The Individuals with Disabilities Education Act (IDEA): Mediation Provisions

CRS Report for Congress
The Individuals with Disabilities Education Act
(IDEA): Mediation Provisions
Updated September 26, 2006
Nancy Lee Jones
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

The Individuals with Disabilities Education Act (IDEA):
Mediation Provisions
Summary
Mediation is a flexible and informal process in which a third party assists
individuals to resolve a conflict. The mediator is trained to facilitate discussions of
each participant’s issues. The goal is to create an agreement that resolves differences
and enhances the relationship between the disputants. The mediator, unlike a judge,
does not make decisions regarding the outcome of the matter; rather, the participants
make these decisions. The Individuals with Disabilities Education Act, IDEA, 20
U.S.C. §§1400 et seq., requires that mediation is to be voluntary but educational
agencies must ensure that procedures are established and implemented to allow
parties to a dispute to solve their dispute through mediation. The mediation is to be
conducted by a qualified and impartial mediator who is trained in mediation
techniques and the cost is to be borne by the state. The state or local educational
agency may establish procedures to offer to parents and schools who choose not to
use mediation an opportunity to meet with a disinterested party to encourage the use
of mediation. IDEA leaves the decision of whether or not to allow attorneys to
participate in mediation up to the individual states.
This report discusses the statutory and regulatory requirements of IDEA, judicial
decisions, and the concept of mediation as it applies to special education. It will be
updated as developments warrant.

Contents
In troduction ......................................................1
Current Law......................................................2
Statutory and Regulatory Provisions...............................2
Background ..............................................2
Current Statutory Provisions.................................2
Department of Education Final Regulations.....................4
Judicial Decisions Regarding IDEA Mediation.......................6
Use of Mediation in Special Education.................................7
GAO Report..................................................7
Benefits and Disadvantages of Mediation...........................8
Use of Attorneys in IDEA Mediation..............................9

The Individuals with Disabilities Education
Act (IDEA): Mediation Provisions
Introduction
Mediation is a flexible and informal process in which a third party assists
individuals to resolve a conflict. The mediator is trained to facilitate discussions of
each participant’s issues. The goal is to create an agreement that resolves differences
and enhances the relationship between the disputants.¹ The mediator, unlike a judge,
does not make decisions regarding the outcome of the matter; rather, the participants
make these decisions.
The Individuals with Disabilities Education Act, IDEA, 20 U.S.C. §§1400 et
seq., requires that mediation is to be voluntary but educational agencies must ensure
that procedures are established and implemented to allow parties to a dispute to solve²
their dispute through mediation. The mediation is to be conducted by a qualified
and impartial mediator who is trained in mediation techniques and the cost is to be
borne by the state. The state or local educational agency may establish procedures
to offer to parents and schools who choose not to use mediation an opportunity to
meet with a disinterested party to encourage the use of mediation. IDEA leaves the
decision of whether or not to allow attorneys to participate in mediation up to the
individual states. The 2004 amendments, P.L. 108-446, also added a requirement for
a written, legally binding, agreement if resolution is reached during mediation.
This report discusses the statutory and regulatory requirements of IDEA as such
provisions have been amended by the 2004 reauthorization of IDEA and elaborated
on in the final regulations.³ In addition, judicial decisions and the concept of
mediation as it applies to special education will also be analyzed. This report will be
updated as developments warrant.

¹ CADRE, “Considering Special Education Mediation,”
[http://www.directionservi ce .org/ cadre/me dinfo.cfm]
² 20 U.S.C. §1415(e). For information about state mediation programs under IDEA see
[http://www.directionservice.org/cadre/state/] and NASDE, “State Mediation Systems: A
NASDE Report,” (1998), reprinted at [http://www.directionservice.org/cadre/qta-1a.cfm]
³ For a more comprehensive discussion of the changes made by the 2004 reauthorization
see CRS Report RL32716, Individuals with Disabilities Education Act (IDEA): Analysis of
Changes Made by P.L. 108-446, by Richard N. Apling and Nancy Lee Jones. For a
discussion of the final regulations generally see CRS Report RL33649, Individuals with
Disabilities Education Act (IDEA): Final Regulations for P.L. 108-446, by Richard N.
Apling and Nancy Lee Jones.

