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Alternative dispute resolution: An effective strategy for reducing special education due process hearings in California

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Alternative dispute resolution: An effective strategy for reducing special education due process hearings in California

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Content ALTERNATIVE DISPUTE RESOLTION: AN EFFECTIVE STRATEGY FOR
REDUCING SPECIAL EDUCATION DUE PROCESS HEARINGS IN
CALIFORNIA
by
Nancy Ann Falsetto
A Dissertation Presented to the
FACULTY OF THE ROSSIER SCHOOL OF EDUCATION
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF EDUCATION
August 2002
Copyright 2002 Nancy Ann Falsetto
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UMI Number: 3094327
Copyright 2002 by
Falsetto, Nancy Ann
All rights reserved.
®
UMI
UMI Microform 3094327
Copyright 2003 by ProQuest Information and Learning Company.
All rights reserved. This microform edition is protected against
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UNIVERSITY OF SOUTHERN CALIFORNIA
School of Education
Los Angeles, California 90089-0031
This dissertation, written by
Nancy Falsetto
under the direction o f h^JLDissertation Committee, and
approved by all members o f the Committee, has been
presented to and accepted by the Faculty of the School
of Education in partialfulfillment of the requirements for
the degree of
D o c to r o f E d u c a tio n
December 18, 2002
ran
Dissertation Committee
'fjlJjAJL
i
Chairperson
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DEDICATION
This dissertation is dedicated to all o f those professionals and parents who
value the importance of working as a team to benefit the child’s education.
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iii
ACKNOWLEDGEMENTS
This dissertation would not have been possible without the tremendous
support, encouragement and guidance o f many individuals. I have a tremendous
amount o f gratitude toward all o f them.
First o f all, I would like to thank my family for their patience and
understanding in this long venture. My two children Kira and Brett sacrificed a lot
for me because they knew that this degree was important to me. Kira, thanks for
believing in me. I will always remember the two of us doing our homework
together in my office at home. Brett, even though you watched me from afar, I
know that you recognized what I was doing was important. Sorry we couldn’t
take all those exotic vacations as in the past.
A very special thanks goes to my mother, Fran, for keeping the household
going while I spent countless hours doing research and writing. Mom, you are
amazing in all that you do for us. I could never have made it without you to
clean, cook, and be my senior citizen gardener.
I would also like to thank my boss and my mentor, Myma Rohr, Assistant
Superintend o f Education Services in the San Jacinto Unified School District. You
supported me endlessly as I completed coursework and worked on my
dissertation.
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iv
My secretary, Lori White, deserves a special thanks for the long hours she
spent typing for me. Lori, you are the best secretary that one could ask for. I
especially like how you do not make fun o f my limited computer skills.
My final thanks are reserved for my dissertation committee. First o f all, I
would like to thank Dr. Stu Gothold, who served on my committee. When I was
without a chair after my coursework, you were very instrumental in assisting me
in obtaining a chair. You have always been encouraging and supportive of my
work. I am very honored to know you and am so grateful that you served on my
committee. Dr. John Nelson, also served as a committee member. It was very
reassuring to know that you have a background in special education. I will
always appreciate your willingness to serve on my committee.
I am the luckiest student on earth to have gotten Dr. Melora Sundt as the
chair of my committee. Melora, you have a special gift of guiding in a positive,
yet realistic manner the course that a student must take to become a doctor. I will
always be grateful for the respect, encouragement, and the support you gave me
during this long process. You were absolutely wonderful.
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V
TABLE OF CONTENTS
Page
DEDICATION...................... II
ACKNOWLEDGEMENTS....................................................................................... iii
LIST OF T A B L E S............... viii
ABSTRACT............................................................................................................. ix
CHAPTER ONE: STATEMENT OF THE PROBLEM
Introduction.......................................................................................................1
Statement of the Problem................................................................................ 8
Purpose o f the Study...................................................................................... 12
The Importance o f the Study........................................ 13
Definition o f Terms..................................................................................... 14
Assumptions..................................................................................... 16
Delimitations................................................................................................ 16
Limitations.................................................................................................... 17
CHAPTER TWO: REVIEW OF THE LITERATURE
Introduction.....................................................................................................18
Techniques...................................................................................................... 19
Mediation Stages............................................................................................ 20
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vi
Role o f the Mediator............................................................................... 21
Mediator T actics....................................................................................... 21
Components............................................................................................. 22
ADR in the Workplace........................................................................... 24
ADR in the Community.......................................................................... 27
ADR in Education.................................................................................. 29
Conclusion............................................................................................... 35
CHAPTER IH: METHODOLOGY
Introduction............................................................................................ 37
Purpose of the Study.............................................................................. 37
Research Paradigm................................................................................ 38
Type o f Study................................................................... ................... 39
Limitations o f the Study...................................................................... 40
Sample Population................................................................................ 41
Instrumentation....................................................................................... 44
Reliability and Validity......................................................................... 54
Data Collection....................................................................................... 56
Data Analysis and Presentation............................................................ 58
CHAPTER IV: FINDINGS AND INTERPRETATIONS
Introduction............................................................ .............................. 61
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Demographic Information.......................................................................... 62
Presentation of the Data.......................................................................... 71
Interpretation and Discussion.....................................................................117
Summary................................................................................................... 124
CHAPTER ¥: SUMMARY OF FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS
Introduction............................................................................................... 126
Findings........................................... 126
Recommendations.................................................................................... 133
Recommendations for Further Study....................................................... 136
BIBLIOGRAPHY................................................................................................. 138
APPENDICES...................................................................................................... 145
A. Criteria for Choosing SELPAs................................................... 145
B. Preliminary Cover Letter to SELPA Directors.......................... 147
C. SELPA Demographics Questionnaire.......................................... 150
D . Letter to Study Respondents ............................................ 157
E. Interview Survey Questions and Introduction to Script 159
F. Pilot Study Information........................................ 170
G. Data Organization o f the ADR Components............................. 184
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LIST OF TABLES
Table 1 : SELPA Respondents and ADR Cases 44
Table 2: SELPA Demographic Information 65
Table 3: Dispute Issues of all ADR Cases Mediated Since Implementation 66
Table 4: Issues Successfully Mediated Through ADR Process 66
Table 5: State Level Due Process and ADR History Since Implementation 68
Table 6: Disabilities Involved in ADR Cases Since Implementation 69
Table 7: Staff Involvement with ADR 70
Table 8: Fairness o f the ADR Process 94
Table 9: Reduction o f Attorney Fees Since ADR Implementation 124
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ABSTRACT
Law has protected the educational right o f students with handicapping
conditions and their parents throughout the nation since 1975. All states have a
process in place where parents or schools districts can request a due process
hearing at the state level. There is substantial evidence that due process cases
regarding special education issues have increased throughout the nation.
Currently, the primary system in place in California for resolving disagreements
regarding Special Education students is state mandated Due Process. Evidence
suggests that resolution processes such as mediation and fair hearings do not
foster positive working relationships nor build trust between a district and a parent
to provide an appropriate education for the child. Because the number o f families
choosing state level due process is increasing in spite o f all these drawbacks, it is
critical to take a closer look at viable alternatives. One such alternative that
California has begun to explore is Alternative Dispute Resolution (ADR). The
purpose o f this study was to identify conditions under which ADR programs
implemented in selected SELPAs are successful in their efforts to reduce due
process special education hearings throughout California. The three SELPAs
studied were identified based on criteria defined by research o f what is necessary
to have successful ADR programs in the workplace, community, and educational
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setting. A demographics questionnaire and survey questions were used to gather
data to develop a “blueprint” o f components necessary for a successful ADR
program in a SELPA or a school district.
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CHAPTER 1
STATEMENT OF THE PROBLEM
Introduction
Law has protected the educational rights of students with handicapping
conditions and their parents throughout the nation since 1975, The Education for
All Handicapped Children Act o f 1975 (Public Law 94-142) was the first piece of
legislation that required states to provide due process hearings for parents o f
special needs children wishing to challenge a district’s decision regarding
eligibility, program, or placement (Gartner & Lipskey, 1987; Goldberg &
Kurilof^ 1991). To avoid litigation shortly after this legislation was enacted,
many districts scrambled to comply with the law. The law intended for parents to
be an integral part of their child’s education and provide a means o f planning
implementing, and monitoring their child’s special education program and
services (Singer & Butler, 1987; Goldberg & KurilofF, 1991).
Twenty-six years later, due process rights remain a powerful component
o f the federal special education statute. All states have a process in place where
parents or school districts can request a due process hearing at the state level.
While due process procedures are enacted in a similar manner across the country,
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a major difference among the states is in the use o f a single or dual level system.
States use either:
1. A one-tiered system in which the hearing is initiated at the state level with no
formal hearing procedure at lower levels, or
2. A two-tiered system in which a hearing takes place initially at the school or
district level, with the right o f appeal to a state-level hearing officer or panel.
Throughout the United States, there are nineteen states with a two-tiered system
and thirty-two states with a one-tiered system in place. Those states using a two-
tiered system believe that it is more effective to work toward dispute settlement at
a level closest to the differing parties (CADRE, 1999). A more informal approach
is possible at a lower level lessening the involvement o f state personnel who may
be perceived as “outsiders” to the dispute. However, the trend in recent years has
been to move from a two-tiered system to a one tier-system, primarily because of
the delay in settlement caused by the repetition necessitated by multiple levels.
Since 1991, five states-Georgia, Illinois, Maryland, Missouri, and Wisconsin-
have changed from a two- tiered system to a one-tiered system. California is a
one-tiered state (CADRE, 1999).
Whether using a one- tiered system or a two-tiered system, there is
substantial evidence that due process cases regarding special education issues
have increased throughout the nation. From 1991 to 1998, due process fair-
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hearing requests increased from 4,079 cases to 9,827 cases. During that same
time, actual hearings held increased from 1,574 to 3,315 (CADRE, 1999). One of
the reasons for this increase is that with each major piece of special education
legislation enacted since 1975, procedural safeguards have widened the scope of
opportunities for parents to file for due process litigation regarding services to
their special needs children (CADRE, 1999). Congress imposed these
procedural safeguards because it believed that it was the best way to achieve
accuracy in fact-finding and fairness. From the law’s perspective, parent
participation was a necessary corrective measure guarding against potential
abuses of power by school authorities (Singer & Butler, 1987).
The next significant piece o f legislation that increased due process
litigation was the Individuals with Disabilities Education Act (IDEA), enacted in
1990. This law added autism and traumatic brain injury to the eligibility list of
special education categories. It was this law that strengthened PL 94-142’s
mandate that every special education student have access to the core curriculum
and the right to be in the general education classroom learning beside non
handicapped peers in the least restrictive environment (PL 101- 476, 1990; Eads,
Arnold, & Tyler, 1995). This mandate, in addition to autism and traumatic brain
injury as eligibility requirements, contributed to an increased demand for services
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that subsequently resulted in an increase in due process litigation (Arnold &
Tyler, 1995; Smith, 1997).
