~ Creating Agreement ~

1. ~ Creating Agreement ~ Collaborative Problem Solving in Special Education and Early Intervention

2. The Consortium For Appropriate Dispute Resolution In Special Education (CADRE) The IDEA Partnership Project (at NASDSE) This Slide Presentation was Jointly Developed By: With funding from the US Department of Education, Office of Special Education Programs (OSEP)

3. Development TeamThe following individuals & organizations participated in the development of this presentation • American Occupational TherapyAssociation (AOTA) • Carol Gryde • Consortium for Appropriate Dispute Resolution in Education (CADRE) • Loni Elliott • Philip Moses • Marshall Peter • John Reiman • Richard Zeller • IDEA Partnership • Joanne Cashman • Terry Jackson • Fiesta Educativa • Lorena Morales

4. Development Team (cont.)The following individuals & organizations participated in the development of this presentation • National Education Association (NEA) • Judy Richards • New York Long Island Families Together (LIFT) • Helene Fallon • School Social Work Association of America (SSWAA) • Steve Button • Wisconsin Family Assistance Center for Education, Training & Supports (FACETS) • Nelsinia Ramos • Wisconsin Special Education Mediation System • Nissan Bar-Lev • Jan Serak

5. “Seek first to understand, then to be understood.” Stephen Covey, “Habit 5” Seven Habits of Highly Effective People

6. CADRE/IDEA Partnerships Dispute Resolution Workgroup Vision • Educational outcomes will be improved when families, schools and service providers are working together effectively. • Provision of training and educational opportunities to a diverse group of stakeholders enhances the capacity to engage in collaborative problem solving that is responsive to individual students’ needs.

7. Workshop Outcomes Participants will acquire an increased awareness of the breadth of issues and strategies associated with Special Education Dispute Prevention/ Resolution including: • Gaining a better understanding of conflict and the ways that people respond • Gaining familiarity with the Procedural Safeguards requirements in IDEA ’04 • Learning about practices and strategies that comprise the “Continuum” • Understanding the power of listening in resolving conflicts • Gaining an awareness of interest based problem solving strategies • Understanding the important role of cultural issues in relation to resolving disputes • Becoming aware of useful resources for additional information

8. Our Assumptions… • Different cultures may have differing perspectives on conflict and how it’s most appropriately approached • Conflict is a healthy reflection of a diverse and competitive society • Most parent/school relationships are positive and mutually respectful • Skills can be acquired that help facilitate productive relationships

9. Our Assumptions… • Early opportunities exist to collaboratively address differing viewpoints on how to best serve the child • Adversarial processes should be reserved for situations where other options have been exhausted • The cost of adversarial processes is high in personal, relationship and financial costs

10. Conflict

11. Conflict What does the word “conflict” bring to mind?

12. Conflict • Expressed struggle • Two or more people • Interdependent • Strong emotion • Perceived blockage Needs Values

13. Personal Goals Relationship Goals The Five Conflict Handling Modes Controlling Collaborating Compromising Avoiding Accommodating Source: Thomas Killmann

14. Personal Goals Relationship Goals Avoiding • Unassertive and uncooperative • Do not pursue your own concerns or those of other(s) • Don’t address the conflict • Sidestep, postpone, or withdraw from the issue for the present time

15. Personal Goals Relationship Goals Avoiding – When to Use • When the potential danger or damage outweighs the benefits of resolution • When more time is needed to collect information • When emotions need to cool down

16. Personal Goals Relationship Goals Accommodating • Focuses on relationship needs • Sacrifice your own personal goals to satisfy the concerns of the other(s) • Yield to another point of view

17. Personal Goals Relationship Goals Accommodating – When to Use • To preserve harmony and avoid disruption • To achieve temporary settlement • To arrive at quick solutions under pressure • When the relationship is the most important goal

18. Personal Goals Relationship Goals Controlling • Power oriented • Pursue own ends without agreement of others • Achieving one’s personal goals paramount • Results in win-lose or lose-win

19. Personal Goals Relationship Goals Controlling – When to Use • In emergencies • When unpopular actions must be implemented • When your family or organization’s welfare is at stake • When your authority and responsibility are unquestionable

20. Personal Goals Relationship Goals Compromising • Objective to find expedient, mutually acceptable alternative • Both parties give up something • Exchanging concessions – splitting the difference • Quick middle position

21. Personal Goals Relationship Goals Compromising – When to Use • When two parties of equal power are strongly committed to mutually exclusive goals • To achieve temporary settlements to complex issues • To arrive at quick solutions under pressure • When the goals of each party are of moderate importance and collaboration isn’t worth the time required

22. Personal Goals Relationship Goals Collaborating • Personal goals and relationship goals are of equal importance/value • Seeks win-win outcomes using advanced skills and strategies • Want to find a solution that fully satisfies needs and concerns of both people • Involves time commitment in identifying concerns of each person and finding alternatives that meet both sets of needs

23. Personal Goals Relationship Goals Collaborating – When to Use • When both the issues at hand and the relationship are important • When the parties are relatively equal in status and power – or the more equal or powerful party supports a win-win collaborative solution • When the parties are inter-dependent upon one another to implement the solution • When both sets of goals are too important to compromise • You have enough time and are willing to take the time necessary • When the quality of the decision is critical • To gain commitment and acceptance through consensus

24. Personal Goals Relationship Goals The Five Conflict Handling Modes Controlling Collaborating Compromising Avoiding Accommodating Source: Thomas Killmann

25. Costs of Conflict • Financial costs • Educational costs: bleeds energy away from instruction, can interfere with needed consistency • Human costs: stress, burnout, marital discord • Relationships: hurts relationships among people who have to work together • Societal costs: parents, families, schools divided; bad press for special education; missed opportunities

26. “Cost and Benefit” Comparison of Dispute Resolution Approaches Source: Wisconsin Special Education Mediation System • How much do you think each of these processes costs? • What do you include when you think about process costs?

