The IDEA and the Use of Mediation and Collaborative Dispute Resolution in Due Process Disputes

Katherine McMurtrey

Special education disputes are an emotional, sometimes combative process that often leaves the student dealing with the consequences. Under the Individuals with Disabilities Education Act (IDEA), parents have the right to make use of mediation for resolving disputes regarding their special needs student’s education. Alternative dispute resolution has been widely utilized and is viewed as a positive alternative to due process hearings. In some states, attorneys are not permitted to attend these mediation sessions for fear that they would create an adversarial environment.

This Comment discusses the future of alternative dispute resolution in special education conflicts by first examining a brief history of the IDEA and the areas it covers. Due process complaints under the IDEA and mediation as a solution to due process complaints will then be addressed. Then, it will focus on mediation and its impact on parents and schools, particularly the advantages and disadvantages of mediation, and the presence of attorneys in mediation. Finally, it will look towards collaborative law, when two attorneys and their clients collaborate to reach an agreement, and the future of collaborative dispute resolution in the special education field. This Comment will show that mediation has a better chance of succeeding when attorneys represent both parties. Furthermore, collaborative dispute resolution may be an ideal solution that reaps the benefits of alternative dispute resolution while avoiding the drawbacks of traditional mediation in special education disputes.

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