The legislative reform movement in 1990 required special educators to
expand their historical and legislative focus of assuring a free appropriate public
education (FAPE) to encompass the whole child perspective in order to achieve
better educational results for students with disabilities (Smith, 1997). Service
delivery models such as full inclusion were explored to keep these students in the
general education environment to the greatest extent possible in accordance with
the law. Even though there was much resistance from school districts, parents
began exercising their right to have their handicapped child in the general
education setting allowed by law. Because school districts often disagreed with
full time placement o f severely handicapped students in the general education
classroom, parents were forced to exercise their due process rights to keep their
children in the general education classroom setting (Schulte, Osborne, &
McKinney, 1990; Semmel, Abernathy, Butera, & Lesar, 1991).
With the Re-authorization o f IDEA in 1997, procedural safeguards
continued to be woven throughout the law to ensure that the rights o f students
with disabilities and their parents remained protected. I D E A. 97 required all
states to have procedures and mechanisms in place to resolve disagreements
between parents of handicapped students and the school district. These safeguards
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were designed to encourage parents and educators to work out differences by
using non-adversarial methods (PL 105-17,1997). As a result of this legislation,
all school districts must now have a process in place for resolving disputes
between parents and educators regarding special education issues (20USC 1415
[e]; EC 56500.3). The expectation is that there will be an increase in settling
disputes through means other than due process hearings. Ironically, since the
implementation o f this legislation, schools are experiencing an increase, rather
than decrease, in parents accessing due process hearings even though they are
adversarial, costly, and time consuming (Beyer, 1999; Me George School o f Law,
1999). According to a five-year study conducted by Schrag & Schrag (1998-99),
o f the ten states studied in phase 3 H o f the study, all had higher due process
hearings than mediations. For example, Alabama had nineteen mediations and
sixty fair hearings in 1998 (CADRE, 1999).
Califomials Approachio.,^.e Process
Currently, the primary system in place in California for resolving
disagreements regarding placement, assessment and eligibility issues for Special
Education students is state mandated Due Process, which is a one-tiered system.
Whenever a parent and a district are in conflict over a special education issue and
it cannot be resolved through the Individual Education Program (EEP) process, the
only avenue for settling a dispute has been to file for a due process hearing with
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McGeorge School of Law, which is under contract with the California
Department of Education. Options then available for conflict resolution are
Mediation, Fair Hearing, or both.
In California, state level mediation is more informal and less stressful than
a fair hearing. Mediation refers to the voluntary process that states must have in
place as a means o f resolving disputes between school districts and parents of
children with disabilities (Schrag & Schrag, 1999; Mills & Duff-Mallams, 2000).
If Mediation is agreed upon, either party may have an advocate or an attorney
present. A date and location are agreed upon and a trained mediator from
McGeorge School o f Law facilitates the dispute to assist both parties in finding a
resolution. If an agreement is reached, there is no reason to go on to a Fair
Hearing (Mills & Duff-Mallams, 2000). According to an Orange County based
law firm specializing in special education, the average cost per mediation hearing
to a district is $8,000 (Lozano, Smith, Woliver & Behms, 1999). Parents also bear
the risk o f accruing advocate or attorney’s fees, lost time from work, and day care
expenses. The cost o f mediation to the parents or district depends on an advocate
or attorneys’ fees, length o f time, personnel involved, and services agreed upon
by the district (Goldberg, 1989).
If a case cannot be resolved at the mediation level, then it goes to a Fair
Hearing. AFair Hearing refers to the formal due process hearing on any matter
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with respect to the identification, evaluation, or placement o f a child or the
provision of a free appropriate education ( Schrag & Schrag, 1999). At this level,
a hearing officer appointed by McGeorge School o f Law presides over the
hearing. It is ran much like a courtroom, very formal and more adversarial than
the mediation process. This process represents a major intrusion o f the judicial
model into the field o f education (Goldberg & Kuriloff, 1991). At this level there
is more cost, time required, and personnel involved because it almost always
involves attorneys, advocates and "expert" witnesses. Either side may subpoena
witnesses. It is not uncommon to have thirty to forty school personnel testify at
the hearing. The district must take time to locate and coach the witnesses to testify
at the hearing. The decision at this level is totally in the hands o f a hearing officer
(Cadre, 1999). If there is disagreement with the decision, the case may be
appealed to the Ninth Circuit Court in California. Each case has the potential to
go all the way to the United States Supreme Court (McGeorge School of Law,
1999). The average cost o f a single Fair Hearing is $60,000 (Lozano, Smith,
Woliver, & Behms, 1999). Last year in the state o f California there were 1,700
Fair Hearings. This is an increase o f 145 hearings from the previous year
(McGeorge School o f Law, 1999). For the past eight years, California has led the
nation in requests for due process hearings (CADRE, 1999). Due Process
hearings at the state level are very adversarial, costly, time consuming, and seem
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to be on the rise (Goldberg & Kuriloff, 1991; CADRE, 1999, McGeorge School
o f Law, 2000).
Statement o f the Problem
California is not alone in seeing an increase in demand for fair hearings.
The rise o f due process cases has impacted school districts throughout the United
States. Due process hearings cost districts and families time and money, but most
importantly, it accentuates an adversarial relationship between parents and
educators, often at the cost o f the child’s educational experience. Evidence
suggests that resolution processes such as mediation and fair hearings do not
foster positive working relationships nor build trust between a district and a parent
to provide an appropriate education for the child (Goldberg & Kuriloff 1991;
Zack, 1997; Beyer, 1999). However, parents generally do not feel that they are on
an equal footing with a district unless they have an attorney or an advocate to
represent them (Goldberg, 1999). In a study conducted by Goldberg and Kuriloff
(1991), parents and school district personnel stated that the state level system is
unfair, inaccurate, and a totally negative experience. However, both sides
(educators and parents) agreed that the opportunity for due process should be kept
in place for cases where irreconcilable conflict exists. In some instances, parents
file multiple due process cases throughout their child’s school career in constant
pursuit of their rights. This quest closes off opportunities for compromise and
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collaboration with the school district (Goldberg, 1989; Goldberg & Kuriloff,
1991; Beyer, 1999). As a result, the child is the one often losing out on an
education (Beyer, 1999). While due process proceedings are in progress, “stay
put” is invoked which means that as the battle rages, the child may be frozen in an
inappropriate placement. It is not unusual for a district to battle two or three cases
simultaneously for extended periods of time. The availability o f due process
seems to be a necessary condition for people’s sense o f subjective fairness
(Goldberg & Kuriloff, 1991). In emphasizing the pain that parents feel during this
process, Judge Learned Hand stated, “That as a litigant, one should dread a law
suit more than anything else short o f sickness and death” (Roth & Roth, 1988).
Because the number o f families choosing state level due process is
increasing in spite o f all o f the negative drawbacks, it is critical to take a closer
look at viable alternatives. Goldberg and Kuriloff (1991) state that we should not
do away with due process since it is ingrained within the procedural safeguards of
the law, but instead find other ways o f preventing disputes from ending up in
court. A process that includes sensitive, early interventions where parents and
professionals work together collaboratively may be a way to come to agreement
on what constitutes an appropriate education for a child.
The problem is that there is not an alternative, collaborative process in
place in all school districts in the state o f California to settle disputes regarding
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special education issues. To address these highly litigious and emotionally
draining means of settling disputes regarding special education issues, six Special
Education Local Plan Areas (SELPAs) out o f 116 have fully implemented
Alternative Dispute Resolution (ADR) as an alternative program to state level due
process hearings. In 1989, the State Legislature allocated funds for four ADR
pilot sites to test the feasibility o f solving disputes locally, rather than having a
hearing officer or the courts decide a student's fate (California Department of
Education, 1999). According to the CDE (1999), these programs were never
formally evaluated because there was no system in place to collect and record
data statewide to determine their effectiveness. ADR is defined as "an informal
method o f settling disagreements with the use o f a neutral third party that
encourages both parties to problem solve and reach a mutually beneficial
agreement perceived as fair (Goldberg 1989). ADR is a program designed to
resolve conflict at the school district level without involving advocates or
attorneys. When a dispute involving Special Education arises in a sehool district,
a panel is formed consisting o f trained mediators, parent(s) and educator(s), from
a neighboring district to meet at a mutually convenient site to assist the district
and the parent in coming to agreement. Rather than living with a decision made
by a third person, the parties craft their own agreement. All solution panelists are
trained and certified through the local SELPA. Since state mediators, hearing
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officers, attorneys, and advocates are absent from this process, the financial
obligation to both parties is minimal.
Many other SELPAs in California have shown an interest in ADR, but do
not know enough about the extent to which it offers a viable alternative to
mediation or fair hearings. From the review o f the literature, there are a number of
components that must be present in order to insure the success o f any ADR
system. The program must build in fairness, effectiveness, efficiency, disputant
satisfaction, and commitment to the solution (Sheppard, Blumenfeld-Jones, &
Roth, 1989; Goldberg, 1989; Beyer, 1999). Disputants need to be assured of the
neutrality o f the third party (Goldberg, 1989; Pillutla & Murnighan; Beyer, 1999),
that their rights will be protected, and there will be a balance o f power where
disputants have control over the outcome (Pillutla & Muminghan, 1995; Schrag,
1996; Beyer, 1999). Studies show that obtaining trust and confidence o f the
disputants is vital to the success o f ADR (Hiltrop, 1989; Pillutla & Murningham,
1995). Although a variety o f training programs is available throughout California,
the essential components in an ADR program have not been defined clearly
enough to be used as a blueprint for other SELPAs who wish to implement this
program. Once these components are identified, SELPAs will have a blueprint
for success (CADRE, 1999).
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Purpose o f the Study
States and local districts are moving toward using ADR processes because of the
high emotional and financial cost o f litigation (Schrag, 1999). Because o f this
heightened frustration and concern, the time is right to explore the possibility of
implementing ADR as a way to reduce litigation throughout California. The
purpose o f this study is to identify conditions under which ADR programs
implemented in selected SELPAs are successful in their efforts to reduce due
process special education hearings throughout California. This study will provide
insight for SELPAs and school districts that choose to incorporate ADR into their
due process hierarchy o f steps to resolve conflict. At this time no other research
study to specifically identify components necessary for a successful ADR
program has been conducted in California. The six SELPAs that initially began
implementation have not been formally evaluated as to program effectiveness.
