims Mediation in Maine: An Empirical Assessment, 33 Me L Rev 237, 239 (1981) 10 See Judy A Schrag, Nat’l Ass’n of State Dirs of Special Educ., Final Report Year 4: Mediation and Other Alternative Dispute Resolution Procedures in Special Education (1996); see also Steven S Goldberg and Dixie Snow Huefner, Dispute Resolution in Special Education: An Introduction to Litigation Alternatives, 99 Educ L Rep 703, 705-06 (1995) 11 See Leonard L Riskin, Understanding Mediators’ Orientations, Strategies and Techniques: A Grid for the Perplexed, Harv Negot L Rev (1996); see also Robert A Baruch Bush, Defining Quality in Dispute Resolution: Taxonomies and AntiTaxonomies of Quality Arguments, 66 Denv U L Rev 335 (1989); Kimberlee K Kovach, Good Faith in Mediation Requested, Recommended, or Required? A New Ethic, 38 S Tex L Rev 575, 576-81 (1997); Lela Porter Love, Mediation: The Romantic Days Continue, 38 S Tex L Rev 735 (1997) 12 This lack of specific guidance has resulted in a great number of variations in state special education mediation systems For instance, in New York, mediators must be chosen from the local community dispute resolution center under contract with the New York State Office of Unified Courts that is responsible for mediation services in the county where the mediation will be held In Pennsylvania, an intermediate unit contracts with the Department of Education and is responsible for all aspects of administering the program across the Commonwealth The Consortium for Alternative Dispute Resolution in Special Education (“CADRE”) website provides links to documents that can provide information on each state system’s structure for delivering special education mediation services at http://www.directionservice.org/cadre/state (last visited Mar 8, 2003) 13 20 U.S.C Đ 1415(e)(2)(A)(iii) (2000) (emphasis added) â 2011 Thomson Reuters No claim to original U.S Government Works 29 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev 14 20 U.S.C § 1415(e)(2)(C) (2000) 15 Pa Ass’n for Retarded Children v Pennsylvania, 334 F Supp 1257 (E.D Pa 1971) 16 Id at 1260 17 Id at 1260, 1266 18 Id at 1260-61 19 See discussion of Education for All Handicapped Children Act of 1975 (“EAHCA”), supra note 20 Fran M Ellman, Opinions of State Directors of Special Education and Parent Leaders on the Implementation of Procedural Safeguards Relative to the Education of Handicapped Children and Youth (Nat’l Ass’n of State Drs of Special Educ 1985) 21 Pa Dep’t of Educ., Mediation Task Force Report of Findings and Recommendations to the Bureau of Special Education 1, (1985) 22 The Education Law Center, based in Philadelphia, began operating in 1974 The Education Law Center-PA (“ELC-PA”) is a nonprofit legal advocacy organization dedicated to insuring that all of Pennsylvania’s children have access to a quality public education Its main office is in Philadelphia, and it has a branch office in Pittsburgh It also operates the Pennsylvania School Reform Network (“PSRN”), which has its main office in Harrisburg The PSRN website, http://www.psrn.org/, includes various links of use to parents and educators, as well as a section that describes education legislation currently under consideration by the Pennsylvania legislature 23 Telephone Interview with Janet Stotland, Co-Director, Educ Law Ctr (May 8, 2002) 24 The composition of the task force included two parents of exceptional children, the Director of the Bureau of Special Education for the Pennsylvania Department of Education and his Advisor for School Psychology, and one representative from the following agencies: Parent Education Network, Parents Union for Public Schools, Allentown City School District, Education Law Center, Northwest Tri-County Intermediate Unit, and the Schuykill Intermediate Unit 25 Representatives from Connecticut, Illinois, and Massachusetts gave presentations to the MTF Neither the MTF Report nor the Appendix of materials that it references includes any discussion of what training program should be required The MTF focused on discussing the benefits of mediation, the success of states or programs already implementing mediation systems in special education, and the degree of satisfaction with due process procedures See generally Pa Dep’t of Educ., supra note 21 26 Id at (quoting from the implementing regulations of the Education of the Handicapped Act) 27 Id at 28 Id at © 2011 Thomson Reuters No claim to original U.S Government Works 30 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev 29 These goals are related to procedural justice research regarding fairness In an article summarizing the fairness of the New Jersey special education mediation system, Goldberg and Kuriloff state: [P]roponents maintain that mediation can reduce the time, expense, and emotional cost of special education disputes and that mediation can reduce the impact of resource disparities to effect fairer outcomes Our findings not support such optimistic views of the benefits of mediation The traditional focus of research regarding mediation concentrates on the requisites for shortterm mediation success: reaching agreement, serving disputant goals, and producing immediate disputant satisfaction More recent research suggests that parties’ viewing the process as fair and feeling they had an opportunity to voice their concerns are more important to long-term success These factors are especially important in special education mediations, in which cooperation and trust are essential for the success of long-term relationships Peter J Kuriloff & Steven S Goldberg, Is Mediation a Fair Way to Resolve