Mediation at the BSEA

The Bureau of Special Education Appeals, or the BSEA, is part of the Division of Administrative Law Appeals and has original jurisdiction over all disputes regarding special education in Massachusetts (including claims based on Section 504 of the Rehabilitation Act).  The BSEA provides five avenues for dispute resolution in case of a disagreement between a parent and a school district.   

This is the second in a series of five posts that will discuss the dispute resolution options at the BSEA.

You have just rejected your child’s IEP in whole or in part. Now what?

The school district must notify the BSEA within five calendar days that you have rejected your child’s proposed IEP, placement, or finding of ineligibility for special education. Shortly thereafter, you will receive a notice from the BSEA informing you of your options, which include mediation.

Mediation at the BSEA is voluntary, confidential, quick, and free.  Unlike “Settlement Conferences,” which we will discuss in another post, a mediation session can be convened without first having to file a request for hearing at the BSEA.  Although either a parent or a school district may request mediation, a mediation session will be held only if both parties agree to participate.  School districts sometimes say that they will “take the parents to mediation” – it is important to know that you cannot be required to participate in mediation.  There are reasons why you may want to, however.

During mediation, one of seven BSEA mediators facilitates discussion between the parent(s) and the school district and helps to clarify the issues in dispute and the parties’ views on how to address the needs of the student. A mediation session lasts anywhere from several hours to an entire day. Usually, after an initial joint session, parties have the opportunity to “caucus” with the mediator in private, without the other party. Caucuses can be helpful in clarifying the issues and brainstorming potential alternative solutions and also provide parties a chance to share confidential information with the mediator. A successful mediation ends with an agreement, which is usually typed up and signed that same day. The mediation process itself is nonbinding, meaning that the mediator does not render a decision; if the parties reach an agreement as a result of mediation, however, that agreement (once signed) becomes a binding contract.  If the parties do not reach an agreement, the next step is often to seek a due process hearing.

Many families find that mediation is an effective way to solve a disagreement with a school district while maintaining a positive relationship with key individuals in the district such as team leaders, teachers, and service providers. At other times, the situation or relationship between a family and a school district indicates that mediation may not be successful. For example, if parents want their child placed in an out-of-district placement and the team has already rejected this option and proposed an in-district program, mediation is less likely to end with an agreement than it is when other aspects of the child’s program (e.g., amount of reading instruction or speech-language therapy that he or she will receive) are at issue. At other times, there may be such animosity between parents and other team members that the parties will not voluntarily submit to mediation. In such cases, one of the BSEA’s more formal dispute resolution options may be a better way to reach a resolution.

The BSEA maintains a helpful set of Frequently Asked Questions on its website that can help families assess whether mediation is the right dispute resolution option. The website also includes tips on preparation for mediation. Consultation with an advocate or attorney can also be helpful in determining whether mediation would be productive, how the issues can best be presented at mediation, and how to understand legally binding terms that the district may want to include in a mediation agreement.

Melanie R. Jarboe is an associate in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.

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