Research questions provide direction for the study and the boundaries
necessary to guide the investigation. To identify conditions for success, answers
were sought to the following questions:
1. How do parents and school personnel define the success o f ADR and
is there consensus on the definition o f “success?”
2. What are the components of a successful ADR program as identified
by parents and school personnel?
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3. To what extent do participants (parents and school personnel) perceive
that ADR is a fair and impartial way o f resolving special education
disputes at the district level?
4. Does the implementation o f the ADR process reduce litigation costs
for school districts and parents?
The Importance o f the Study
The study o f the successful components o f an ADR program is important
for several reasons. Since school districts are spending time, money, and
emotional energy on litigation, more SELPAs and school districts are becoming
interested in ADR as a means o f conflict resolution to avoid state mediation and
fair hearing battles. Because o f this interest, the California Department of
Education (CDE) is in its second year of implementing an ADR Mentor Program
to provide assistance to those SELPAs that want to adopt this process. The
findings from this study will provide an invaluable contribution to the CDE as it
continues to assist SELPAs with the designing o f an effective ADR program.
Equally important, the information learned from this study will offer school
districts in California a framework whereby successful ADR programs can be
established. In addition, a limited amount o f information on ADR is known in
California, so this study will provide a baseline for the much- needed
implementation and evaluation o f this alternative.
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Definition o f Terms
ADR: Informal method o f settling disagreements with the use of a neutral
third party that encourages both parties to problem solve and reach a mutually
beneficial agreement perceived as fair.
CADRE: Consortium for Appropriate Dispute Resolution in Special
Education. The National Center on Dispute Resolution is fimded by the United
States Department of Education Office o f Special Education Programs. CADRE
uses advanced technology as well as traditional means to provide technical
assistance to state departments o f education on implementation o f the mediation
requirements under IDEA 97. CADRE also supports parents, educators, and
administrators to benefit from the full continuum o f dispute resolution options
that can prevent and resolve conflict. This project is coordinated by Direction
Service which is under a grant from the United States Department o f Education
Office o f Special Education Program.
Component: Part o f an ADR program.
Disputant: Person with a disagreement who goes before an ADR
solutions panel.
Due Process: Provided to parents o f special needs children who wish to
challenge a district’s decision regarding eligibility, program, or placement.
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Fair Hearing: At the state level this is a formal due process hearing on any
matter with respect to the identification, evaluation, or placement of a child or the
provision of FAPE.
FAPE: Free Appropriate Public Education.
IDEA: Individuals with Disabilities Education Act.
H E P : Individual Education Program.
Litigation: Court activity that involves attorneys.
Mediation: At the state level this is a voluntary process that states must
have in place as a means o f resolving disputes between school districts and the
parents o f children with disabilities.
Prevails: win.
Respondent. Subjects who participate in a study.
SELPA: Special Education Local Plan Area. School districts and county
school offices that join to form a geographical region o f sufficient size and scope
to provide for all the special education service needs of children residing within
the region boundaries.
Stay Put: Child remains in current program at the time o f the dispute.
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Assumptions
The basic assumptions developed for the purpose of this study are:
1. Interviews conducted in person or by telephone provide valid and
reliable information on which to base analytic procedures.
2. The number o f ADR cases studied provides a reasonably accurate
identification o f the components necessary to develop a successful
ADR program.
3. The limited research in this area indicates a need to study the
components necessary to create a blueprint for successful ADR
programs.
4. All respondents interviewed have a basic understanding o f the ADR
process used within their SELPA.
Delimitations
1. This study is limited to three out o f 116 SELPAs in California and three
successfully mediated cases within each SELPA. Nonprobability
sampling techniques were used which do not use random sampling. Cases
were specifically chosen based on knowledge and experience with ADR.
2. Unsuccessfully mediated cases were not included in this study.
3. SELPAs studied do not represent the demographics o f all SELPAs across
the state o f California.
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Limitations
1. Since SELPAs studied were from Northern California, results may not
generalize to all SELPAs in California.
2. Many interviews were conducted by phone due to vast geographical
distance and unavailability in person o f respondents.
3. Respondents might not have perceived the questions in a consistent
manner, which might have influenced the reliability o f the results.
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CHAPTER II
REVIEW OF THE LITERATURE
Introduction
Alternative Dispute Resolution (ADR) is a catchall term that is used
interchangeably with mediation, arbitration, and conflict resolution to describe a
wide variety o f voluntary systems used to resolve conflict. There are many ADR
techniques implemented throughout the world. ADR is defined as an informal
method o f settling disagreements with the use o f a neutral third party that
encourages both parties to problem solve and reach a mutually beneficial
agreement perceived as fair (Goldberg, 1989; Kheel, 1999). This chapter will
explore techniques used to arrive at a mutually beneficial solution, examine the
role o f the mediator, and identify the components that make ADR an effective
way to resolve disputes. In addition, a discussion will occur as to when it is
appropriate and inappropriate to use this model in the workplace, community, and
educational setting.
Mediation is one o f the oldest and most common forms o f conflict
resolution (Pruitt and Kressel, 1989). Mediation dates back to the early 1950's
when researchers from varying educational disciplines attempted to
institutionalize applied interdisciplinary social science. This research movement's
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focus was to offer advice and guidance to policy makers on ways to prevent future
wars (Harty and Modell, 1991). Although the movement never really solidified, it
left as a legacy the Journal o f Conflict Resolution and the Center for Research on
Conflict Resolution, both o f which have formed the basis o f future movements in
conflict resolution.
Techniques
There are a variety of techniques used in ADR to resolve disputes. One
ADR technique that is commonly used to resolve conflicts is the facilitation
system. The use o f this system involves a neutral third party who attempts to
bring the disputants together by focusing on the process, not the issues (Zack,
1997). A second common technique is the conciliation process where the neutral
third party serves as a communicator to move toward resolution without offering
suggestions (Zack, 1997). Mediation is yet another technique where the third
party is experienced in the relevant field and offers suggestions to move toward
resolution.
On a more formal basis is fact finding, which is a non-binding process
where a neutral third party hears the issues and submits finding o f facts and non
binding recommendations (Zack, 1997; Tyler-Wood, et. a l, 1990; Stonberg,
1994; Suarez, 1994). Another more formal system is arbitration. This system
holds both parties to a decision made by an arbitrator. In facilitation, conciliation
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and mediation, the parties craft their own solution with the assistance of a neutral
third-party who encourages disputants to come to a mutually beneficial
agreement. With fact-finding and arbitration, the solution is decided by the
mediator (Zack, 1997). Whatever the style, the technique should fit the situation
(Beyer, 1999
Mediation Stages
Conclusions from studies on mediation effectiveness show that mediators
follow logical steps when resolving conflicts (Sheppard, Blumenfeld-Jones, Roth,
1989; Pruitt, McGillicuddy, Welton & Fry, 1989; Negotiator Newsletter, 1998).
According to the Office o f the Attorney General in Massachusetts where Conflict
Intervention teams are formed to deal with school crisis, there are definite stages
to the mediation process. These stages include assessment, intake, mediation, and
follow-up. Assessment means meeting with school officials to obtain a sense o f
the issues and interests o f the parties and to establish ground rules. Intake
involves talking to those involved to get both sides o f the conflict. In the
mediation phase, the role o f the mediator is defined, information is clarified and a
solution is agreed upon. Throughout this process, communication is emphasized.
The final phase o f the process is the follow-up, which insures implementation o f
the decision. When the Conflict Intervention Teams go into the schools, they
follow these stages in mediation. These basic stages have also been adopted
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across the domains o f conflict resolution in the areas o f labor mediation,
community-based dispute resolution, marriage and family therapy, international
relations, and law (Negotiator Newsletter, 1998; Sheppard, Blumenfeld-Jones,
Roth, 1989; Pruitt, McGillicuddy, Welton, Fry, 1989).
Role o f the Mediator
The mediator’s role in ADR is instrumental in solving conflicts. To be
effective, a mediator must do more than act as a facilitator. In studies conducted
by Hiltrop (1981-82 and 1989), the findings outlined mediator strategies that
would most likely be effective in bringing parties to agreement. The studies
showed that obtaining the trust and confidence o f the disputants is vital to the
success o f ADR (Hiltrop, 1989; Pillutla & Mumighan, 1995). The mediator will
have greater success with reaching a settlement if both parties show a willingness
to use the process (Pruitt, McGillicuddy, Welton, Fry, 1989; Vidmar, 1987;
Hiltrop, 1989, Slaton, 1994; Beyer, 1999). It appears that the less authority the
mediator has over constructing the decision, the more time taken to diagnosis and
clarify issues involved in the dispute (Sheppard, Blumenfeld-Jones, Roth, 1989).
Mediator Tactics
There are positive tactics that the mediator should use that will benefit the
process. First of all, the mediator must meet with each party (caucus) separately to
discover issues and attitudes (Pruitt, McGillicuddy, Welton, Fry, 1989).
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Secondly, the mediator must become the communication link between the parties
to diffuse tension and keep matters under control. Thirdly, the disputants must be
helped to retain/obtain a positive working relationship (Beyer, 1999; Pillutla and
Mumighan, 1995). The mediator must also generate options and analyze options
presented from the disputants. Sheppard, et. al. (1989) conducted a study on ways
that mediators perceive their roles. Results o f the study showed that of four types
o f frames (ways to approach a dispute) studied, the only frame that allowed the
disputants to craft their own solution was the "negotiator frame." This was the
only frame that allowed compromises to be made so that a negotiated solution
was possible.
Components
Along with the mediator’s skill and expertise, there are several
components that should be included in an effective ADR program. The program
must build in fairness, effectiveness, efficiency, disputant satisfaction, and
commitment to the solution (Sheppard, Blumenfeld-Jones, and Roth, 1989;
Goldberg, 1989; Slaton, 1994; Beyer, 1999). Disputants need to be assured o f the
neutrality o f the third party (Beyer, 1999; Pillutla and Mumighan, 1995; Slaton,
1994; Goldberg, 1989), that their rights will be protected, and there will be a
balance of power where disputants have control over the outcome (Pillutla and
Mumighan, 1995; Schrag, 1996; Beyer, 1999;). Effectiveness assures that the
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procedure is followed to uncover the facts, reach resolution, and hold the
resolution binding. The timeliness, speed of the resolution, and the cost in terms
o f time and money are factors affecting efficiency (Goldberg, 1989; Monthly
Labor Review, 1996; Zack, 1997; Beyer, 1999). To obtain satisfaction, disputants
need to be assured that there is a level o f privacy, and that they are involved in the
process of creating a mutually agreed-upon solution (Schrag 1996; Beyer, 1999;
Goldberg, 1989). If the disputants are satisfied with the process and feel that the
major issues have been addressed, there is a greater chance that the disputants will
develop a long term commitment to the solution (Sheppard, Blumenfeld-Jones,
Roth, 1989; Pruitt, McGillicuddy, Welton, and Fry, 1989; Schrag, 1996;
Goldberg, 1989) and implementation o f the agreement. There is also greater
assurance that cooperative school and parent relationships will be preserved
(Schrag, 1996; Beyer, 1999; Goldberg, 1989; Hiltrop, 1989).