Special Education Disputes? First Empirical Findings, Harv Negot L Rev 35, 60 (1997) 30 All mediation participants filled out a participant questionnaire from the time that PaSEMS started service The system’s first evaluation by Mastrofski contained many recommendations for revising the questionnaire format The recommendations were incorporated into the form that was then used without further revision from 1991-2001 See Jennifer A Mastrofski, Center for Research in Conflict and Negotiation, Evaluation of Pennsylvania Special Education Mediation Services (“PaSEMS”): Final Report 3-9 (Nov 1989) 31 Many in the field dispute whether an agency can assess these concepts in practice An art is best observed, and the effort to specify the criteria for watching art is a worthy enterprise Like all ‘art criticism,’ however, it is not clear to me that we will always have convergence in our evaluations If the Interim Guidelines are tested in more settings (and subjected to test validation studies) we will learn more about whether it is possible to create a science of evaluation in this field Carrie Menkel-Meadow, Measuring Both the Art and Science of Mediation, Negot J 321, 325 (1993) 32 The Bureau of Special Education of the Pennsylvania Department of Education convened a focus group in December 2001 and April 2002 “One of the resulting themes from our December 11th conversation was a recommendation that additional options for early conflict resolution strategies (beyond mediation) be provided for school staff, parents and mediators, as well as for hearing officers, attorneys and other stakeholders.” Letter from John J Tommasini, Assistant Director, Pa Dept of Educ., to Janet Stotland, Co-Director, Educ Law Ctr (Mar 27, 2002) (on file with the author) See also Memorandum from Bureau of Special Education Focus Group, Pa Dept of Educ (Mar 20, 2002) (on file with author); Rhonda Beach Tyree et al., GLARRC, Special Education Mediation: Level of Use or Non-use in Pennsylvania Evaluation Report (Mar 2002) (on file with the author) 33 Pa Dep’t of Educ., supra note 21, at 6-7, 10-13 34 The California Mediation Director describes a state system that has moved in that direction Rather than direct discussion among the parties, he reports that attorneys are the main players in the process The mediation system is actually a mechanism of caucusing between lawyers and clients Stakeholders rarely talk with each other directly There is no direct brainstorming and discussion; most parents retain attorneys throughout the process Jonathan Beyer & Edward Feinberg, The Role of Attorneys in Special Education Mediation; Position II: In Favor of Exclusion of Attorneys, available at http://www.directionservice.org/cadre/roase.cfm (last visited Mar 8, 2003) 35 Pa Special Educ Mediation Services, Operations Manual (June 1992) [hereinafter Operations Manual] Due to the changes in office location, this was the earliest operations manual that could be located Many changes to the mediation process were suggested by the data gathered, all of which focused on increasing the use of the mediation process and mediators earlier in the process of developing an individualized education program © 2011 Thomson Reuters No claim to original U.S Government Works 31 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev 36 See id at 10-11 This time limit offered a stark contrast to due process hearings that could take months or even years to reach resolution The MTF wished to give both parents and school districts a realistic means to reach quick resolution regarding children’s educational programs 37 Pa Special Educ Mediation Service, Your Guide to Mediation (Dec 1998) See also Operations Manual, supra note 35, at 14 38 Operations Manual, supra note 35, at 29 39 Id 40 See id at 32 41 Id at 11 Whether rightly or wrongly, attorneys were viewed as being responsible for creating an antagonistic atmosphere and obstacles to the quick resolution of the issues Further, the inclusion of attorneys was viewed as detracting from the goal of selfdetermination of the parties The formality of having attorneys present would jeopardize the mediators’ ability to create an atmosphere that was not threatening 42 Pa Dep’t of Educ., supra note 21, at 11 43 See id at 12; see also Operations Manual, supra note 35, at 24 44 See Operations Manual, supra note 35, at Although excluding attorneys from the mediation process was not directly recommended by the MTF, attorneys were clearly viewed as responsible for the antagonism and divisiveness associated with the due process system 45 It is also interesting to note that in the 1992 Operations Manual, the following goal is added: “The ultimate goal of the mediation session is a signed, written agreement in which the parties to a dispute describe what each agrees to This agreement must be compatible with state and federal laws and regulations.” Id This language regarding compliance with the law and the formality of an agreement that describes the legal obligations of the parties is an early sign that the original goals of the MTF were being subsumed by the culture within the educational bureaucracy 46 In its recommendations regarding who should serve as a mediator, the MTF stated: Qualifications of mediators should be determined by their knowledge and experience with education and applicable special education regulations However, the MTF committee questioned the existence of a positive correlation between the degree of expertise in special education and the degree of success in mediation Successful mediation seems to be determined by factors not