Current Law
Statutory and Regulatory Provisions
Background. IDEA, which was originally enacted in 1975 as P.L. 94-142,
provides grants to the states for the purpose of providing a free appropriate public
education (FAPE) for all children with disabilities. The statute also contains detailed
due process provisions to ensure the provision of FAPE. P.L. 94-142 responded to
increased awareness of the need to educate children with disabilities and to judicial
decisions requiring that states provide an education for children with disabilities if⁴
they provide an education for children without disabilities.
As originally enacted, IDEA contained no specific provision for mediation but
the Department of Education had noted that states had had success in using mediation
as an intervening step prior to a formal due process hearing. The Department
encouraged the use of mediation and found that the use of discretionary grant funds⁵
for reimbursement of mediation fees was a permissible expenditure.
In 1997, P.L. 105-17 added statutory language on mediation. When this statute
was being considered, Congress indicated its “strong preference that mediation⁶
become the norm for resolving disputes under IDEA.” The Senate and House
reports further stated that “the committee believes that the availability of mediation
will ensure that far fewer conflicts will proceed to the next procedural steps, formal
due process and litigation, outcomes that the committee believes should be avoided⁷
when possible.”
Current Statutory Provisions. The 2004 reauthorization of IDEA kept
much of the previous law regarding mediation but made several changes notably
providing for a legally binding written agreement upon successful resolution of the
mediation. Both the House and Senate reports for P.L. 108-446 found that the
mediation provisions in the 1997 law, P.L. 107-17, had been a success. The House
report noted: “Since 1997, mediation under the Act has resulted in a significant
reduction in litigation and helped in restoring the trust between parents and school⁸
personnel.” Similarly, the Senate report observed: “The committee is encouraged
by the success of mediation occurring throughout the nation in resolving disputes

⁴ PARC v. State of Pennsylvania, 343 F.Supp. 279 (E.D. Pa. 1972); Mills v. Board of
Education of the District of Columbia,348 F.Supp. 866 (D.D.C. 1972). For a more detailed
discussion of these cases and the congressional intent behind the enactment of P.L. 94-142,
see CRS Report 95-669, The Individuals with Disabilities Education Act: Congressional
Intent, by Nancy Lee Jones.
⁵ Department of Education Policy Letter, EHLR 213:245 (March 15, 1989); Department
of Education Policy Letter, 18 IDELR 279 (August 7, 1991).
⁶ S.Rept. 105-17, 105^th Cong., 1^st Sess. 26 (1997); H.Rept. 105-95, 105^th Cong., 1^st Sess. 106
(1997).
⁷ Id. at 26-27; 106.
⁸ H.Rep. No. 108-77, 108^th Cong., 1^st Sess. 113 (2003).

between parties under IDEA....The committee wants to build upon this success by
encouraging parties to consider mediation as an option at earlier stages of
disagreements and disputes.”⁹
Currently, IDEA requires that any state or local educational agency that receives
funds under part B of IDEA must ensure that procedures are established and
implemented to allow parties to disputes involving any matter, including matters
arising prior to the filing of a complaint, to resolve the disputes through a mediation
process.¹⁰ It is left up to the states to determine whether or not to allow attorneys’
fees for a mediation that is conducted prior to the filing of a complaint.¹¹
IDEA also lists requirements for mediation.
^!The procedures shall ensure that the mediation process is voluntary
on the part of the parties,¹² is not used to deny or delay a parent’s
right to a due process hearing or to deny any other right provided for
in part B,¹³ and is conducted by a qualified and impartial mediator
who is trained in effective mediation techniques.¹⁴
^!A local educational agency or a state agency may establish
procedures to offer to parents and schools who choose not to use the
mediation process an opportunity to meet with a disinterested party
to explain the benefits of mediation and encourage its use. The
disinterested party must be under contract with a parent training and
information center or community parent resource center or an
appropriate alternative dispute resolution entity. The meeting is to
be at a time and location convenient to the parents.¹⁵
^!The state is required to maintain a list of individuals who are
qualified mediators and knowledgeable in the laws and regulations
of IDEA.¹⁶
^!The state is to pay for mediation costs, including the costs of
meeting with parents to explain the benefits of mediation.¹⁷