Another component that contributes to the effectiveness o f ADR is in-
depth, ongoing training for mediators. Mediators must be trained in mediation
techniques and knowledge o f laws and regulations in their particular field
(Schrag, 1996; Beyer, 1999). There are times when the law must prevail and a
judicial forum is more appropriate than ADR. Trained, highly skilled mediators
will better be able to make this decision on a case-by-case basis (Schumaker,
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O’Laughlin, & Freemuth, 1997; Monthly Labor Review, 1996; Slaton, 1994;
Tyler-Wood, Smith, & Barker, 1990; Goldberg, 1989).
ADR in the Workplace.
Early in its history, the practice o f formal mediations was limited
to international relations and labor management relations (Pruitt & Kressel, 1991).
In Canada and the United States, collective bargaining disputes have long been
settled using ADR (Zack, 1997). In 1990, Congress passed the Administrative
Dispute Resolution Act giving all federal agencies authority and encouragement
to use ADR
(Schumaker, et al., 1997). In 1995, a Due Process Protocol was developed by a
group of American organizations to establish a model o f fairness to equalize the
employer-employee relationship and to protect people who have legal complaints.
ADR is also used in the United States to resolve disputes regarding labor issues in
the work place
(Fisher & Ury, 1991; Stonberg, 1994; Suarez, 1994; Schumaker et al., 1997;
Zack, 1997; Kheel, 1999). One strategy that has been successful in the workplace
is the use o f an in-house staff member called an Ombudsperson who acts as an
advocate to resolve internal disputes. This person is hired by top management
with the power to assure workers o f anonymity and protection from retaliation
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from the management as they attempt to resolve internal disputes. They often act
as conciliators or mediators (Zack, 1997).
As Congress intended in 1990, many organizations are now considering
the implementation o f ADR programs as ways to solve in-house conflicts, save
legal fees, and preserve good working relationships (Handlogten, Caruth, &
Faulkner, 1997; (Schumaker, e ta l, 1997; Kheel, 1999. Dispute resolution
procedures save time, money, emotional stress, and enlarge the scope of
workplace justice to more people (Antoine, 1994; Zack, 1997; Kheel, 1999). It
also helps to protect individuals who are beyond the protection o f unions and
government agencies, while also relieving the labor courts o f some o f the
frustration they experience in fulfilling their mandates. ADR is also a valuable
process where there are ongoing relationships, which could be tom by litigation
(Priest, 1991; Zack, 1997). Mediation has a better chance of working when the
parties are willing to settle and their enthusiasm about the mediation process is
high (Hiltrop, 1989; Slaton, 1994). It is more likely that ADR will be used if the
company is the respondent, or both companies are culpable to some degree
(Carver & Vondra, 1994).
In order to make the process effective within a company, senior
management must be committed to problem solving, not to adversarial
relationships (Carver & Vondra, 1994; Handlogten, et al, 1997). ADR must be
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given top priority if it is to be effective within an organization. If top
management has been involved from the beginning in the development o f the
process, it is more likely to succeed. Even if the process is in place, without a
firm commitment from the management, old patterns, ingrained attitudes, and
litigious habits will interfere with the process (Carver & Vondra, 1994). For
instance, at Global Information Solutions (formerly NCR) dispute procedures
have been streamlined so that arbitration will really occur and not litigation in
disguise (Carver & Vondra, 1994).
It is also important for senior managers to receive training to learn about
ADR and its benefit (Handlogten, Caruth, & Faulkner, 1997). Managers may
then be better able to develop internal operating procedures with advice from
legal counsel and staff as needed. Once the program is developed, it is imperative
that the manager oversees and guides the program (Handlogten, et al., 1997). In
addition, companies that have used ADR over a long period o f time have more o f
an opportunity to experience success, which is a motivator to continue the
program.
ADR is not always seen as an effective way to resolve disputes in the
workplace. As discussed earlier, ADR will not be effective if the company does
not give it top priority. Even if the process is in place, without this commitment,
old patterns, ingrained attitudes, and litigious habits will interfere with the
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process. When this happens, companies go back to investing a lot o f time,
money, and negative energy into solving problems (Carver & Vondra, 1994).
ADR is also ineffective when companies have attitudes that winning is the only
thing that matters, and the case itself becomes less important than the principle
involved. In addition, when the company is the complainant and feels that it is
legally right, court litigation is usually the resolution of choice (Vidmar, 1987;
Schumaker, et al., 1997; Handlogten, et al., 1997; Kheel, 1999).
ADR in the Community.
In the past ten years, formal mediation has gained notoriety in all areas of
social conflict including family and divorce settlements, small-claims cases,
neighborhood feuds, landlord-tenant disagreements, and civil cases. To assist with
resolving these conflicts and relieving the back- logged courts, neighborhood
justice centers have been established in several states where people can enlist the
services o f a mediator (Sander, 1984; Pruitt & Kressel, 1991; Kassberg, 1989;
Priest, 1991; Slaton, 1994). This community based ADR movement sought to
remove outside standards on dispute outcomes (Priest, 1991). The late 1970’s to
the early 1980’s was a period where emphasis was on providing “how to”
manuals for community and divorce mediators. It was a time when the mediation
movement was scrutinized closely to determine whether it was a negative or
positive force in society. During this time, two new journals surfaced to assist
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practitioners; they were The Mediation Quarterly and The Negotiation Journal.
Studies conducted during this period showed that mediation was preferred to
courtroom settlement and was binding (Pruitt & Kressel, 1991). ADR became an
efficient way to offer a satisfactory substitute for a trial (Priest, 1991). Funds also
became available for pilot research projects and grants through the National
Institute for Dispute Resolution, which was established in 1983 (Pruitt & Kressel,
1991). Since the courts do not have the time to deal with the details of custody
issues, ADR is appropriate to use in family disagreements over such issues as
visitation rights. Even when a case is well into legal proceedings, court patterns
have shown that there is a point during this process that would still benefit using
ADR. At this point, the parties feel that it is more beneficial to settle than to
continue (Priest, 1991). Many families feel the pressure to settle because the
courts will make their decision for them (Kassberg, 1989).
Again, when legal issues are in question, and one party is clearly right, and
the stakes are high, it is not appropriate to use ADR as a way o f solving
community conflicts (Priest, 1991; Vidmar, 1992; Monthly Law Review, 1996).
If mediation is court ordered rather than voluntary, ADR will not be effective
because families feel forced to make a decision without real input (Vidmar, 1992).
If not court ordered, mediated settlements are not enforceable by law (Kassberg,
1989). There are times when disputants want the courts to make a decision for
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them because they feel that only an authoritative decision from a judge will end
the conflict (Vidmar, 1992). Basically, ADR tends not to work when the
relationship is brief, vindication is the goal o f the disputant, and when the
disputant perceives that there is unequal power (Priest, 1991; Vidmar, 1992).
ADR in Education.
While mediation was firmly established in the labor force, it wasn’t until
1975 that Congress passed the Education for All Handicapped Children Act
(Public Law 94-142, 1975) to delineate, fund and implement educational rights
for handicapped students. This law focused on the needs o f individual students
and provisions designed to solve problems that children with handicapping
conditions experienced because the public school system and other public
agencies failed to address the issue properly. There were six basic principles in
this law:
1. Least restrictive environment
2. Rights to access public education programs
3. Scope o f broadened services to be provided by the schools and a
set o f procedures for determining them
4. General guidelines for identification of disability
5. The principles o f primary state and local responsibilities (PL 94-
142, 1975; Eads, Arnold & Tyler, 1995).
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This law was seen as a “Bill o f Rights” because it eliminated exclusion
and became the core of Federal funding for special education. Its intent was to
transform special education practices across the nation by bringing all states up to
the standard defined by court action and advocacy groups for handicapped rights
(Singer & Butler, 1987; Gartner & Lipsky, 1987). The law outlined the process
whereby all children regardless o f their handicap, were assured the same
educational rights and privileges given to their non-handicapped peers: “a free
appropriate public education (FAPE)” (PL 94-142,1975). The law expressed
very clearly that students with disabilities be placed in regular classes whenever
possible where they could receive specialized services as necessary.
This law provided a legal avenue to settle disputes in the education arena
by allowing parents and students to advocate for a fair opportunity to receive
appropriate programs. This law was met with resistance from the schools because
before EHA became a law, children with disabilities were often not served in the
public schools because hey were thought to be “uneducable” (Gardner & Lipsky,
1987; Goldberg, 1989). When they were allowed to attend, the education they
received was usually not tailored to their unique needs. Sometimes they were
removed from the regular education classroom totally and educated in a separate
classroom or in a separate school (Gartner & Lipsky, 1987; Singer & Butler,
1987; Goldberg, 1989). Immediately after EHA became law, districts complied
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with its procedural guarantees because they wanted to receive federal and state
funds and avoid court litigation (Gartner S c Lipsky, 1987).
In 1990, PL 94-142 became PL 101-476 -The Education of the
Handicapped Act Amendments. This act was later renamed to be the Individuals
with Disabilities Education Act (IDEA). This law was an extension and further
clarification o f PL 94-142. It reauthorized and expanded the discretionary
programs, mandated transition services, added autism and traumatic brain injury
to the list o f categories of children and youth eligible for special education and
related services, and provided support for programs for children with serious
emotional disturbances (PL 101-476, 1990; Eads, et al., 1995). It was this law that
strengthened PL 94-142’s mandate that every special education student have
access to the core curriculum and the right to be in the general education
classroom learning beside non-handicapped peers in the least restrictive
environment.
The most current amendment to special education law is Public Law 1 O S -
17, The Individuals with Disabilities Education Act Amendments o f 1997 (Re
authorization o f IDEA, or IDEA 97). The goals o f this law were to review,
strengthen, and improve IDEA to better educate children with disabilities and
enable them to achieve a quality education (PL 105-17, 1997). In 1997, IDEA
was re-authorized to include a requirement that State and local educational
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agencies (LEAs) provide an option for mediation if a request was made for a due
process hearing (IDEA Amendment 1997, Public Law 105-17, 615 (e)).
Congress designed state level mediation to encourage parents and school
districts to settle disputes in a non-adversarial way to avoid due process hearings.