necessarily related to education, such as characteristics of patience, sincerity, and warmth [T]he bureau [should] pursue individuals with qualifications that include knowledge and experience in the education of exceptional students and in the laws, regulations, and standards governing special education programs Moreover, the bureau is encouraged to recruit individuals who bring to mediation personal characteristics that reflect sincerity, patience, integrity, and instill trust Pa Dep’t of Educ., supra note 21, at 10 47 Neighborhood Justice Ctr of Atlanta, Inc., Training Manual for Mediators 17 (1987) [hereinafter Training Manual] 48 Id at 19 © 2011 Thomson Reuters No claim to original U.S Government Works 32 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev 49 This is defined in the training manual as the ability to help a person “think through the consequences of his/her position, confront inconsistencies and unrealistic outlooks; create doubt.” Id at 28-29 50 See id at 29 51 Training Manual, supra note 47, at 50 (capitalization and underlining in original) 52 See id at 50-56 53 See Neighborhood Justice Ctr of Atlanta, Inc., Mediation in Special Education 66 (1997) 54 See id at 67 55 Id at 73 (underlining in original) 56 In 1997, with a change of director, PaSEMS training began focusing on mediation techniques in different models of mediation, theories of negotiation, and creative facilitation and problem-solving, in addition to legal updates 57 PaSEMS also sent out follow-up questionnaires both ten days and six months after the mediation session 58 This fact is significant and is discussed more fully in Part III of this paper However, it is worth noting that when the process of developing an evaluation instrument began, the only documents reflecting the embedded values in the PaSEMS operations were the MTF Report and Operations Manual The Manual, revised in 1992, articulates the purpose and goals of the mediation system, explains how the caucus should be conducted, and details all forms and phases of the process See Operations Manual, supra note 35, at 32 Mediator selection is detailed and disqualification is outlined in the limited circumstance of mediator affiliation with an “interested agency.” Id Mediators were evaluated under this Operations Manual based on their attendance at training, their flexibility in accepting mediation assignments, the performance of the mediator based on participant evaluations (which meant only that there were no obvious or flagrant problems with the way the mediator handled an individual session as opposed to an indepth analysis of the aggregate participant data), and the actual number of mediations accepted compared to the number offered This rating system was abandoned in the mid-1990s because many mediators expressed dissatisfaction with a rating that relied to a large degree on availability rather than skills 59 See Mastrofksi, supra note 30 60 Id at 61 See id at 3-9 From its beginning, PaSEMS asked mediation participants to complete evaluations at the end of the mediation session All of the data from those questionnaires was kept in a database Summaries of the participant responses from each session were sent to the mediators who handled the session Other than these questionnaires, there was no formal observation or evaluation of mediator performance © 2011 Thomson Reuters No claim to original U.S Government Works 33 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev 62 Id at iv 63 See Mastrofksi, supra note 30, at 80-91 64 Discussing the institutionalization of court-annexed mediation processes, Welsh states: Believers in the originally dominant vision of self-determination assumed that the disputing parties would be the principal actors and creators within the mediation process However, as mediation has been institutionalized in the courts and as evaluation has become an acknowledged and accepted part of the mediator’s function, the original vision of self-determination is giving way to a vision in which the disputing parties play a less central role Nancy A Welsh, The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization? Harv Negot L Rev 1, (2001) Although the Mastrofski evaluation did not recommend significant policy or procedure changes, its lack of attention to the specific relationship, self-determination, and collaborative problem-solving goals established by the MTF is one way in which the agency’s focus begins to adapt to more measurable outcomes See Mastrofski, supra note 30 65 The Mediation Advisory Panel was composed of the same representative stakeholders as had comprised the MTF 66 In 1997, the Central Susquehanna Intermediate Unit, Number 16 (one of twenty-nine local education agencies in the Commonwealth that provide special education services to school districts) took charge of program administration from Schuykill Intermediate Unit, Number 29 67 See Table 1, infra, for statistics on requests for due process hearings and appeals 68 See Table 2, infra 69 Statistics compiled by the Pennsylvania Department of Education for Focus Group meeting on April 15, 2002 70 The number of decisions does not reflect the number of hearings held because some cases may have been canceled after a hearing session was held Also, prior to July 1, 2000, hearing officers’ written and signed agreements were considered decisions even if there had not been a hearing 71 Statistics compiled by the Pennsylvania Department of Education for a focus group meeting on April 15, 2002 72 The data summarized in this section does not include the participant questionnaires from