⁹ S.Rept. 108-185, 108^th Cong., 1^st Sess. 36. (2003).
¹⁰ 20 U.S.C. §1415(e)(1).
¹¹ 20 U.S.C. §1415(i)(3)(D)(ii).
¹² Mediation, then, is voluntary for both the educational agency and the parents.
¹³ Part B of IDEA, 20 U.S.C. §§1411-1419, contains the grant provisions and requirements
for the provision of education to school aged children with disabilities.
¹⁴ 20 U.S.C. §1415(e)(2)(A).
¹⁵ 20 U.S.C. §1415(e)(2)(B).
¹⁶ 20 U.S.C. §1415(e)(2)(C).
¹⁷ 20 U.S.C. §1415(e)(2)(D).

^!Each session in the mediation process is to be scheduled in a timely
manner and in a convenient location for the parties to the dispute.¹⁸
^!If the mediation results in a resolution of the complaint, the parties
must execute a legally binding agreement that sets forth such
resolution and states that all the discussions that occurred during the
mediation process shall be confidential and may not be used as
evidence in any subsequent due process hearing or civil proceeding.
The agreement must be signed by both the parent and a
representative of the agency and is enforceable in state or U.S.
district court.¹⁹
^!Discussions that occur during mediation, whether or not they are set
forth in a written agreement, are confidential and may not be used as
evidence in any subsequent due process hearings or civil
proceedi n g.²⁰
The latter two requirements concerning the written agreement and mediation
discussions were added in the conference on H.R. 1350 which became P.L. 108-446.
The conference report observed: “The conferees intend that the parties to the
mediation process may be required to sign a confidentiality pledge prior to the
commencement of such process to ensure that all discussions that occur during the
mediation process remain confidential irrespective of whether the mediation results
in a resolution.”²¹
Department of Education Final Regulations.The U.S. Department of²²
Education (ED) issued proposed regulations for P.L. 108-446 on June 5, 2005, and
issued final regulations on August 14, 2006.²³ Although many of the regulatory
provisions simply track the statutory language, reflect comments in the conference
report,²⁴ or include provisions in prior IDEA regulations, there are places where the
regulations provide more guidance or differ from the prior regulations.
The final regulations eliminate a provision from the proposed regulations
relating to the signing of confidentiality pledges prior to the commencement of
mediation. ED noted that the provision was included in the proposed regulations in
light of the conference report language indicating that Congress intends that parties

¹⁸ 20 U.S.C. §1415(e)(2)(E).
¹⁹ 20 U.S.C. §1415(e)(2)(F).
²⁰ 20 U.S.C. §1415(e)(2)(G).
²¹ H.Conf.108-779, 108^th Cong. 2d Sess. 216 (2004).
²² 70 Federal Register 35782, June 21, 2005.
²³ 71 Federal Register 46540, Aug. 17, 2006. ED is maintaining a website on IDEA which
contains topic briefs on various topics as well as the statute and regulations, at
[http://idea.ed.gov].
²⁴ H.Rept. 779, 108^th Cong., 2^nd Sess. (2004).

may be required to sign a confidentiality pledge.²⁵ Noting that 34 C.F.R.
§300.506(b)(8) “already requires that discussions that occur during the mediation
process be confidential and not be used as evidence in any subsequent due process
or civil proceeding,” ED decided to remove the section on signing confidentiality
pledges. However, ED observed that this removal was “not intended to prevent
States from allowing parties to sign a confidentiality pledge to ensure that discussions
during the mediation process remain confidential, irrespective of whether the
mediation results in a resolution.”²⁶
The previous regulations provided that the states shall maintain a list of
individuals who are qualified mediators and knowledgeable about special education
and that if the mediator is not selected on a rotational basis from the list, both parties
must be involved in selecting the mediator.²⁷ The final regulations keep the listed
requirements but also require that the SEA must select mediators on a random,
rotational or other impartial basis, and delete the language regarding involvement by
the other party.²⁸ ED noted in its discussion of this section that “[t]hese provisions
are sufficient to ensure that the selection of the mediator is not biased, while
providing SEAs additional flexibility in selecting mediators. Selecting mediators on
an impartial basis would include permitting the parties involved in a dispute to agree
on a mediator.”²⁹
The final regulations also eliminated the previous regulatory section which
provided that parents be advised of the availability of mediation whenever a hearing
is initiated.³⁰ ED noted that “§300.507(a)(2) was replaced by §300.506(a), which
incorporates section 615(e)(1) of the Act, and requires mediation to be available to
resolve disputes involving any matter under this part, including matters arising prior
to the filing of a due process complaint. Section 300.506(a), therefore, expands the
availability of mediation beyond that required in current §300.507(a)(2).”³¹ The
previous section was, then, considered superfluous.
The statutory language requires that a mediator be impartial and the Department
of Education’s regulations expand upon this requirement. The regulations, which are
similar to the previous regulatory section, provide that a mediator may not be an
employee of a local or state educational agency that is involved in the education or
care of the child. The mediator must also not have a personal or professional conflict
of interest. In addition, the proposed regulations state that a mediator who otherwise