IDEA 97 further stated that LEAs may require parents who choose not to go to
state level mediation to meet with a “disinterested” party to explain the process
and benefits of mediation (Beyer, 1999; Mills & Duff-Mallams, 2000). In the past
twenty-six years since 1975, due process litigation has increased six- fold. This
increase in special education litigation is due to all of the special education
legislation and regulations that have provided particular protections for students
with disabilities. The provision for attorney’s fees in 1986 added substantially to
the litigation fire (Zirkel, 1997).
Certain cases are more appropriate for ADR than others. It is helpful in the
following situations:
1. When communication is the issue
2. Both parties do not have all o f the information needed to solve the
problem
3. Trust is broken between both parties
4. Private school placement is not an issue
5. There is no negative history
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As stated earlier, the skill level o f the mediator is a major factor in the
success or failure of the process. In addition, all parties must be willing to listen,
compromise, and to reach an agreed upon solution. Those involved in
implementing the plan must also be part o f the planning process (Mills & Duff-
Mallams, 2000).
There are times when special education issues do not lend themselves to
ADR as a method o f settling a dispute. Special education laws have been put in
place to protect special education students and their families by setting rules for
providing services. By allowing solutions panel members to mediate and
compromise legally mandated rights, the law’s effectiveness is altered (Goldberg,
1989). Vidmar (1989) encourages educators to examine the process by which the
settlement is fashioned to understand why outcomes occur. If there is a clear legal
answer to the dispute, it may not be prudent to use ADR (Vidmar, 1989;
Goldberg, 1989). Fair hearings are necessary in cases where legal issues and
irreconcilable conflict exists (Goldberg & Kuriloff, 1991).
ADR may also be an effective means o f dealing with student peer conflict
in schools. When schools are in crisis, it is important to have a system in place
that is able to deal with emotional trauma and conflict. Many school districts
around the country have put “Conflict Intervention Teams” in place to deal with a
school crisis such as racial violence. These teams may have members from
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agencies such as Mental Health, and experienced volunteer mediators from the
community. During a crisis, these team members go into action quickly and stay
on a school site until the crisis is under control. It is important to remain neutral
during the crisis. However, it would not be appropriate to use this method during
a crisis that escalated to a level involving the law enforcement and legal system
(Negotiation, 1998).
ADR has been very effective in school districts during employee contract
negotiations. Many districts are using principled negotiation, a form of ADR, to
come to agreement so that there is a win-win situation. Principled negotiation is a
set o f strategies that builds on the theories Roger Fisher and William Ury
presented in Getting to Yes: Negotiating Agreement without Giving In. Using the
principles o f ADR, this process focuses on issues and interests o f both parties.
The union representatives and the administration are collaborative problem
solvers who identify criteria that both parties have in common so that final
solutions can meet all needs and standards set (Tyler-Wood, et al., 1990; Fisher &
Ury, 1991; Jascourt, 1994). By understanding each other and learning of each
others interests, a better agreement can be crafted in a timely manner that truly
represents the best interests of all involved (Tyler-Wood, et al., 1990; Fisher &
Ury, 1991; Jascourt, 1994; Stonberg, 1994, Suarez, 1994).
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Principled negotiation will not work if two sides are deadlocked on major
issues, the working relationship is poor, and neither side will accept outside help
to mediate. Union and management must be willing to change the way they
approach collective bargaining (Jascourt, 1994). Some school people are
suspicious of this process because they think that traditional, adversarial
negotiations are the only effective method in the battle to win (Stonberg, 1994).
If attorneys are involved to control the process, it will not work to use principled
negotiation as an ADR method (Jascourt, 1994). In addition, school systems that
have many unions may find this process too time consuming. Also, school
districts may not be able to justify the expense o f hiring someone to facilitate or
train people (Tyler-Wood, et al., 1990), which is necessary if this collaborative
method is to succeed (Stonberg, 1994; Suarez, 1994).
Conclusion
ADR is a system that has proven effective in reducing litigation in the
community, workplace, and the educational arena. There are many ADR
techniques implemented throughout the world. ADR is a term used to describe
mediation, arbitration, and conflict resolution. The courts, the work place, and the
public schools have embraced ADR as a means o f settling disputes using a
process that is perceived as fair, impartial, and the parties have a say in crafting
the solution. When the key components outlined in this chapter are included, the
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results seem to build positive relationships that assure a speedy implementation of
the agreement. Neil Vidmar (1989) in his article on dispute outcomes and
compliance encourages the reader to examine the conflict resolution process to
determine its appropriateness. For example, the Community Mediation Service at
the University ofHawaii (Slaton, 1994) set up guidelines as to the appropriateness
o f an ADR case. The ongoing relationship between the parties and agreement
among all disputants to try mediation were principles involved in the decision as
to whether to accept a case (Slaton, 1994). From the literature reviewed, ADR is
not the appropriate process to use if the issues are legal and one side is clearly in
the right, the procedure is allowed to be a litigation look-alike, winning at all costs
is an issue, and when attorneys are involved and control the process. However, if
used appropriately, it will lead to improved communication and a better product.
The end result will be a happier staff and a more efficient work, school, or
community.
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CHAPTER 111
METHODOLOGY
Introduction
This study was framed in terms o f four research questions, which provide
direction, protocol, and the boundaries o f the investigation. The methodology
utilized in this study is described in this chapter. This chapter is divided into ten
sections: (1) purpose o f the study, (2) research paradigm, (3) type o f study, (4)
limitations of the study, (5) sample population, (6) instrumentation, (7) reliability
and validity, (8) data collection, (9) data presentation, and (10) data analysis.
Purpose of the Study
The purpose of this study is to identify the components necessary to
develop successful ADR programs in SELPAs and school districts to reduce due
process special education hearings throughout California. To assist with the
identification o f the components, the following questions were asked:
1. How do parents and school personnel define the success o f ADR and
is there consensus on the definition of “success?”
2. What are the components o f a successful ADR program as identified
by parents and school personnel?
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3. To what extent do participants (parents and school personnel) perceive
that ADR is a fair and impartial way o f resolving special education
disputes at the district level?
4. Does the implementation o f the ADR process reduce litigation costs
for school districts and parents?
SELPAs and local school districts in California are beginning to examine
the ADR process as a viable way to reduce litigation regarding special education
issues. This study will provide useful data to all SELPAs and school districts that
choose to utilize ADR as a means o f reducing the need for mediations and fair
hearings at the state level. At this time, there is limited information regarding
successful components that must be included in ADR programs implemented in
California.
Research Paradigm
The qualitative method was chosen for this study because it enables the
researcher to focus on naturally occurring settings (Miles & Huberman, 1994).
Using this method increases the likelihood that rich descriptions, and true to life
complexities will be revealed during the data gathering process. Having direct
contact with respondents enables the researcher to rely on insights and personal
experiences to assist with the understanding o f the cases studied (Best & Kahn,
1993). The flexibility o f the design o f the data collection times and methods can
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be varied as a study progresses so that the researcher is not locked into rigid
designs (Best & Kahn, 1993). The qualitative process allows the researcher to
bring a case to life to better examine theory development, or create an educational
intervention. This is preferable to only reading quantitative reports because it
enables the researcher to develop a deeper understanding of events and issues
(Best & Kahn, 1993, Gall, Borg & Gall, 1996). Qualitative data is a good strategy
for exploring a new area, and developing and testing hypothesis to determine
whether specific predictions materialize. This type o f data is also useful when the
researcher must explain or reinterpret quantitative data gathered from the same
setting.
Type of Study
This study employed a mixed quantitative/qualitative research design
utilizing a demographics questionnaire, in- person, and telephone interviews.
Interviewing is a method of qualitative research consisting o f oral questions by
the interviewer and oral responses by the research participants (Fowler and
Mangioni, 1990). Interviews typically involve individuals who speak in their own
words and have their responses recorded by the interviewer, either verbatim,
through audiotaping, videotaping, handwritten or computer-generated notes, or in
short-term memory for later note taking. In this study, all interviews were tape-
recorded. The interview was used in this qualitative research study because it
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permits open-ended exploration of the topics in the words o f the respondents
(Gall, Borg & Gall, 1996).
Interviewing ranges from tightly structured survey interviews with preset,
standardized, normally closed questions to the other end of the continuum which
are open ended, unstructured and seem almost in the form o f a friendly
conversation (Seidman, 1991; Fowler, 1995). Interviewing provides access to the
context o f people’s behavior and thereby provides a way for researchers to
understand the meaning o f the behavior (Seidman, 1991). The interview format
chosen for this study was the standardized, open-ended format that involves a
predetermined sequence and wording of the same set o f questions to be asked o f
each respondent in order to minimize the possibility o f bias (Gall, Borg & Gall,
1996).
Limitations of the Study
The interview method o f gathering data is subject to biases and
generalizations. Because the researcher is the primary data gatherer, personal
values, assumptions, and bias that affect the study must be identified at the
beginning o f the study. The author o f this study has a strong belief in the
principles behind ADR, plus twenty- five years o f experience in the field of
special education as a teacher and administrator. Therefore, certain bias may be
brought to this study as a product o f these experiences. To avoid bias, the
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interviewer tape recorded all answers and hired a third party unfamiliar with ADR
to transcribe the interview tapes verbatim.
Because only three out o f 116 SELF As in California met the criteria for
this study, it may not be possible to generalize the information learned from this
study to all o f the SELPAs throughout California. The SELPAs selected for this
study are from northern California, and encompass rural, sparsely populated, large
geographical areas.
Sample Population
Currently there are six SELPAs in California that have been identified by
the California Department o f Education as leaders in ADR and serve as mentors
to California SELPAs that wish to plan and implement ADR. The six SELPAs are
Placer Nevada, Auburn, Ca; Butte County, Oroville, Ca; Sonoma, Santa Rosa,
CA; Contra Costa, Concord, CA; El Dorado County, Placerville, CA; San Luis
Obispo, San Luis Obispo, CA
In 1977, AB 1250 required all school districts and county school offices to
join to form geographical regions o f sufficient size and scope to provide for all the
special education service needs o f children residing within the region boundaries.
Each region (Special Education Local Plan Area-SELPA) developed a local plan
describing how it would provide special education services. The SELPA
structures vary in form to include multi-district, multi-district/county office,
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42
single district, multi-district/multi-county, and countywide SELPAs with Joint
Powers Agreements. The three SELPAs chosen for this study are multi-
district/county office SELPAs.
Criteria for choosing SELPAS
Based on the literature review, the following criteria were used to
determine the most successful SELPAs in California to study. Each o f the six
SELPA Directors was interviewed by phone using the criteria listed below
(Appendix A).
1. Have fully implemented ADR for five years or longer.
2. Have mediated at least three ADR cases where an agreement was
reached.