the observed mediation sessions For the observed sessions, participants were interviewed both before and after the mediation session In addition, a third-party observer was present in the session taking notes and intently observing the actions and reactions of the parties In the observed sessions, participants were interviewed both before and after the session, and this undoubtedly would have affected how the participant responded to the questionnaire inquiries As a result, the questionnaire data for the observed sessions was not collected More information on the participants’ perceptions of procedural fairness of the mediation process will be discussed in a forthcoming article by Nancy Welsh, and the implications for training based on those perceptions are the anticipated subject of a future article by the author and Professor Welsh 73 A copy of the questionnaire including aggregate data responses is contained infra in Appendix A © 2011 Thomson Reuters No claim to original U.S Government Works 34 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev 74 Mastrofski’s report recommended several changes to the structure of the participant questionnaires See Mastrofski, supra note 30, at v The recommended revisions were made and PaSEMS utilized the revised questionnaires until the agency ceased to exist in July 2001 At this time, PaSEMS merged with the Right to Education Office to create an umbrella agency name the Office of Dispute Resolution (“ODR”) ODR administers all forms of dispute resolution in special education, including due process hearings and telephonic facilitation 75 See infra Appendix A 76 Because the structure of the mediation process only allows three people to appear on either side of the dispute, the data from the questionnaires reflects an almost even division between parents or their representatives and school officials 77 See infra Appendix C 78 Appendix A, infra, provides the entire questionnaire with the summary of responses for each question 79 This would seem to substantiate that the selection of mediators had been successful under the guidelines expressed in the MTF Report See Pa Dep’t of Educ., supra note 21, at 10; Operations Manual, supra note 35, at 29-36 80 In discussing court-connected mediation, Welsh distinguishes between settlement and justice and comments: The experience of justice should not be set aside as some ‘sweet old fashioned notion’ that has outlived its usefulness to modern, settlement-directed civil litigation Instead, mediation, the ‘alternative’ process now struggling with its own success, should be allowed to demonstrate that justice should have everything to with the ‘world of bargaining,’ particularly when the bargains are being struck within the realm of our courts Nancy A Welsh, Making Deals in Court-Connected Mediation: What’s Justice Got to Do With It?, 79 Wash U L.Q 787, 861 (2001) 81 See infra Appendix C 82 For a complete list of the responses to this question, see infra Appendix C 83 Christopher Honeyman has been working on defining the skills of mediators since the mid-1980s See Christopher Honeyman, Five Elements of Mediation, Negot J 149 (1988) The Test Design Project (1990-1995) formalized this effort See Nat’l Inst for Disp Resol., Performance Based Assessment: A Methodology, For Use In Selecting, Training and Evaluating Mediators (1995), available at http://www.colorado.edu/conflict/Theory_to_ Practice/Method.pdf (last visited Mar 8, 2003); see also Brad Honoroff et al., Putting Mediation Skills to the Test, Negot J 37 (1990) (describing how they used Honeyman’s framework as a starting point for developing a test for selecting mediators) 84 Documents reviewed included the Task Force Report of November 1985; Evaluation of Pennsylvania Special Education Mediation Services, November 1989; and the Policies and Procedures Manual that was published as revised in 1992 85 See Robert A Baruch Bush, Mixed Messages in the Interim Guidelines, Negot J 341, 344-45 (1993) 86 This commonly shared concern for procedural fairness expressed by the mediator working group is discussed by Marchese: In the absence of outside advocacy, the quality and training of the mediator as well as their approach to mediation, become more © 2011 Thomson Reuters No claim to original U.S Government Works 35 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev important in ensuring fairness in the mediation process Another worthy suggestion is to encourage mediators in the special education context to employ a variety of approaches including facilitative and evaluative techniques, to mediating special education disputes In addition, more strict oversight and training by states will fill in gaps left by the IDEA statute Steven Marchese, Putting Square Pegs Into Round Holes: Mediation and the Rights of Children with Disabilities Under the IDEA, 53 Rutgers L Rev 333, 362-64 (2001) 87 See infra Appendix B (Skills 7A, 7B, 8A, and 8B) 88 The ADA Mediation Guidelines were published in 2000 See ADA Mediation Guidelines, Cardozo Online J Conflict Resol (2000), available at http://www.cardozo.yu.edu/cojcr/new_site/index.htm (last visited Mar 8, 2003) The Americans with Disabilities Act is similar to IDEA with respect to the protections it offers its stakeholders According to the Guidelines, the capacity of the party should be evaluated by the mediator with reference to a party’s ability to understand the nature of the mediation process, the mediator’s role, the relationship of the parties to the mediator, and to issues to be discussed See id 89 Each mediator skill is defined and indices of good