²⁵ 71 Federal Register 46696 (Aug. 14, 2006), referencing H.Rept.108-779, 108^th Cong. 2d
Sess. 216 (2004).
²⁶ 72 Federal Register 46696, Aug. 14, 2006.
²⁷ 34 C.F.R. §300.506(b)(2) (2004).
²⁸ 34 C.F.R. §300.506(b).
²⁹ 71 Federal Register 46695, Aug. 14, 2006.
³⁰ Proposed 34 C.F.R. §300.507(a)(2) (2004).
³¹ 72 Federal Register 46696, Aug. 14, 2006.

qualifies is not considered to be an employee of a LEA or a state agency solely
because he or she is paid by the agency to serve as a mediator.³²
Judicial Decisions Regarding IDEA Mediation
There have been few cases discussing the use of mediation under IDEA. The
cases that do exist have largely dealt with the issue of whether attorneys’ fees should
be available for work performed during mediation and many of these were decided
prior to the 1997 amendments. However, there have been several recent decisions
which have touched upon other issues.
Generally, the pre-1997 cases regarding attorneys’ fees found that these fees
were allowable.³³ The rationale of these cases, however, was drawn into question
by the Supreme Court’s decision in Buckhannon Board and Care Home v. West
Virginia Department of Human Resources.³⁴ Although this case did not involve
IDEA, it rejected the catalyst theory (the theory that if the plaintiffs’ actions served
as a catalyst to change the behavior of a defendant, attorneys’ fees may be awarded)
as a basis for the award of attorneys’ fees pursuant to a statutory provision. The cases
since Buckhannon have largely turned on whether there was judicial involvement.
In Jose Luis R. v. Joliet Township High School District 204³⁵ the court found that the
plaintiffs failed to offer any evidence that the hearing officer approved or sanctioned
the parties’ mediation agreement and that without court approval or sanction the
agreement was simply a private settlement and therefore attorneys’ fees could not be
awarded. Similarly, in Sanford v. Sylvania City School Board of Education³⁶ the
court found that a settlement agreement was not sufficient to grant prevailing party
status and thus attorneys’ fees if the agreement was not judicially sanctioned.
However, in Ostby v. Oxnard Union High,³⁷ the court found that the plaintiffs were
the prevailing party since after mediation they had obtained a private settlement

³² 34 C.F.R. §300.506(c).
³³ See e.g., Masotti and Masotti v. Tuskin Unified School District. 806 F.Supp. 221 (C.D.
Calif. 1992), where the court framed the issue as the novel one of “whether fees are
recoverable after a mediated dispute resolution of a child’s individualized education
program, without the need of a requested administrative hearing.” In finding that such fees
were allowable, the court noted that congressional intent was to provide the parents of
children with disabilities a substantive right that could be enforced, including a right to
attorneys’ fees if the parents were the prevailing party. This intent was seen as broad
enough to permit the award of fees for services relating to a settlement or mediation.
³⁴ 532 U.S. 598 (2001). For a discussion of the application of Buckhannon to IDEA see
Stefan R. Hanson, “Buckhannon, Special Education Disputes, and Attorneys’ Fees: Time
for a Congressional Response Again,” 2003 BYU Educ. & Law J. 519 (2003), which argues
that “after Buckhannon, plaintiffs must either make the matter of attorneys’ fees a
negotiating issue in the settlement discussions or choose to appear pro se at the mediation
where the school district may be represented by an attorney.” At 544.
³⁵ 2002 U.S. Dist LEXIS 20916 (N.D. Ill. January 14, 2002).
³⁶ 380 F.Supp.2d 903 (N.D. Ohio 2005).
³⁷ 209 F.Supp.2d 1035 (C.D.Calif. 2002).

