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Due Process Hearings: What Process is Due? Part III

Posted Jan 11 2009 3:00pm
In previous posts in this series, I have discussed some of the dissatisfaction with the due process hearing system as the main way of resolving special education disputes. The major complaints involve the adversary nature of the system and the expenses it causes the parties to outlay. I examined the constitutional due process requirements and wondered whether a more relaxed and less adversary dispute resolution mechanism with fewer evidentiary rules and less legalese might be better. I discussed as one alternative the "Inquisitorial" method. You can view the previous posts here:
Part IandPart II

As you know from my last post, this is an area where I intend to encourage the Congress to make some changes. I'm still working out the kinks and the details of my proposed changes, and continue to welcome your input regarding potential changes to the special ed law. Before I get to fleshing out my proposals, however, I wanted to discuss some of the other proposals that are out there. Two of my esteemed colleagues have proposed forms of binding arbitration as the answer. In this post and the next in this series, I'll be discussing these ideas. As always, I'd like to hear what you think.

The first model involves submitting the dispute to an arbitrator selected by the parties and an agreement to be bound by the arbitrator's decision (usually called an award.) One of the keys is the arbitrator who is selected. The parties would have to research the neutral and perhaps talk to references before agreeing to the arbitrator.

Under this model, the parties could choose to have the arbitrator resolve future as well as current disputes between the parties. The arbitrator would have a significant level of power, and the information gathering process would be left to the discretion of the arbitrator. The arbitrator could simply talk with the student, parents and district employees, or observe the student at school or receive exhibits. The process would be flexible enough for the arbitrator to utilize mediation techniques at any time he felt appropriate. If a violation is found, a written decision with appropriate relief would be issued. The process would prohibit participation by lawyers at the dispute resolution sessions although the parties could consult by telephone with legal counsel. The parties would have to certify that they have consulted with a lawyer prior to entering into the agreement to arbitrate. Lay advocates would generally be permitted.

So what do you think of arbitration so far? Congress has considered this change although why they did not include it is a bit unclear. The House of Representatives version of IDEA'04 included a specific provision permitting binding arbitration as one method of dispute resolution. The Senate version did not. The Senate apparently prevailed as to this point in the conference committee because the final version of IDEA'04 removed the arbitration provision. So the current law does not even mention arbitration.

In the next installment in this series, we'll have more on the other arbitration proposal.

------- Thanks for subscribing! Jim Gerl
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