3. Provide leadership in the ADR movement throughout the state by
serving as Mentors and trainers to SELPAs that wish to implement
this program.
4. SELPA Director has been trained in the ADR process.
5. SELPA Director has been directly involved from the initial planning
stages to the full implementation o f ADR.
6. SELPA Director who began the program is still there.
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SELPAs that meet all criteria.
1. Contra Costa, Concord, California
16 districts plus the County Office
9,749 special education students
2. El Dorado County, Placerville, California
14 districts including the county office
2,700 special education students
3. San Luis Obispo, San Luis Obispo, California
12 districts including the county office
4,352 special education students
Key informants were chosen using a nonprobability sampling technique,
which does not utilize random sampling (Kerlinger, 1986). This type o f
purposeful sampling is a procedure by which the researcher selects subjects based
upon predetermined criteria regarding the extent to which the selected subjects
could contribute to the research study (Vaughn, Schumm, & Sinagub, 1996). The
key informants in this study are the ADR solutions panelists, district
administrators, parents o f special education students, and the SELPA Directors.
All SELPA Directors were sent a letter explaining the study (Appendix B). Each
Director identified a minimum o f three ADR cases where a written agreement was
developed. The Director in each SELPA was interviewed in person. The
respondents interviewed from each case were: (a) solutions panelists (parent,
community, and school person), and (b) disputants (parent and school
administrator). From all three SELPAs, a total o f 52 respondents representing
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eleven cases were interviewed (Table 1). The number o f respondents chosen for
this study was sufficient to reflect the range o f respondents and sites that makes
up the population (Seidman, 1991). This sample size was sufficient to enable the
interviewer to develop themes and commonalties from the responses given
(Seidman, 1991). ADR cases chosen covered a time span o f two years (1999-
2001).
TABLE 1
SELPA RESPONDENTS AND ADR CASES
SELPA 1 (4 CASES) 2 (3 CASES) 3 (4 CASES)
Parent Disputant 4 3 4
District 4 3 4
Representative
Disputant
Solutions Panel 4 2 2
Member (Parent)
Solutions Panel 4 7 8
Member (District)
SELPA Director 1 1 1
Total 17 16 19
Instrumentation
Instruments for the study included a demographics questionnaire (Appendix C),
and survey questions for the SELPA Director, parents, district representatives,
and solution panelists (Appendix E). The information used to create these
instruments was derived from the research o f successful ADR programs in the
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45
workplace, community, and the educational arena. In addition to the pilot study,
the instruments were reviewed by a retired SELPA director who planned and
implemented A D R in her SELPA. The instruments were then fine tuned and
ready for the pilot study.
Pilot Study
To avoid biased data regarding survey instruments and interview skills, a
pilot test was conducted using the survey questions and the demographics
questionnaire. The pilot study focused on one successfully mediated case from a
Riverside County SELPA school district. This SELPA was chosen because it is
part o f the ADR mentor program established by the CDE in 1999. Each year
CDE has provided funding to support the planning and implementation o f ADR
programs that have become part ofthe Mentor program. The SELPA Director,
two solution panelists, and two disputants (parent and school personnel) were
interviewed. The director was asked to complete and return the demographics
questionnaire prior to the interview. In addition, the SELPA Director was asked
to identify questions on the questionnaire that were not clear and make any
suggestions necessary. Based on this input, modifications and adjustments were
made to the questionnaire.
Pilot testing the interview protocol and questions was critical to avoid
gathering biased data. During the pilot interviews, the researcher was alert to
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46
communication problems, evidence o f inadequate motivation on the part o f the
respondents, and other clues that suggest the need for rephrasing questions or
revising the procedure. During this phase, it was important to carefully evaluate
the questions, limiting those that require a high rate of probing. Respondents
assisted the interviewer with rewording unclear questions. This was the best way
to minimize interview-related error (Fowler & Mangioni, 1990; Seidman, 1991;
Newman & McNeil, 1998). The original and revised survey questions may be
found in Appendix F.
As face-to-face interviews were conducted, questions were tested to
clarify whether the information obtained would be beneficial in answering the
research questions. All survey questions were revised based on the results o f this
pilot study. The pilot study was conducted in January o f2001. After adjustments
were made, the actual interviews were conducted in February, March, and April
o f2001. Transcribing o f the tapes was completed by July o f 2001.
Conducting the pilot study gave the interviewer an opportunity to practice
skills by becoming familiar with the format o f the interviewer guide, recording
procedures, and allowable probes so that the interview could be conducted
without hesitation (Rea & Parker, 1992; Gall, Borg & Gall, 1996; Newman &
McNeil, 1998). Five practice interviews were completed before the official
interviews were conducted.
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47
Demographics Questionnaire
The demographics questionnaire was designed to gather factual
information regarding SELPA participants such as language, level o f parent
education, and prior contact with the school district. The questionnaire provided
some context for the interviews by developing a profile o f each SELPA to include
its due process history. Please see the original and revised versions o f the
questionnaire (Appendix F). It was mailed to each SELPA Director with
directions to complete the twenty-two questions and return it prior to participation
in the interview.
Survey Questions
In reviewing the literature, the two main factors that affect standardization
of survey interviews are poor survey instruments and interview behavior. First of
all, it is important to design good survey instruments that minimize interviewer
effects. The researcher needs to have a clear idea o f the objectives to be measured.
Designing questions to minimize interviewer error requires including in the
question the information that the respondent needs to know in order to answer the
question. The questions developed in this study were written so that they
provided a complete script for the interviewer with exact details, prompts, and
cues (Fowler & Mangioni, 1990; Fowler, 1995). Because the questions included
everything the interviewer had to say, minimum clarification of the question or
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48
probing o f the answers was needed. Definitions were built into the questions so
that the response expectations were clear within the question (Fowler &
Mangioni, 1990; Weisberg, Krosnick, Bowen, 1996). The critical step in writing
good questions is careful, thorough development and pre-testing procedures
before a survey begins (Fowler & Mangioni, 1990; Fowler, 1995).
Respondents answered approximately 15 questions from a structured
protocol. All questions were designed to provide information regarding the
components that make ADR a successful program. The interview protocols were
created based on the review o f the literature, which identified components that
must be included in a successful ADR program whether in the workplace,
community, or in the educational setting.
Good interviewing requires careful selection, training, and supervision of
interviewers (Gall, Borg & Gall, 1996; Newman & McNeil, 1998). The researcher
must decide how many interviewers to employ and whether they must have
special qualifications. The researcher in this study conducted the interviews. The
most important selection criterion is the interviewer’s ability to relate to
respondents positively. A genuine interest in people will provide the foundation
needed to leam the techniques o f interviewing and practicing those skills. The
researcher must be aware o f those who are reluctant to participate and those who
are too eager and perhaps have an ax to grind (Bateman, 1984; Seidman, 1991;
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49
Weisberg, et a1 , 1996). The rapport an interviewer builds in an interviewing
relationship needs to be controlled. Too much or too little rapport can lead to a
distortion o f what the respondent reconstructs in an interview. For instance, this
interviewer did not volunteer personal information because it might have
undermined the goal o f establishing a professional, rather than a personal
relationship in which data gathering is a priority. If the interviewer reveals a
personal background, a respondent may try to guess which answers would be
most valued or preferred by the interviewer (Bateman, 1984; Seidman, 1991;
Fowler & Mangioni, 1990).
The interviewer in this study asked the questions as written, recorded the
answers exactly, did not give a personal opinion, built rapport with the
respondent, and probed answers where they were unclear (Rea & Parker, 1992;
Fowler, 1995; Newman & McNeil, 1998). A study conducted by Fowler and
Mangioni (1990) showed that interviewers with better interviewing skills,
including reading questions, appear to obtain less biased data. The instructions
were standardized and the pace was controlled making sure that it was appropriate
for the respondent.
Questions will sometimes need further probing by the interviewer. It is
clear that probing skills are critical to standardized interviewing. The interviewer
must receive training to obtain the skills needed to probe when answers are not
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50
clear. This is one of the hardest skills for the interviewer to learn and it is the
greatest source of interviewer error in survey research. All interviewers should
use standard probes (Fowler & Mangioni, 1990; Seidman, 1991; Newman &
McNeil, 1998). The interviewer in this study has conducted numerous job related
interviews. Standard probes used in these interviews were “Tell me more about
that,” Anything else?,” and “How do you mean that?” At times the interviewer
needed to redirect the respondent by restating the question or a portion o f the
question. The interviewer in this study listened carefully to the respondents
attempt to provide the appropriate response and was able to zero in on the fitting
answer without being directive. An interviewer walks a very fine line between
probing too hard to create defensiveness and too little so that the interviewer is
unsure o f the respondent’s meaning. This interviewer’s objective was to get the
respondents to answer the questions with responses that fit the answer categories
(Seidman, 1991). The interviewer listened to what the respondent was actually
saying by focusing on details and comprehension, what is really going on inside,
and awareness o f the process by looking for cues such as fatigue. Questions that
needed probing were marked and how probing was done was noted (Seidman,
1991).
Two types o f interviews were conducted in this study, telephone and face
to face. Both types o f interviews used in this study have advantages and
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51
disadvantages. There are many advantages in choosing to conduct interviews over
the telephone. Telephone surveys give the interviewer accessibility to large
geographic areas locally, statewide, or nationwide. Telephone interviewing is
also less expensive than in-person interviews. Data can be collected quickly. In
fact, an interview can be completed in the time that it takes to plan an in-person
survey (Rea & Parker, 1992). Another advantage with regard to telephone
interviewing is that because the respondent remains anonymous, there is a greater
opportunity for the interviewer to conduct in-depth questioning in a less
threatening environment than would be possible in a face-to-face interview (Rea
& Parker, 1992; Lavrakas, 1987; Fowler & Mangioni, 1990; Weisberg, et al,
1996). Another plus to telephone interviewing is that the interviewer can make
sure that the questions are answered in the order intended so that the integrity of
the survey is maintained (Lavrakas, 1987; Rea & Parker, 1992; Gall, Borg & Gall,
1996).
However, there are some drawbacks to choosing telephone interviewing as
a way of gathering data. The interviewer may have less control over the interview
process than in-person because the respondent can end the interview at any time
by simply hanging up. It is also more difficult to develop trust and rapport with
the respondent over the phone compared to a face-to-face interview. Plus, the
interviewer does not have the advantage o f visual cues to explain or clarify
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52
information if needed (Lavrakas, 1987; Rea & Parker, 1992). Because of
geographical distance, weather conditions, time constraints, and availability, 42 of
the 52 interviews conducted were by telephone even though the interviewer
traveled to the local SELPA offices. All respondents interviewed by telephone
and in-person were given a copy o f the survey questions ahead of time to use as a
reference during the interview.
