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Due Process Hearings: What Process is Due? Part IV

Posted Jan 15 2009 4:58pm

In the first three parts of this series, I discussed the dissatisfaction with the due process hearing system as the primary vehicle for resolving special education disputes, especially the adversary nature of the system and the expenses it causes the parties to incur. I looked at 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. Then we discussed the concept of arbitration that was endorsed by the House and not the Senate in IDEA'04, and we examined one of the proposed arbitration systems. You can view the previous posts here:
Part I, Part II and Part III

As I have mentioned here, 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. As always, I'd like to hear what you think.

Today I'm going to discuss a second arbitration model suggested by a colleague.Please note that I am sharing these models for informational purposes and to get the reactions of the readers of this blog. This second arbitration model has its roots in the European tribunal model. The tribunal, rather than the parties or the lawyers, is responsible for developing the record. Thus, the arbitrator would be the primary questioner of witnesses and would select documents for review. The arbitrator would exercise the inquisitorial function. Again the quality of the arbitrator must be uniformly high for the system to work. The arbitration process would be completely voluntary. The decision of the arbitrator would be final and not subject to further judicial or other review.

Under this arbitration model, lawyers would be banned unless both sides were represented. Lay advocates would be permitted for parents. The process would be informal and no permanent record of proceedings would be kept. The decision would state only the result and the relief required if any.

In the next installment in this series, we'll have some of my thoughts on how we might reduce the adversariness and expense of the due process hearing system.In the meantime, please let me know how you feel about these two arbitration model as well as the current due process system.

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