against the district that was legally enforceable in court and were not mere catalysts
of voluntary change.
Other issues regarding mediation have also been raised. In Pitchford v. Salem-
Keizer School District³⁸ an action was brought by parents of an autistic child against
the school district for failure to provide their child with a free appropriate public
education. The district court found that the IEP (individualized education program)
for one of the school years at issue was sufficiently flawed to deprive the child of a
free appropriate public education for that year. Rather than issue a order on the
merits, the court ordered the parties to mediation to attempt to reach an agreement
to avoid further litigation.
In Amy S. v. Danbury Local School District,³⁹ the parents of a child with
Asperger’s Syndrome requested extended school year services for the child, were
denied, and filed a request for a due process hearing. The parents agreed to mediate
with the school, and they signed a written settlement agreement providing in part for
tutoring, and stating that all issues relating to the child’s education were resolved up
to the date of the agreement. The parents alleged other violations of IDEA and
signed another mediation agreement. Afterwards, the parents filed a complaint in
district court alleging violations prior to the dates of the signed mediation
agreements. The district court concluded that the mediation agreements precluded
a review of the parents’ claims and the court of appeals agreed, emphasizing that the
parents had been represented by counsel when they signed the agreements and the
parents did not claim that they entered into the agreements against their will or
without knowledge of the issues.
Use of Mediation in Special Education
GAO Report
In September 2003, GAO issued a report on disputes in special education which
reviewed national data and obtained site data from visits to four states — California,
Massachusetts, Ohio and Texas.⁴⁰ One national study examined found that the
median number of mediations for states was four for every 10,000 students with
disabilities in the school year 1999-2000.⁴¹ Officials from the four states visited by
GAO reported that they were emphasizing the use of mediation and had found
mediation to be successful in “resolving disputes, strengthening relationships
between families and educators, saving financial resources, and reaching resolution

³⁸ 155 F.Supp. 1213 (D.Oregon 2001).
³⁹ 174 Fed. Appx. 896 (6^th Cir. 2006).
⁴⁰ “Special Education: Numbers of Formal Disputes are Generally Low and States are
Using Mediation and Other Strategies to Resolve Conflicts,” GA0-03-897 (September

2003).

⁴¹ Id. at 3.

more quickly.”⁴² Three of the four states reported that a high percentage of
mediations resulted in agreements and that mediations were less costly than due
process hearings.⁴³
Benefits and Disadvantages of Mediation
Mediation for disputes arising under IDEA has been touted as an alternative to
the often costly, and time consuming due process procedures.⁴⁴ However,
commentators have seen both benefits and disadvantages to its use. CADRE, the
Consortium for Appropriate Dispute Resolution in Special Education,⁴⁵ describes the
benefits of mediation in special education as including:
^!Families can maintain an ongoing and positive relationship with the
school or and benefit from partnering with educators or service
providers in developing their child’s program.
^!Conflicts that arise out of misunderstandings or lack of shared
information can be resolved through mediators helping parents,
educators and service providers to communicate directly with one
another. Special education and early intervention issues are complex
and can best be solved by working together.
^!Mediation tends to be faster and less costly than adversarial
approaches such as due process hearings and court proceedings.
^!Mediation can result in agreements that participants find satisfactory
and research shows that people tend to follow the terms of their
mediated agreements.⁴⁶
Several commentators have observed that mediation has disadvantages. Some
of these are described as follows.