There are many reasons why this researcher originally planned on using in-
person interviews to gather data. First o f all, there is a greater response rate for
long and complicated interviews, for interviews on sensitive topics, or for studies
in which personal contact is important for continued participation over a period of
time (Rea & Parker, 1992). Face-to-face interviewing gives the interviewer the
opportunity to build trust and rapport, and share more information than with
telephone interviewing or questionnaire surveys. People tend to feel more
comfortable sharing feelings and information verbally when face-to-face. The
interviewer is largely in control o f the response situation, scheduling with the
respondent a mutually agreeable time and place, and then controlling the question
pace and sequence to fit the circumstances o f the situation. This insures that the
integrity o f the question sequence is maintained (Rea & Parker, 1992; Gall, Borg
& Gall, 1996). The interviewer also has a lot o f flexibility in following-up on
respondents’ answers to obtain more information or clarify a response. Probing
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for more detail, explaining unclear questions, and using visual aids such as maps
or photographs are also advantages to in-person interviewing (Rea & Parker,
1992). Questions can be more complex and include detailed instructions and
lengthy lists o f alternative responses that many respondents would find confusing
and intimidating if administered through the mail in a questionnaire format (Rea
& Parker, 1992).
In-person interviews do have a negative side. It is very difficult to
standardize the interview situation because the interviewer may influence the
respondent to answer the questions in a certain way (Seidman, 1991; Gall, Borg &
Gall, 1996; Fowler, 1995). For example, an interviewer may unknowingly react to
a response rather than remain neutral (Seidman, 1991). This reaction could affect
future responses by the respondent and jeopardize the validity o f the entire
survey. The respondent may change true responses in order to seek the perceived
approval of a face-to-face interviewer (Rea & Parker, 1992). In- person interviews
cannot provide anonymity for the respondents. However, the interviewer can
analyze and report the interview data so that the identity of the respondent is not
revealed in the study. In-person interviewing is more expensive than telephone
interviews and questionnaires. In-person interviews take more time than a phone
interview because the interviewer must consider interview time and travel time
(Rea & Parker, 1992; Gall, Borg & Gall, 1995; Stouthamer-Loeber & Bok van
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54
Kammen, 1995). If the interviewer prefers an in-home interview, respondents
may be reluctant to cooperate if they must allow interviewers into their homes to
conduct the survey. This may create a greater stress level and more fatigue for
both the Interviewer and the respondent because a stranger is present in the
respondent’s environment. As a result, this may alter the quality o f the responses.
Personal safety is a concern when conducting face-to-face interviews.
Two strangers meeting have certain risks in terms of real and perceived personal
safety o f both the interviewer and the respondent. Rising crime rate has made this
form o f interviewing less desirable (Rea & Parker, 1992). In addition, choosing a
centralized setting tends to produce higher response rates compared with
interviews conducted privately from a respondent’s home or the interviewer’s
office (Rea & Parker, 1992; Stouthamer-Loeber & Bok van Kammen, 1995).
Therefore, to standardize the process, reduce the stress levels, and increase the
safety o f both parties, this researcher chose the County Office in each SELPA as
the centralized setting in which to conduct in-person interviews. All ten
respondents willingly came to the County Office.
Reliability and Validity
In order to conduct an interview survey in a rigorous and unbiased
fashion, it is important to follow specific procedures, and apply them in a
systematic way (Rea & Parker, 1992; Fowler & Mangioni, 1990; Fowler, 1995).
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The interview is a form o f measurement that must meet the same standards of
validity and reliability as standardized tests and other measures used in research
(Gall, Borg & Gall, 1996). Measurement in the social sciences can be just as
rigorous and valid as any other science in reducing interview error (Fowler &
Mangioni, 1990). The challenge for researchers and interviewers working
together is to bring standardization to the interviewing process. Meaningful
measurement occurs by applying the same procedure across a set o f situations so
that differences in the readings that result can be compared and interpreted as
indicating real differences in what is being measured.
In the case of a survey, the standardized measurement process is asking a
question and the measurement that comes out o f the process is the respondent’s
answer as recorded by an interviewer. The goal o f standardization for this study
was that all respondents be exposed to the same question, and all answers be
recorded in the same way. This process was important to follow because there is
more assurance that any variations in the answers can be correctly interpreted as
reflecting differences between respondents rather than differences in the process
that produced the answer. To maintain standardization, the interviewer allowed
the respondent to answer the question in his/her own way, without relying on
cueing from the interviewer. Standardized interviews rely heavily on closed or
fixed-response questions (Fowler & Mangioni, 1990). The interviewer in this
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56
study read the same prepared script to every respondent before beginning the
actual interview. Each question was read exactly as worded and probing was
minimal.
Data Collection
Tape recording or videotaping the interview is a good way to folly and
accurately record responses and provide feedback on interview techniques to
avoid interviewer error. During playback, the interviewer can determine whether
the questions were effectively handled (Fowler & Mangioni, 1990; Seidman,
1991). This study supported the evidence that respondents do not mind being
tape-recorded and this does not affect the interviewer experience for them (Fowler
& Mangioni, 1990). In fact, from the respondents’ view, tape recording assured
them that their words were treated in a responsible manner (Seidman, 1991). All
respondents, especially the parents, were eager to tell their story. All respondents
asked participated in the interviews. There is a pattern o f generally positive
effects o f tape recording on the quality o f data that make it clear that it is a
valuable part o f the total design of a good survey data collection effort (Fowler &
Mangioni, 1990). Using a tape recorder reduces the tendency to make an
unconscious selection o f data favoring interviewer biases. The recording provides
a complete verbal record, and it can be studied thoroughly at a later time.
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Individuals who are trained in data analysis procedures can listen to the tape or
read the transcript and code it independently (Gall, Borg & Gall, 1996),
The main disadvantage o f tape recording an interview is that some
participants are uncomfortable being taped; especially regarding sensitive
questions, and the presence o f the tape recorder may alter responses and bias the
data. Another drawback is that tape recording does not show eye contact, facial
expressions, or body language so notes were taken during the interview to capture
non-verbal information (Rea & Parker, 1992; Gall, Borg & Gall, 1996;
Stouthamer-Loeber & Bok van Kamman, 1995).
In this study, each interview was tape-recorded and transcribed verbatim.
Interview times ranged from 15-30 minutes. Respondents answered questions
from a structured protocol consisting of 15 questions (Appendix E). The
interviews were conducted at the SELPA office located in the County Office
building or by telephone if it was not possible due to geographic distance for the
respondents to participate in a face-to-face interview. After each SELPA Director
selected the respondents, they were contacted to obtain agreement. Permission
was obtained in writing from each respondent before conducting the interviews.
Each respondent was also sent a letter stating the purpose of the interview,
confidentiality assurance, and the exact process that would occur during the
interview (Appendix D). Included with each letter was a copy of the interview
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58
questions. Prior to starting each interview, the interviewer read a prepared script
to each respondent explaining the interview procedures and expectations
(Appendix E). Assurance was given to respondents that answers would be kept
confidential and would not be used to identify them in any way. All respondents
were asked approximately fifteen questions. Most questions asked were common
to all respondents, and a few were role specific. All questions were designed to
provide information regarding the components that make ADR a successful
program. The interview protocols were created based on the review of the
literature, which identified components that must be included in a successful ADR
program.
Data Analysis and Presentation
Once the interviews were completed, the data were analyzed and reported.
The first task was making sure that all the data gathered and every question asked
was specifically related to the objectives o f the survey. The analyses used
depended on the stated objectives o f the study (Fowler, 1995; Weisberg, et al,
1996). Since survey research is usually ex post facto, generalizations to the
desired population are strictly unwarranted. Ex post facto research compares two
or more groups, after those groups have been formed. The sample may be
systematically different from the population to which one wants to generalize.
Since groups are often formed through self-selection, there are usually many
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59
differences between groups. A lot o f information can be gained by comparing the
responses o f specified groups. These types of analyses are called
“crosstabulations” (Gall, Borg & Borg, 1996; Newman & McNeil, 1998). It is
important to look at the relationship between sets of variables over time and
between groups. One way to show relationships between variables is through
visual presentation. This researcher chose to visually display data in the form of a
report, graphs, and charts (Bateman, 1984; Rea & Parker, 1992).
The interviews were tape recorded and transcribed verbatim. Seidman
(1991) warns that the researcher should avoid in-depth analysis o f the data until
all o f the interviews are completed; then study the transcripts and mark passages
o f interest. Close reading and judgment are needed to respond to meaningful
chunks o f the transcript (Seidman, 1991). This researcher chose to transcribe the
entire tape recording of each respondent. Starting with the whole, researchers
must come to the transcripts with an open attitude, seeking what surfaces as
important and o f interest from the text. Closed-form o f interview questions is
fairly straightforward. The percentage of respondents who indicated each
response option for each item was calculated (Fowler, 1995; Gall, Borg & Gall,
1996).
This researcher conducted a thorough analysis o f the data by asking
thought provoking questions about what was learned from doing the interviews,
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60
studying the transcripts, marking and labeling them, crafting profiles, and
organizing categories of excerpts (Seidman, 1991; Gubrium & Holstein, 1997).
The survey questions were developed based on successful ADR results in the
work place, community, and educational arena. Since each question in the survey
represents a component of a successful ADR program, transcribed data was
organized question by question. Once all o f the responses for each o f the
questions were transcribed, the data was analyzed looking for themes and
commonalties among sub groups in each category that correspond to the key
components o f a successful ADR program as defined by the literature review. For
example, do parents, panelists, and administrators say the same thing regarding
communication and trust? (Appendix G)
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CHAPTER IV
FINDINGS AND INTERPRETATIONS
Introduction
The purpose of this study was to identify the components necessary to
develop successful ADR programs in California SELPAS and school districts to
reduce due process special education hearings. The research was conducted on
site and via phone in three SELPAS located in California. The pilot SELPA was
located in Southern California. The three SELPAs studied were identified based
on criteria defined by research of what is necessary to have successful ADR
programs in the workplace, community, and educational settings.
Individual interviews and the administration o f a Demographics Survey
were the primary methods o f data gathering. Interviews were conducted over
nine days with three days spent in each SELPA. All respondents were involved in
at least one mediated ADR case, which reached agreement. The SELPA
Directors participated by completing a Demographic Survey and individual
interviews. In total, fifty-two interviews were conducted including parents,
administrators, and certificated personnel representing 11 mediated ADR cases.
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62
Demographic Information
Three SELPAS were selected as study participants based on set criteria, which
included:
1. Have fully implemented ADR for five years or longer.
2. Have mediated at least three ADR cases where an agreement was
reached.