to poor performance accompany the definition The scales are reprinted in their entirety, infra, in Appendix B 90 The workgroup expressed their opinion that intimidation, lack of power, and lack of expertise were often factors for parents and should be addressed by the mediator in a manner that “leveled” the playing field and helped parents see the process as evenhanded 91 CADRE is the national technical assistance provider contracted through the U.S Department of Education to assist states in developing and maintaining mediation systems Through CADRE, the video was distributed to over twenty states interested in these questions 92 For a complete summary of rating data, see infra Appendix B 93 Nancy Welsh observed two mediations and the author observed six After their initial observations, the evaluators discussed their ratings and reconciled any differences they had in terms of interpretation of the performance indices Also, it should be noted that Ms Welsh had formerly been director of the Mediation Center in Minneapolis, and in that role, she developed similar evaluation scales in the Test Design Project See supra note 83 The author has extensive experience in special education and mediation that includes evaluating hearing officer and special education appeal panel opinions, training hearing officers, and selecting and training mediators In terms of the Elements of Mediation instrument, the workgroup tested the consistency of different individuals’ measurement of skills This was done by creating a videotape that was designed to present mediators with different philosophical approaches to the same special education dispute Each workgroup member evaluated the mediators’ performances using the Elements of Mediation scale and then compared their results There was no statistically significant variation in the measurements on this test run of the evaluation instrument (results on file with the author) 94 The participant data summarized in Part II of this article necessarily includes responses from many participants who used these mediators The fact that three of the eight mediators observed were retired from full-time employment and had the ability and desire to travel across the Commonwealth means that they were frequently assigned to mediations 95 In the spring of 2001, prior to the observations, at a regular training of the PaSEMS office, all mediators completed “MCI’S PROBLEM DEFINITION” survey © 2011 Thomson Reuters No claim to original U.S Government Works 36 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev 96 Within the facilitative-broad quadrant of the Riskin grid, one mediator fell in the mixed zone, one mediator fell in the strong facilitative-broad zone, and the rest fell in the average facilitative-broad zone See Riskin, supra note 11, at 32-34 97 The evaluation data reflects observations of eight separate mediation sessions conducted by six mediators The original evaluation instruments with comments are on file with the author The scores and skill descriptions of the behaviors relevant to those skills are summarized, infra, in Appendix B 98 See infra Appendix C 99 As in the case of elements 7A and 7B, it was the consensus of the workgroup and PaSEMS administrators that some situations require the mediator to suggest options and to assist the parties in evaluating them Although there was strong discussion on whether this was ever appropriate, this element was eventually accepted by the workgroup Much attention was given to the wording that describes the skills in both and 100 This parent participated in a post-mediation interview and was advised by the evaluator on how to get additional information and guidance regarding these allegations 101 See Pa Ass’n for Retarded Citizens v Pennsylvania, 334 F Supp 1257 (E.D Pa 1972) 102 The civil rights secured under the PARC consent decree are comparable to the rights secured by African-Americans through the Voting Rights Act In writing about voting rights, Lani Guinier suggests that it takes more than legislative change and constitutional protections for African-Americans to achieve a meaningful vote Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 Va L Rev 1413, 1416 (1991) She suggests that it is necessary to change the conceptual framework of the majority culture to ensure participation of minorities at the municipal and county levels of government Id at 1494-1513 Similarly, perhaps meaningful participation in educational decision-making by the families of disabled children can only be realized through a shift to an interest-based framework in the culture of the schools 103 See Education for All Handicapped Children Act, supra note 104 In many ways, the small advocacy community for disabled children was similar to the small community of men who were considered the founding fathers of our country What’s more, the shape and character of the political institutions were determined by a relatively small number of leaders who knew each other, who collaborated and collided with one another in patterns that replicated at the level of personality and ideology the principle of checks and balances imbedded structurally in the Constitution Joseph J Ellis, Founding Brothers: The Revolutionary Generation 13 (Vintage Books 2002) (2000) Just as these men repeatedly participated in the debates that structured our government, a relatively small group of people with a passionate sense of responsibility were continuously involved with shaping the educational map for disabled children in the decade following PARC The early emphasis on children’s and parents’ rights