⁴² Id.
⁴³ Id. at 18.
⁴⁴ For a detailed examination of how “real disputants” perceive special education mediation
see Nancy A. Welsh, “Stepping Back Through the Looking Glass: Real Conversations with
Real Disputants About Institutionalized Mediation and Its Value,” 38 Ohio St. J. On Dispute
Resolution 573 (2004).
⁴⁵ CADRE, a private organization, is funded by the Department of Education, Office of
Special Education Programs. [http://www.directionservice.org/cadre/about.cfm]
⁴⁶ CADRE, “Considering Special Education Mediation,”
[http://www.directionservice.org/cadre/medinfo.cfm] See also Office of Special Education
Programs, U.S. Department of Education, “Questions and Answers on Mediation” (Nov. 30,
2000), reprinted at [http://www.directionservice.org/cadre/vet_QAonmediation.cfm] For
a discussion of the benefits of mediation generally see [http://www.directionservice
.org/cadre/med_benefits.cfm]. See also, Damon Huss, “Balancing Acts: Dispute Resolution
in U.S. and English Special Education Law,” 25 Loy. L.A. Int’l & Comp. L. Rev. 347
(2003).

^!Mediation’s goal is to reach agreement between the parties; not
necessarily to guarantee the provision of a free appropriate public
education (FAPE). This use of mediation, therefore, might not
support the provision of FAPE.⁴⁷
^!There is often a significant disparity in power and access to
information between parents and school systems and this can lead to
the weaker party, often the low income or less educated party,
accepting less than they might be entitled to.⁴⁸
^!Courts may not examine the merits of a settlement agreement.⁴⁹
^!There is a lack of national standards for training and vagueness in
state-specific standards of certification.⁵⁰
Use of Attorneys in IDEA Mediation
Another issue regarding IDEA mediation is whether attorneys should be
permitted to participate in mediation. IDEA does not address the issue except by
allowing states to determine whether attorneys’ fees may be awarded for
mediations.⁵¹ It should be emphasized that issues relating to the use of attorneys
apply both to parents seeking legal representation and to school districts seeking
counsel from their attorneys. The states vary in their approaches with one study
indicating that at least eight states formally exclude or discourage attorneys from

⁴⁷ Steven Marchese, “Putting Square Pegs into Round Holes: Mediation and the Rights of
Children with Disabilities Under the IDEA,” 53 Rutgers L. Rev. 333, 336, 344 (2001).
Another commentator noted a related concern as the fear that mediation may be employed
when issues of law need to be decided. Edward Feinberg and Jonathan Beyer, “The Role
of Attorneys in Special Education Mediation,” [http://www.directionservice.org
/cadre/roase.cfm]
⁴⁸ Steven Marchese, “Putting Square Pegs into Round Holes: Mediation and the Rights
of Children with Disabilities Under the IDEA,” 53 Rutgers L. Rev. 333, 352-356 (2001);
Andrea Shemberg, “Mediation as an Alternative Method of Dispute Resolution for the
Individuals with Disabilities Education Act: A Just Proposal?” 12 Ohio St. J. on Dispute
Resolution 739, 748-751 (1997); Jonathan A. Beyer, “A Modest Proposal: Mediating IDEA
Disputes Without Splitting the Baby,” 28 J. Law & Education 37, 50-52 (1999).
⁴⁹ Steven Marchese, “Putting Square Pegs into Round Holes: Mediation and the Rights of
Children with Disabilities Under the IDEA,” 53 Rutgers L. Rev. 333, 358-360 (2001).
⁵⁰ Edward Feinberg and Jonathan Beyer, “The Role of Attorneys in Special Education
Mediation,” [http://www.directionservice.org/cadre/roase.cfm]; Jonathan A. Beyer, “A
Modest Proposal: Mediating IDEA Disputes Without Splitting the Baby,” 28 J. Law &
Education 37 (1999).
⁵¹ 20 U.S.C. §1415(i)(3)(D)(ii).

participating in mediation.⁵² Various benefits and disadvantages have been seen
concerning the use of attorneys.⁵³

⁵² Edward Feinberg and Jonathan Beyer, “The Role of Attorneys in Special Education
Mediation,” [http://www.directionservice.org/cadre/roase.cfm] The states listed in this
category were Alaska, Arkansas, Delaware, Idaho, Maine, New Hampshire, Pennsylvania,
and Washington.
⁵³ For a detailed discussion of the benefits and disadvantages of using attorneys in
mediation see Edward Feinberg and Jonathan Beyer, “The Role of Attorneys in Special
Education Mediation,” [http://www.directionservice.org/cadre/roase.cfm]