All three are dispute resolution processes provided in the Individuals with Disabilities Education Act (IDEA) and state special education law.
A due process hearing is a formal process that looks a lot like court. There is a hearing officer, who hears the evidence and issues a decision. There are exhibits, witnesses, and motions. There are nearly always attorneys. In Connecticut, advocates are not permitted to represent families in due process hearings, although parents may represent themselves (as “pro se” parents). The entire process is very complex and can take months or longer.
The good news? Nearly always, when anyone files for a due process hearing, the situation resolves without a hearing–through a mediation agreement or other settlement.
Mediation is an informal process that is completely voluntary. It is typically done virtually and takes about a day to do. Parents can go on their own, with an advocate, or with an attorney. There is no need to have witnesses, etc., as there will be no testimony.
Remember that the mediator is NOT a decision-maker but is simply there to try to facilitate agreement between the family and the school district.
Most cases resolve at mediation. At the same time, because mediation is “less formal,” it can seem simpler than it actually is. It’s important to remember that a mediation agreement is a legal document, enforceable in court, and so whether an attorney goes to mediation or not, the family may want to ask an attorney to review the agreement prior to their signing.
For example, a common pitfall with agreements is the waivers. Most mediation agreements include a “waiver of claims” that may or may not be worth what the child is receiving. Very generally, a waiver of claims often means that the family cannot file for a hearing or file a lawsuit or a complaint to get compensation for anything that happened in the past and sometimes into the future, depending on the waiver. Since mediation agreements nearly always include this waiver (which is often non-negotiable for the district), parents must, must, must know whether or not this is OK for their child or whether signing the agreement could unreasonably weaken the child’s overall case. If you are confused and unsure about what this paragraph means, you are not alone. Which is the reason that many families have an attorney review their agreement before the agreement is signed. Seriously, I had a family come to me that was happy they received something like a $5,000 independent evaluation for the child in mediation–not realizing that they had inadvertently waived claims that, if not waived, might have enabled the child to receive two years at an excellent $100,000 a year private placement. Just an example.
State complaints are extremely simple–essentially a letter to the state describing legal violations committed by the district. The family can do this on their own, with an advocate, or with an attorney. The state can order remedies. Once the family sends the complaint to the state and the district, the state has 60 calendar days to issue a decision.
Personally, I prefer to file state complaints regarding very black-and-white issues (e.g., a district not following procedures or time lines that impact the child), rather than something that is more complicated to investigate, like whether or not a child’s program is appropriate. An article I wrote regarding state complaints is here. And more advanced tips that I wrote are here.
Note that I am not an attorney, and this is not legal advice.
If you have any questions about this article or anything else related to navigating special education, Section 504, or Birth to Three, please email me at diane@ed-advocacy.com or call (860) 992-5874.