by the legal advocates for that community, combined with the institution’s (in this case state government’s) legal obligation to respond to that emphasis may have resulted in the development of a special educational bureaucracy that institutionalized adversarial conflict as the means to resolve disputes 105 In reviewing the impact of the passage of the Education for All Handicapped Children Act of 1975 (“EAHCA”), Perry Zirkel comments: In recent years special education has been one of the most active areas of litigation in school law This activity has been based in large part on the passage of the [EAHCA], which has been described by contemporaneous commentators in effusively expansive terms These decisions required the state to provide these unserved youngsters with access to school by means of procedural relief, such as due process hearings The ‘second generation’ of court decisions represented a transition to substantive questions, © 2011 Thomson Reuters No claim to original U.S Government Works 37 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev such as the quality of education to which the estimated 2.5 million handicapped youngsters receiving services are entitled Perry A Zirkel, Building an Appropriate Education from Board of Education v Rowley: Razing the Door and Raising the Floor, 42 Md L Rev 466, 466 (1983) (citations omitted) The Supreme Court’s decision in Board of Education v Rowley was the first pronouncement of what constituted an appropriate program See Bd of Educ v Rowley, 101 S Ct 1343 (1981) 106 Another commentator on Rowley notes that the passage of the EAHCA and the Court’s pronouncements on its application resulted in a heightened focus by schools on procedural safeguards to the point of overriding the substantive educational benefits in an Individualized Education Program (“IEP”) plan: A question that remains unanswered is how a school’s failure to abide by the procedures set out in the Act will affect the validity of the school’s plan It is arguable that if the IEP is reasonably calculated to prove an educational benefit, a breach of the procedural mechanism becomes insignificant In light of the stress the Court laid on those mechanisms, however, such nonadherence will be difficult for a reviewing court to overlook Phillip William Clements, Board of Education v Rowley: The Supreme Court Takes a Conservative Approach to the Education of Handicapped Children, 61 N.C L Rev 881, 902-03 (1983) 107 This paradox is stated by Susan Silbey: Although rights and processes of appeal are clearly specified, parents are reluctant to bring appeals, even though they may disagree with a proposed IEP The decision to appeal a local decision or education plan may mean that a child goes without services entirely Parents are also reticent to appeal lest they end up antagonizing the people with whom they share decisionmaking responsibility during a child’s educational career, people who must authorize continuing service and who will regularly provide direct service to the child The delay between filing appeals, arranging mediation sessions, possibly continuing on to formal hearings, and then obtaining decisions has become a regular feature of special education, with direct, often detrimental consequences for children Susan S Silbey, Patrick Davis: ‘To Bring Out the Best To Undo a Little Pain in Special Education Mediation, in When Talk Works: Profiles Of Mediators 61, 68, 70 (Jeffrey Z Rubin ed., 1994) 108 See Pa Dep’t of Educ., supra note 21, at 109 Pa Stat Ann tit 24 §§ 9-951, 9-957, 9-958, 9-967.1 (West 2002) 110 See Robert A Baruch Bush & Joseph P Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (Josey-Bass 1994) Parents had been disenfranchised in the educational enterprise for many years The recommendations of the MTF predate Bush and Folger’s work but embody the potential of mediation as described by these authors The authors describe empowerment as “realizing and strengthening one’s inherent human capacity for dealing with difficulties of all kinds by engaging in conscious and deliberate reflection, choice and action,” id at 81, and “when disputing parties experience a strengthened awareness of their own self-worth and ability to deal with whatever difficulties they face,” id at 84 111 Nancy Welsh, in referring to what she labels the “thinning vision” of self-determination, makes the following observation about institutionalization of court-connected mediation processes: However, as mediation has been institutionalized in the courts and as evaluation has become an acknowledged and accepted part of the mediator’s function, the original vision of self-determination is giving way to a vision in which the disputing parties play a less central role Thus even as most mediators and many courts continue to name party self-determination as the ‘fundamental principle’ underlying court-connected mediation, the party-centered empowerment concepts that anchored the original vision of self-determination are being replaced with concepts that are more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through settlement Nancy Welsh, The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?, Harv Negot L Rev 1, 4-5 (2001) © 2011 Thomson Reuters No claim to original U.S Government Works 38 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev 112 The purpose of this paper is not to discuss whether or not special education mediation can be housed in an educational agency, but rather what steps any agency should consider in selecting, training, and evaluating mediators in order to assure that the process is