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    Ricardo silva Ricardo silva Document Transcript

    • ACSA Every Child Counts Symposium Understanding the Art and Science of Mediating Special Education Disputes January 16, 2014 Presented by Ricardo Silva, Esq. and Beth Nishida Limited Liability Partnership 7404 N. Spalding Avenue Fresno, California 93720-3370 Tel 559-431-5600 Fax 559-261-9366 2701 Old Eureka Way, Suite 2F, Redding, California 96001 Tel 530-243-8150 Fax 530-243-1745 4 Lower Ragsdale Drive, Suite 200 Monterey, California 93940-5758 Tel 831-646-1501 Fax 831-646-1801 140 2nd Street, Suite 250, Petaluma, California 94952 Tel 707-762-1005 Fax 707-762-1091 515 South Figueroa Street, Suite 750 Los Angeles, California 90071 Tel 213-929-1066 Fax 213-929-1077 2001 North Main Street, Suite 650 Walnut Creek, California 94596 Tel 925-953-1620 Fax 925-953-1625 One Capitol Mall, Suite 640 Sacramento, California 95814 Tel 916-329-7433 Fax 916-329-9050 9444 Waples Street, Suite 285, San Diego, California 92121 Tel 858-909-9002 Fax 858-909-9022
    • Understanding the Art and Science of Mediating Special Education Disputes ACSA Conference ~ Monterey California Presented by: Ricardo Silva, Esq. and Beth Nishida January 16, 2014 Mediating Special Education Disputes Beth Nishida Special Education Director Hacienda La Puente Unified School District Ricardo Silva Partner Lozano Smith San Diego Office 2 Overview • IDEA and Resolution • Defensibility • FAPE (overview) • Relationships • Settlement 3 1
    • IDEA and Resolution “Parents and Schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways.” 20 U.S.C. § 1400(c)(8) 4 IDEA and Resolution 2004 Amendments Added • Early Resolution – Requires Parent Participation “Congress has repeatedly amended the Act in order to reduce its administrative and litigation costs.” Schaffer v. Weast, 546 U.S. 49, 57(2005). 5 Number of Filings Fiscal Year 2012-2013 • Student • District • Total 2,727 467 3,194 6 2
    • Outcomes – First Quarter Total Cases Filed 911 Reasons for Closure • Decisions Issued • Settled at Resolution Session • Settled at Mediation • Settled Outside Mediation or Resolution Session • Withdrawn 19 20 360 303 110 7 Prevailing Party Status – First Quarter • Student Prevailed: 5 • District Prevailed: 7 • Split: 7 8 FAPE and Defensibility • FAPE should lead to a defensible program • FAPE is always the GOAL! 9 3
    • Reasons for settlement: • Not Defensible • Witnesses • Costs • Heat 10 Reasons for settlement: • • • • • • Finality Certainty Minimize risk Reduce fees Avoid hearing Strategy 11 Reasons for settlement: • Defensible program • Witnesses • Costs • Heat 12 4
    • Taking stock of your case What do you look for? • Defensible • Staff – How will the staff handle a due process hearing? – Will they make good witnesses? – Are they all appropriately qualified or credentialed? 13 When in Due Process When you are in a due process hearing, how do you use the process to your advantage ? 14 The Process • Early Resolution Session • Mediation (OAH) • Private Mediation • Hearing 15 5
    • Strategies for Negotiating Special Education Disputes • Prepare, prepare, prepare • Cooperation: once in negotiations, the goal is jointproblem solving • Identify barriers to cooperation *Adapted from Getting Past No, by William Ury 16 Strategies for Negotiating Special Education Disputes • Identify Barriers – Reactions – Emotions – Positions – Dissatisfaction – Perception of Power *Adapted from Getting Past No, by William Ury 17 Strategies for Negotiating Special Education Disputes • Breakthrough barriers – Mile-high view – Step to their side – Reframe – Build a golden bridge – User power to educate *Adapted from Getting Past No, by William Ury 18 6
    • Personal Relationships • Parents want to feel that someone is listening to them • Probability that they will give you an opportunity to resolve dispute before filing for due process, rather than being blind-sided 19 Relationship Builders • Listen • Don’t react • Don’t judge • Partner • Problem Solve 20 Relationship Wreckers • Failing to Listen • Reacting • Judgmental • Predetermine or dictate outcome 21 7
    • ADR and Relationships • Relationships are critical • Should be built before a dispute • Also during the ADR process 22 Important distinction FAPE vs. Settlement offer: At an IEP team meeting you DO NOT compromise your FAPE offer! 23 Settlement, What is the benefit of your bargain? • What do you get in exchange; are you buying peace? • Don’t let it be stay-put: Ensure that services have an end-date and identify the replacement services 24 8
    • Settlement is an opportunity • Opportunity for data collection • The data collected during the settlement period may support your argument why it is not FAPE 25 Understanding the Settlement Agreement • Implement: Make sure staff understand the relevant portions of a settlement agreement • Inform: Make sure staff understand what you are trying to accomplish with the settlement 26 Final Thoughts for Today Ensure IEP offers FAPE • Relationships are important • Understand the process • Understand the opportunity 27 9
    • Please Note: THE LEGAL STUFF These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented, please contact clientservices@lozanosmith.com or call (559) 431-5600. 28 • All rights reserved. No portion of this work may be copied, or sold or used for any commercial advantage or private gain, nor any derivative work prepared there from, without the express prior written permission of Lozano Smith through its Managing Partner. The Managing Partner of Lozano Smith hereby grants permission to any client of Lozano Smith to whom Lozano Smith provides a copy to use such copy intact and solely for the internal purposes of such client. • © 2013 Lozano Smith 29 10