ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
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ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
WILLIAM GOLDMAN 10/3J2011For Educational Use OnlyACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION:..., 8 Harv. Negot. L. Rev....8 Harv. Negot. L. Rev. 20 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC01Harvard Negotiation Law Review-Spring 2003ArticlesACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION: MANY A SLIP 'TWIXT VISION AND PRACTICE? dlGrace E. D’AloddlCopyright (c) 2003 Harvard Negotiation Law Review; Grace E. D’AloAbstractAs a result of recent federal legislation, states are required to pro ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACvide mediation as a dispute resolution option to parents and school districts involved in special education disputes. Although states are mandated toACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
provide mediation sendees, the lawgives little guidance as to how states should select a mediation model, select mediators, or measure mediator perforWILLIAM GOLDMAN 10/3J2011For Educational Use OnlyACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION:..., 8 Harv. Negot. L. Rev....8 Harv. Negot. L. Rev. 20 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACram 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 Penns ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACylvania Special Education Mediation Service. Next, the article looks at two sources of program data: one quantitative and the other qualitative. TireACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
former consists of approximately two thousand participant post-mediation questionnaires collected over three years, from 1997-2000. The latter *202 soWILLIAM GOLDMAN 10/3J2011For Educational Use OnlyACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION:..., 8 Harv. Negot. L. Rev....8 Harv. Negot. L. Rev. 20 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACe 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 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACof program quality to stakeholder goals and program design.IntroductionIn Pennsylvania and across the country, those engaged in shaping public policyACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
on education believe that teaching collaborative processes, such as mediation and other forms of alternative dispute resolution, will lead to belter oWILLIAM GOLDMAN 10/3J2011For Educational Use OnlyACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION:..., 8 Harv. Negot. L. Rev....8 Harv. Negot. L. Rev. 20 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC 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 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC ages.3 Second, as discussed below, there has been a growing dissatisfaction with the limitations of the legal system. In the school context, the legaACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
l system, through its blunt litigation structure, is viewed as too time consuming and adversarial to resolve the ofren-subtle conflicts between agenciWILLIAM GOLDMAN 10/3J2011For Educational Use OnlyACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION:..., 8 Harv. Negot. L. Rev....8 Harv. Negot. L. Rev. 20 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACcation 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 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC ("1DEA”).J directed states to provide a due process hearing system for parents who challenge the identification, evaluation, placement determinationsACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
or other decisions regarding specially designed instruction. In response to criticisms regarding the inefficiency, expense, and ultimate ineffectivenWILLIAM GOLDMAN 10/3J2011For Educational Use OnlyACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION:..., 8 Harv. Negot. L. Rev....8 Harv. Negot. L. Rev. 20 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACchanism for resolving disputes.;In the reauthorization of the IDEA in 1997. Congress mandated that mediation be available, at a minimum, whenever a dueWestlawNext '& 2011 Thomson Reuters No claim (0 original U S. Government Works.1WILLIAM GOLDMAN 10/3/2011For Educational Use OnlyACCOUNTABILITY IN SP ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACECIAL EDUCATION MEDIATION:..., 8 Harv. Negot. L. Rev....process hearing is requested.6 Congress turned to mediation for several reasons. First, studieACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
s showed that mediation could resolve IDEA disputes more quickly and more cheaply than due process hearings.? Second, due to its informal nature, mediWILLIAM GOLDMAN 10/3J2011For Educational Use OnlyACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION:..., 8 Harv. Negot. L. Rev....8 Harv. Negot. L. Rev. 20 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACmore 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 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC more effective and constructive relationships. The reauthorization envisions that deeper mutual under-standing benefits children with disabilities byACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
resolving program disputes faster and by reducing the possibility of future conflicts. 10As Congress finalized the reauthorized IDEA regulations, schWILLIAM GOLDMAN 10/3J2011For Educational Use OnlyACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION:..., 8 Harv. Negot. L. Rev....8 Harv. Negot. L. Rev. 20 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACation 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 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC 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 roleACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
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 aWILLIAM GOLDMAN 10/3J2011For Educational Use OnlyACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION:..., 8 Harv. Negot. L. Rev....8 Harv. Negot. L. Rev. 20 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACng 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 do not provide any guidance to the states regarding what model would be appropriate ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACfor the resolution of IDEA disputes. 12 The IDEA simply requires state and local education agencies to employ “qualified” mediators who are “trained iACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
n effective mediation techniques” 13 and “knowledgeable in laws and regulations relating to the provision of special education and related servlces.'TWILLIAM GOLDMAN 10/3J2011For Educational Use OnlyACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION:..., 8 Harv. Negot. L. Rev....8 Harv. Negot. L. Rev. 20 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACithout 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 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACyears prior to the IDEA’S mandate, the state education agency (Pennsylvania Department of Education) had even less guidance on which mediation model aACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
nd training program was appropriate. The theoretical basis for the models described above-facilitative. evaluative, and transformative—was just beginnWILLIAM GOLDMAN 10/3J2011For Educational Use OnlyACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION:..., 8 Harv. Negot. L. Rev....8 Harv. Negot. L. Rev. 20 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACng 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.Ute Blueprint for Special Education MediationHandicapped children and their families were first invited to the table of ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRACpublic education in Pennsylvania by what is commonly referred to as the “PARC consent decree.'TS Prior to 1971. Pennsylvania law permined school distrACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
icts 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 CWILLIAM GOLDMAN 10/3J2011For Educational Use OnlyACCOUNTABILITY IN SPECIAL EDUCATION MEDIATION:..., 8 Harv. Negot. L. Rev....8 Harv. Negot. L. Rev. 20 ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC 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.!? Under the procedural safeguard provisions of the PARC consent decree, children were entitled to a re ACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC-evaluation of their educational placement every two years, an annual re-evaluation at the request of the parent, and notice and opportunity for a heaACCOUNTABILITY_IN_SPECIAL_EDUCATION_MEDIATION_MANY_A_SLIP_‘TWIXT_VISION_AND_PRAC
ring regarding evaluation, identification, or placement decisions. 13 This opportunity W'as guaranteed in state regulations creating the “due process”Gọi ngay
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