substantively and procedurally fair 113 See infra Appendix B 114 See infra Appendix B 115 In the observed mediation sessions, this was expressed as the mediator not picking up cues on relationship issues For instance, in the first mediation I observed, the parent stated that he was uncomfortable during meetings with the school district regarding his child’s IEP because there were too many people in the room In my notes of this session I wrote, “[c]ould have worked with school district’s apology and parent’s suggestions regarding meetings.” Also, the mediator did not pick up the language of the school district as being clinical and cold The district used terms such as “low functioning kid” and “mental deficiency,” which clearly impacted the parent and had the effect of silencing him 116 See infra Appendix B 117 See id 118 See id 119 See id 120 This was evidenced frequently during the time the author directed PaSEMS operations For example, during a break in a mediation session a mediator called me to try and brainstorm a way around what seemed to be an impasse The issue that was under discussion was whether the continued placement of a child in a non-integrated setting was appropriate The child had never been in a regular school class but had enjoyed success and realized meaningful educational benefit in the segregated setting The parents wanted the child to be “mainstreamed” in a regular school class with supplementary services while the district maintained that she was in an appropriate setting and should not be moved In a decision by the Third Circuit, the court articulated a twoprong test for determining when mainstreaming is appropriate See Oberti v Bd of Educ., 995 F.2d 1204, 1215-18 (3d Cir 1993), aff’d per curiam, 101 F.3d 691 (3d Cir 1996) Over the phone, we discussed the two-prong test that the court established, paying particular respect to the three factors listed under the first prong See id When the mediator returned to the mediation, she posted the three factors listed under the first prong of the court’s test, which included the steps taken to try and include the child in a regular classroom, the comparison of educational benefits in a segregated setting compared to the educational benefits in a regular classroom, and the possible negative effects of including the child in the regular classroom See id The school district agreed that this was the appropriate standard to apply and, within a short time, agreed to a regular school placement Since no attempts had been made to include the child in a regular classroom, the district had very little to justify its continued support of an integrated setting 121 Given the history of mediation in Pennsylvania, it is legitimate to question whether mediators can be given any legal training without it essentially dominating the dynamics and interactions between the parties in a mediation session To analogize, first year law students at Widener University Law School learn to identify relevant facts in a case In order to identify the relevant facts they must first learn what rule of law pertains because without knowing the relevant law, they cannot generate a discussion of alternative views of its application Similarly, in mediation, when parents are unaware of the law, the analysis they bring to a discussion of their child’s educational program revolves around the concepts and observations that are relevant to their daily lives; what they see at home, the homework assignments, the notes or conversations they have had with the teachers When they bring this to the discussion, it is helpful in terms of communicating their goals and frustrations, but it may not pertain or obviously © 2011 Thomson Reuters No claim to original U.S Government Works 39 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev connect to the standard the school district is relying on to determine the appropriateness of its recommended program If mediators are also unaware of the applicable legal standard and how to apply it to the facts and concerns of the parents, then the district’s view of the law is bound to dominate and shape any agreement reached 122 During another mediation that I observed, the parent took the position that his child did not need a comprehensive educational evaluation In describing his child’s learning style, the parent unknowingly described what is typically regarded as evidence of the need for extended school year services The mediator was also unaware of this entitlement and the district did not acknowledge the possibility of an extended school year entitlement until I asked for clarification of that possibility in caucus See 22 Pa Code § 14.132(2)(i)-(vii) (2002) (stating the factors that reveal when a student requires extended school year services) 123 Giving mediators reprints of all of the state and federal statutes and regulations may provide a reference, but it may also create for the non-lawyer a sense of intimidation and uncertainty in discussing the implications of the law In a training session that I observed, a state Department of Education spokesman was explaining, at great length, the changes in the state regulations based on the 1997 reauthorization of IDEA A mediator stopped the presentation to ask a question about how to find a specific regulation when needed For example, he asked if he needed to know what the regulation said about testing, and how he could find it in the 200 pages of documents he got in training The spokesman answered that the mediator probably could not find the relevant regulation without knowing much more about the law 124 The