Legal Rights of Children with Epilepsy in School & Child Care

Dispute Resolution and Legal Remedies
written up and each party will get a copy. If there is no agreement, the parties
will leave and, if a due process hearing is pending, the parties will then move
forward with the hearing.
8.12Q: What are the benefits and drawbacks of mediation?
A: If mediation has been requested at the same time as a due process hearing, the
mediation session is held while the hearing timeline is pending, so mediation
does not cause any delays. If mediation is scheduled outside of the hearing
timeline, it will take longer to get to a due process hearing if that is the ultimate
dispute resolution action needed. Mediation can be a quicker and easier way of
resolving a dispute than a due process hearing and, because mediation
agreements are enforceable in court, mediation may well be worth a try,
especially if the family lives in a state in which families lose due process
hearings at a high rate. Even if the issue does not seem to lend itself to
compromise, mediation may be worth trying, since different school system
personnel may attend mediation than have been present at IEP meetings, and the
change in people—along with the presence of the mediator—may change the
dynamics enough to allow the issue to be resolved. However, because mediation
is voluntary, it is possible that parents might wish to engage in mediation but the
school system does not; in that instance, mediation will not be possible. It is also
possible that despite the IDEA’s requirement that the mediator be qualified and
trained, he or she will not be skilled at working with the parties, and that the
opportunity to negotiate a resolution will be lost.
8.13Q: What is a due process hearing?
A: A due process hearing is an administrative remedy under the IDEA. During a
due process hearing, the parents and the school district each present evidence to
an impartial hearing officer or administrative law judge, who then issues a
written decision with findings of fact and conclusions of law. A due process
hearing is like a trial, with each party presenting direct evidence and having an
opportunity to cross-examine the witnesses of the other party. The hearing
officer, who is in the role of the judge, must have knowledge of—and the ability
to understand—the provisions of the IDEA, federal and state regulations that
implement the IDEA, and federal and state court decisions that interpret the
IDEA. Additionally, the hearing officer must know how and be able to conduct
hearings and render and write decisions in accordance with appropriate and
standard legal practice. 34 C.F.R. 300.511.
A party can only raise issues at the hearing that were raised in the hearing
request unless the other party agrees otherwise. 34 C.F.R. 300.511. If a hearing
officer addresses the issue of whether a student received a free appropriate
public education, the decision must be based on substantive, rather than
procedural, grounds. However, procedural violations could result in a
substantive denial of a free appropriate public education if the procedural
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