27. IDEA ‘04

28. Required Processes Under IDEA ‘04 • Written State Complaint (assumed to be in regulations) • Mediation • Resolution Sessions • Due Process Hearings

29. Resolution Sessions615(f)(1)(B) • Within 15 days of DPHR notice, LEA must convene a meeting with: • Parents; • Relevant IEP team members; and • An agency representative with decision-making authority. • May not include an LEA attorney unless parent’s attorney is present. • Meeting is for discussing the facts and resolution of DPHR issues. • Parties may agree, in writing, to waive such meeting or to use mediation in lieu of the resolution session.

30. Written Settlement Agreement615(f)(1)(B)(iii-iv) • If resolution is reached to resolve the DPHR at a resolution session, the parties execute a legally binding agreement (written settlement agreement) that is: • Signed by both the parents and a representative of the agency; and • Enforceable in any state court of competent jurisdiction. • If parties execute a written settlement agreement, a party may void the agreement within three business days of the agreement’s execution.

31. Mediation Under IDEA ‘04 Conducted by a mediator who is: • Qualified • Trained in effective mediation techniques • Knowledgeable in laws and regulations • Impartial • Not employee of LEA, SEA or state agency that is providing direct service to the child • No personal or professional conflict of interest • Random selection or both parties agree

32. Mediation Agreement615(e)(1), (2)(F) • Mediation is available to resolve any matter, even before requesting a due process hearing (DPH). • Mediation agreement must be in writing and signed by the parent and agency representative. • Agreement is legally binding and enforceable by any state court. • Mediation process is confidential and may NOT be used as evidence in subsequent legal action.

33. State System Design & Performance

34. No Neutral With a Neutral Informal/ formal Negotiation C O N F L I C T © WSEMS 2005 Facilitation Mediation Arbitration Litigation Extreme Telephone Call Slander IDEA Complaint IEP Meeting Law Suit Mediation Session Hate Mail Scheduled Meeting Resolution Session Resolution Session Due Process Violence Least coercive Most self-determination Most coercive Least self-determination Dispute Resolution Options

35. CADRE Continuum ofConflict Resolution Options

36. Use of Procedural Safeguards 2002-2003 – 50 States • Due Process Hearings • 12,889 requests • 2,184 hearings held (17%) • Complaints Filed • 5,715 filed • 2,992 with findings (52%) • Mediations Held • 6,790 held • 4,722 with agreements (70%)

39. Mediation

40. The Mediation Process • Setting the Stage • Prepare environment • Explain expectations & process • Uninterrupted Time • Invite each person to talk without interruptions • Participants describe problem and their perception of the issues (initial expression and release of emotions around situation)

41. The Mediation Process • Identifying the Issues • Identify, clarify, summarize main issues • Get agreement on issues • Discussing the Issues • Listen for common ground, mediatable issues, points of disagreement • Encourage participants to talk to each other (??)

42. The Mediation Process • Generation of Potential Solutions • Assist the brainstorming possible options for each discreet issue • Evaluate potential solutions • Agreement Building • Narrow list of viable options • “Reality Check” • Assist in negotiation process • Record agreement is appropriate

43. Mediation ProcessCaucus (Separate Meeting) • Purposeful, Confidential, Balanced • Advantages • Exploring positions, interests and needs • Save face • Manage emotions • Test solutions • Limitations • Confidentiality issues • Breaking direct communication • Mediator becomes more the focal point

44. Role of the Mediator • Establishes rapport and trust • Facilitates communication • Elicits underlying interests • Recognizes and shifts problematic communication patterns • Encourages brainstorming • Supports the process of analyzing options • Assists in agreement writing • Provides content expertise (??)

45. Power Imbalances Inherent in Conflict • DR Processes can “level the playing field” • Actual and Perceived Power may differ • For Parents, On the face: less power/status and that steps must be taken to make sure that doesn’t distort the processes (#s matter) • Cultural issues may exacerbate this – intimidation may be present whether intended or not • Perception: Many of the formal mechanisms are ways to “get the parent to go along” • Fair systems require well-facilitated processes and trained interveners (mediators, hearing officers, facilitators, etc.) who are able to control the power balance issues • Relationships well-built help overcome imbalance

46. Protocol: Removing Power Imbalances • When third party-neutral is present • When a third party-neutral is not present – NB/WISC has a document/ process guide • Pre-, During and Post-IEP processes/ conditions that can help reduced perceived power imbalances • Emphasis on the technical processes in service to the human aspects – subtle impact of dress… • Risk of “Pre-IEP” actions: parents may not be equipped/ supported to participate effectively • Should the IEP itself be included in the Continuum? Cartoon book on IEPs. • Time and IEP – ironic power play by trying to control…

47. Mediation Models • Single Mediator • Easier to Manage Logistically • Mediator Expertise • Mediator Control • Panel Mediation • Reflects Community • Strengthens Community

48. Mediation Models • Co-Mediation • Reflect Participants Involved • Family/School • Gender • Age • Ethnicity/Race • Training/Mentoring Model • Two-is-better-than-one • Modeling Cooperative Behavior • Balancing Different Mediator Orientations, Strategies, & Techniques

49. Advantages of Mediation • Privacy/Confidentiality • Flexible, informal • Addresses underlying issues, concerns & priorities of participants • Capacity for creative resolutions • Future focused • Relatively time efficient

50. Advantages of Mediation • Allows direct communication • Process educates participants • Win/win outcomes • Potential to build, maintain & enhance relationships • A place for an apology • More comprehensive • Accessible to wide range of participants • Higher satisfaction