recommendations should be read as suggestions for agencies and practitioners to consider with the understanding that more research is needed regarding what would be a fair and just mediation process 125 There has been little empirical study to support the claims of improved relationship that many mediators and mediation agencies espouse Dwight Golann conducted one such study In his findings, he states: Even when able mediators work with parties whose dispute arises in the context of a significant prior connection with each other, relationship repairs in legal mediation appear to be uncommon events: even excluding court mediators, who reported no repairs at all, study respondents achieved a repair in only 20% of their cases Dwight Golann, Is Legal Mediation a Process of Repair or Separation? An Empirical Study and Its Implications, Harv Negot L Rev 301, 331 (2002) 126 See generally Timothy Hedeen, CADRE, Using Participant Feedback to Evaluate and Improve Quality in Mediation (2002) at http:// www.directionservice.org/cadre/particpant_feedback2002.cfm (last visited Mar 11, 2003) (briefing paper for CADRE focusing on the “use of participant questionnaires in evaluating mediation programs”) There are also many who maintain that participant satisfaction surveys that rely on respondents making absolute judgments, such as labeling five statements about the process as “very satisfactory” or “not satisfactory,” are simply inaccurate Reasoning from the assumption that people are much better at making comparative judgments, especially in matters that have emotional significance to them, participant satisfaction surveys in special education mediation should perhaps be based on a set of questions that require comparative choices 127 Based on the survey results summarized in Part II, the initial impressions of the parties regarding the mediator’s control and explanation of the process are important Using this opportunity to clarify the scope and goals of the mediation is a logical choice When mediators are not lawyers, it is critical for them to avoid the appearance or the reality of engaging in the practice of law By offering a disclaimer regarding these intentions initially, the parties would be empowered with the understanding of the difference between practicing law and simply understanding and discussing legal standards Distinguishing between the work of lawyers and the work of mediators and dispute resolution professionals is a fuzzy enterprise The blurring of boundaries is problematic because it creates tensions and unnecessary battles This is an odd phenomenon because it is happening at the same time that many in the legal profession are embracing a new ethic of problemsolving that encourages collaboration with other disciplines and honors the value of compromise, accommodation, and reconciliation Jacqueline M Nolan-Haley, Lawyers, Non-Lawyers and Mediation: Rethinking the Professional Monopoly from a ProblemSolving Perspective, Harv Negot L Rev 235, 240-41 (2002) © 2011 Thomson Reuters No claim to original U.S Government Works 40 WILLIAM GOLDMAN 10/3/2011 For Educational Use Only ACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: , Harv Negot L Rev The recommendation above is an attempt to recognize the “blurry” present reality and use the collective skills of mediators and legal professionals in drawing reasonable boundaries and supplementing each other’s skills 128 Data from mediator observations and the participant surveys demonstrate the importance of the parties’ perceptions of mediator neutrality 129 See infra Appendix B 130 This is provided for in the IEP development process Under state regulations parents and districts have five days after the issuance of the Notice of Recommended Assignment (“NORA”) to change their minds regarding the proposed placement See 22 Pa Code § 14.161(5) (2002) 131 Ann C Hodges, Dispute Resolution Under the Americans with Disabilities Act: A Report to the Administrative Conference of the United States, Admin L.J Am U 1007, 1054 (1996) 132 Peter T Coleman & Ying Ying Joanne Lim, A Systematic Approach to Evaluating the Effects of Collaborative Negotiation Training on Individuals and Groups, 17 Negot J 363, 367-68 (2001) 133 For a survey of dispute resolution alternatives being implemented in other states, see Judith Schrag, State Mediation Systems - A NASDE Report (2002), available at http://www.directionservice.org/cadre/qta_table.htm (last visited Mar 11, 2003) Alternatives range from advisory opinion processes in Connecticut and Massachusetts to an ombudsperson project in Vermont The advisory opinion process provides an informal hearing, akin to an appellate argument, where both sides have forty-five minutes to present their cases with no cross-examination or objections permitted Fifteen minutes are given to each side to ask questions A nonbinding opinion is rendered within thirty minutes, which may, in turn, provoke settlement discussions The ombudsperson project gives a designated person authority to interview school employees and parents and to conduct investigations on IDEA or 504 disputes The ombudsperson then writes a report and gives recommendations For preliminary work on evaluating the effectiveness of different models, see also Judy Schrag and Howard L Schrag, Status of Annual Dispute Resolution Effectiveness and Impact Measurement, available at http:// www.directionservice.org/cadre/nasdse.cfm (last visited Mar 11, 2003) End of Document © 2011 Thomson Reuters No claim to original U.S Government Works © 2011 Thomson Reuters No claim to original U.S Government Works 41