February 2004

The Brain Injury Association of Arkansas’

A new concept for Arkansas, the project’s primary objective is to benefit the child through improved dialogue between parents and school officials.

The story is as old as the Individuals with Disabilities Education Act (IDEA), the federal law which governs the education of children with disabilities. Parents are convinced that school officials out-and-out ignore what they deem to be in the best interest of their child. School officials see parents as meddlers who blithely ignore cost constraints and practical considerations while making unreasonable demands during the Individual Education Program (IEP) process.

All too often the tale ends in court, the result of a due process hearing or compliant investigation.

To those not directly involved in the dispute, the facts of the case often lie somewhere in the middle. Or, in the words of a Clint Eastwood character, "what we have here is a failure to communicate."

It is this "failure to communicate" that frequently hardens opposing positions to the degree that a due process hearing or compliant investigation is inevitable. "Unfortunately, going to court is a costly, time-consuming process that designates one side a winner and the other a loser. It's certainly not conducive to better communication or future cooperation between the two parties." Nancy Mathews of the Arkansas Special Education Mediation Project says.

One of several projects in the University of Arkansas at Little Rock (UALR) Bowen School of Law Clinical Programs, the Arkansas Special Education Mediation Project is a new "dispute resolution" mechanism designed to "negotiate" the issues affecting the education of a child with a disability. Although funded by a grant from the Arkansas Department of Education's Special Education Unit, the project "in no way advocates for the Department or the school system," Mathews emphasizes, adding that "all our mediators are independent, neutral and open minded 'third parties' whose only concern is helping the parties find a solution that benefits the child and is acceptable to the parents and school officials."

Mathews says the Special Education Mediation Project should not be confused with the mediation that's available when a dispute goes to a due process hearing or complaint investigation. In those cases the mediator is, in fact, an employee of the Department of Education. "The value of our program is that it offers parents and schools an opportunity to head-off legal wrangling. It is free of charge...to parents and schools/co-ops. It is voluntary and confidential. It provides a platform upon which parties can identify issues, discuss viewpoints, generate options and create a solution that's agreeable to everyone. Most importantly, its primary focus is to find a solution that's in the best interest of the child," she says.

Returning to the "voluntary" aspect of the process, Mathews points out that parents have more control than the schools in that regard. "When the school requests mediation, the procedure cannot move forward without the consent of the parent. On the other hand, when parents request mediation, school officials are highly unlikely to refuse to take part in the process."

Unlike the "winner and loser" stigma attached to court proceedings, Mathews comments, "mediation promotes communication and encourages mutual respect. The end result is usually a more positive long-term working relationship."

The mediator's role in reaching that goal is to act as an open-minded third person who guides a "conversation'' between the participants, she says. "A mediator helps the parties in dispute find their own solution by listening to each party's perspective, helping identify the issues to be mediated, brainstorming solutions and, finally, outlining the areas of agreement."

And, while mediators frequently have a legal background, they are not judges, she continues. "A mediator does not decide how parties in dispute work out their problems. Nor does a mediator provide legal, financial or professional advice."

This doesn't mean the mediation process is without legal ramifications. "When the two sides resolve all or most of the issues, the mediator's job is to help the parties draft and finalize an agreement. That document, when signed by the parent(s) and a representative of the school or school district, becomes a 'legally binding' contract," Mathews states.

Up to that point, the right to a due process hearing or complaint investigation remains in force. However, the filing of a hearing or investigation request effectively ends the Mediation Project's involvement in the dispute, Mathews notes.

Kelly Browe Olson, Assistant Professor and Director of Clinical Programs, heads the program. Professor Olson teaches in the Mediation Clinic, and in the areas of Alternative Dispute Resolution, Children and the Law, and Family Law. Mathews, along with Jack Bell, both UALR Law School Mediator/Instructors, direct the project, and Beverly Wittenberg, Mediation Project Coordinator, organizes the mediations.

For additional information or to request mediation, contact the Arkansas Special Education Mediation Project at the University of Arkansas at Little Rock Bowen School of Law, 1201 McMath Avenue, Little Rock, AR 72202-5142, telephone (50I) 324-9939, FAX (501) 324-9911 or email SpEdMeD8@ualr.edn. Toll free calls can be directed to 1-866-273-3959. Mediation request materials can also be accessed at the following websites: www.arkedu.state.ar.us, www.legalclinic.law, ualr.edu/specialed, and www.ddcouncil.org. 

Mediation is by definition a non-adversarial process. That doesn't mean parents need not be fully prepared. First and foremost, they must understand that an agreed upon resolution, once in writing and signed, is legally binding. With that in mind, it's imperative that prior to mediation parents should:

1. Focus on the child's needs.

2. Outline in writing their viewpoint of the dispute - what's involved, what are the issues with which they disagree?

3. Decide what they want from the other party and what they're willing to offer them. What's the bottomline?

4. Write, in detail, the questions they want asked and answered.

5. List in order of importance the solutions they're willing to offer to settle the dispute.

6. Ask other's (friends, relatives) to play "devil's advocate'' on their position, what they want, the proposed solutions, etc.

7. Define, from their perspective, the values, interests and beliefs connected with the dispute.

8. If it will be difficult to mediate on their own, find an advisor (advocate or consultant) who will represent their interests. They need to be certain this person understands this is a problem-solving process, not an adversarial procedure.

9. Think in terms of short-term and/or long-range solutions. Some issues might be suited for a short-term or "trial" period during which a proposed solution can be tested.

10. Be ready to consider all possible solutions to the problem. Instead of clinging to a preconceived notion that is unacceptable to the other party, it's often advisable to "negotiate" a plan that might work, even if it isn't their first choice.

11. Realize that mediation requires the give-and-take of ideas and offers - that it can be a very creative, spontaneous and stimulating process for the participants.

12. Remember, focus on the child's needs.

"Reprinted from the Winter Edition of DD News with the permission of the Arkansas DD Council."

Help create a program to teach parents how to get services for their child and reduce stress in their own lives.

If you are the parent or legal guardian of a child in grades 1-8 with a brain injury, you can help evaluate a new CD-ROM program that teaches parents to advocate for educational services for their child. You’ll receive $40 for participating in this research study. Your participation will take about 90 minutes. Running the program requires a personal computer with a Windows operating system (not a Macintosh) with sound capability. This program was developed by the Oregon Center for Applied Science, funded by the National Institute of Child & Human Development. Call the TBI Advocacy Project toll-free at 1-866-730-3211.

Little Rock – Diane Gottsponer, 501-202-7047, 2^nd Tuesday at 6:00 pm

Fayetteville – Theresa Driver, 479 571-4455
    Survivors Support Group 3^rd Friday at 2:00 pm
    Caregivers Support Group 1^st Wednesday at 4:00 pm

Russellville & Clarksville – Jim Spragins, 479-890-5751

Mtn Home – Vann Smith, PhD, 870-445-5941, 1^st Saturday

Hot Springs – Bill Hartley, 501-525-8463 or Deborah Cole, 501-922-2929

Bentonville – Rene Boucher - 479-271-7764

Small Places (Recreation & Social Program):

Little Rock – Gary Low, 501-416-4742, 1^st & 3^rd Tuesday, 9:30 am – 2:30 pm

Stroke Support Group:

Little Rock, 1^st Wednesday – Michael Inman, PhD, 501-202-7617

02/16/04

Web Site: www.brainassociation.org
Email: info@brainassociation.org

updated 3/11/04

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