3. Provide leadership in the ADR movement throughout the state by
serving as Mentors and trainers to SELPAs that wish to implement
this program.
4. SELPA Director has been trained in the ADR process.
5. SELPA Director has been directly involved from the initial planning
stages to the full implementation of ADR.
6. SELPA Director who began the program is still there.
The pilot SELPA located in Southern California provided input in refining
and adjusting the research instruments and methods. Two o f the SELPAS in the
actual study were located in Northern California and the third was located in
Central California along the coast. All three were in geographically rural areas.
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SELPA 1
SELPA one, located in Northern California, serves 2, 567 special
education students in fourteen districts including the county office. The parents
who have accessed ADR solutions panels are Caucasian, English speaking,
primarily college graduates, and fall within the low to medium income range
(Table 2). Respondents from four ADR cases were interviewed. Case one
involved delivery of services and the type of curriculum materials to be used with
the child. The focus o f cases two, three, and four was one-on-one instructional
aides, and program placement.
SELPA 2
SELPA two, located in Northern California, has a population of 9,749
special education students, which span sixteen districts plus the county office. In
this SELPA, the parents who have used ADR to resolve issues are English
speaking, college graduates. Of the families accessing ADR, 80% are Caucasian
and 20% are Asian. The economic status of the parents is high with salaries
ranging from $50,000 plus annually. Respondents from three cases were
interviewed in this SELPA. In case one, the major issues were level of service,
lack of district provision, and appropriate services. Case two involved program
issues. The parent wanted more time for the child to be seen for speech and
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64
language services. Case three dealt with the appropriateness of services for the
child who was attending a non public school.
SELPA 3
SELPA three, located in Central, Coastal California, serves 4, 313 students
in twelve districts including the county office. Parents who have utilized ADR are
Caucasian, have completed high school, and speak English only. These parents
fall within the medium salary range of $20,000 to $ 50,000 per year. Respondents
from four ADR cases were interviewed. The major issue in case one was that the
parents wanted their son to go to an outside agency to receive some training and
the district staff felt that they were providing the correct placement and teaching
methodology. The parents began paying for this agency service, then went back
to the school district and asked them to pay for the service. The district said “no”
to this request. Case two involved a physically handicapped student who had
limited motor skills. The parents wanted one-on-one instructional aide services,
transportation, and some equipment for the student. Case three involved the
parent wanting twice the speech and language services that the student was
currently receiving. Case four involved further assessment. The parent wanted
additional assessments in the social/emotional area for the student. (See Table 3
for dispute issues).
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Even though all of the respondent parents in this study were white, any
family could easily access the ADR system. All three SELPAs advertise widely
and encourage all parents of special education students to utilize the ADR
process.
TABLE 2
SELPA DEMOGRAPHIC INFORMATION
SELPA 1 SELPA 2 SELPA 3
Level of Parent High College High School
Education School/College
English Proficient English Only Fluent English English Only
Level
Ethnicity Majority White White White
Economic Status Low Medium High Medium
Looking at Tables 3 and 4, cases involving the use o f a one on one
instructional aide, tutoring, and the level of special education services were
successfully mediated since ADR implementation. In addition, issues involving
additional assessment and program placement were successfully mediated through
the ADR process. Cases involving instructional methodology such as Lovass, or
Lindamood Bell, were not successfully mediated. In some o f these cases, the
children were autistic and the parents wanted very specific programs for their
child. In SELPA 2, only one case involving reimbursement to the parents was
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66
successfully mediated. SELPA 3 was not able to successfully mediate any case
involving program reimbursement.
TABLE 3
DISPUTE ISSUES OF ALL ADR CASES MEDIATED SINCE
IMPLEMENTATION
SELPA 1 SELPA 2 SELPA 3
One on one Aide X X
Tutoring X
Reimbursement X X
Instructional
Methodology
X
Services X X X
Independent
V V
Assessment
A A
Placement X X
TABLE 4
ISSUES SUCCESSFULLY MEDIATED THROUGH ADR PROCESS
SELPA 1 SELPA 2 SELPA 3
Services X X X
Reimbursement
X
Assessment
X
One-on-one Aide
X X
Placement
X X
Tutoring
X
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The three SELPAs varied on the effectiveness of ADR in reducing due
process cases. The SELPAs differed in the increase or decrease o f due process
cases since implementing ADR. Since implementation in 1996, SELPA one has
had 4 mediations and 4 fair hearings, and none of these fair hearings were
dropped because of the success of ADR. The SELPA Director reported that in the
first year of implementation, due process cases went from 12 down to 1. The
second year cases went up, and the third year down again. Five ADR cases have
been held since implementation and none of these were reconvened to revisit
issues that were not resolved in the agreement. It was reported on the
Demographics Survey that from 1997-2001, there was a 50% decrease in due
process hearings because of the fact that staff had been trained in mediation skills.
This training has been useful in assisting staff in defusing situations before the
need for ADR or state level mediation (Table 5).
SELPA two implemented ADR in 1992, which is the longest running
ADR program in California. Since implementation, the SELPA has been involved
in 25 mediations and 9 fair hearings. Two fair hearing cases were dropped
because ADR was successful. The SELPA has held 32 ADR solutions panels
since implementation, and only one ADR case reconvened because the agreement
was not fully implemented. The SELPA Director reported a 100-150% increase
from 1996 to 1999 of due process cases due to the spike in autism. Currently, due
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process cases in this SELPA are back to the 1992-93 levels because autism
programs have improved and parents are not as demanding of a specific
methodology such as Lovaas.
SELPA three began implementing ADR in 1996, and has had 18
mediations and 2 fair hearings since implementation. State mediations have
doubled in this SELPA since implementation due to the number o f children with
autism. To add to the increase, an advocate/attorney moved to this area from Los
Angeles. SELPA three has held 11 ADR solutions panels, and have had 2 repeat
requests for a second solutions panel. Two fair hearings were filed, but dropped
because ADR was successful (Table 5).
TABLE 5
STATE LEVEL DUE PROCESS AND ADR HISTORY SINCE IMPLEMENTATION
OF ADR
SELPA 1 SELPA 2 SELPA 3
ADR Implementation Year 96-97 92-93 96-97
ADR Cases Since Implementation
5 32 11
Repeat ADR Requests
0 1 2
State Level Mediations
4 25 18
Mediations gone to Fair Hearings
4 10 2
Fair Hearings
4 9 2
According to the demograhpic survey, there were similarities among the
ADR cases mediated by all three SELPAs since implementation. The SELPA one
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Director reported on the Demographics Survey that the disabilities involved in
ADR cases were learning disabilities, autism, and emotional disturbance. The
students in these cases ranged in age from pre-school to middle school (ages 3-
12). Disabilities in SELPA two were those involving speech and language,
autism, and emotional disturbance. Students with these disabilities ranged in age
from 3 to 18 years of age. In SELPA 3, disabilities mediated included specific
learning disabilities, autism, speech and language, and mental retardation. The
ages of the students involved in these cases ranged in age from 13 to 18 years of
age. All three SELPAs mediated ADR cases involving autism and learning
disabilities (Table 6).
TABLE 6
DISABILITIES INVOLED IN ADR CASES SINCE IMPLEMENTATION
SELPA 1 SELPA 2 SELPA 3
Age of Students 0-12 0-18 13-18
Learning Disability
X X X
Autism X X X
Emotional Disturbed X
Mental Retardation X
Speech and Language X X
It was reported on the Demographics Survey that the staff primarily
involved in the ADR process in all three SELPAs was the administrators at the
SELPA or the district level. In SELPA two, the program specialists at the SELPA
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level are also involved in ADR. In SELPA one, staff spend the majority o f their
time (80%) involved in ADR rather than state level due process cases. SELPA
two staff spend more time on due process cases than ADR. SELPA three reported
that the staff spends less than 25% of their time on ADR as compared to
mediations and a very small percentage of their time on ADR as compared to fair
hearings (Table 7).
TABLE 7
STAFF INVOLVEMENT WITH ADR
SELPA 1 SELPA 2 SELPA 3
Staff involved in ADR
Process
Staff time spent on ADR as
compared to Mediation
Staff time spent on ADR as
compared to Fair Hearing
Length o f average ADR
Session
Administrators
County Panel
Members
50%
80%
2 hours
Administrators
Program Specialists
10-20%
5-10%
4 Hours
Administrators
12-25%
2%
2 Hours
Presentation o f the Data
The demographics survey and the interview questions provide the
framework for presenting the findings for this study. Key points extracted from
the survey and the interviews were used to define the components necessary for a
successful ADR program. Findings presented reflect the shared, common
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responses of the SELPA Directors, School District Administrators, solutions
panelists, and parents. The data is presented by case member title survey
questions addressing all aspects of a successful ADR program.
SELPA Director
Question 1 : What criteria do you use to select and train ADR solutions panel
members?
All three SELPA Directors stated that they recruited administrators,
teachers, service providers, and parents who are willing to give their time.
SELPA three also offers training to community members. SELPA one stated that
they “selected those parents and teachers that we had some concerns about and
gave us a little bit o f trouble because we wanted them to be involved in the
training.” New Assistant Principals and psychologists must take the training when
it is offered. Otherwise, anyone who wants the training is welcome. The SELPA
two Director stated, “Actually, we don’t do a lot o f screening. We are looking for
folks who are willing to give us their time.” The SELPA three Director shared
that the districts refer candidates who are willing to go through the training. They
are looking for parents, community members, and administrators. The Director
stated, “It is up to the districts to refer potential candidates to us.”
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Question 2: What components do you include in your ADR training?
All three SELPA Directors stated that communication, listening skills,
anger management, mediation/negotiation, and the ADR process itself were
integral parts of their trainings. The trainings used extensive role-playing
scenarios to practice using the above skills.
Question 3: How are your solutions panels configured? (District person, parent,
community member).
All three SELPAs differed on panel configurations. SELPA one has a two
panel configuration composed of an educator and a parent. This SELPA started
out with three panelists including a community member in its first year o f
implementation. SELPA two has set up three member panels to include an
administrator, parent, and the person who is a provider of special education
services. This provider could be a general education teacher, program specialist,
a speech therapist, or a special day class teacher. Like SELPA one, this SELPA
also had a person from the community sit on panels for the first few years. The
community member was eliminated because o f more confidence in the process.
SELPA three uses a three member panel to include an educator, community
member, and parent. This SELPA does not allow attorneys to be present during
the ADR process.
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Question 4: Stakeholders are defined as those key employees who are in positions
of authority to make or influence decisions for the district. What key positions do
stakeholders in your school districts hold in regard to implementing ADR?
All three SELPAs stated that Special Education Directors, and Principals
were the primary stakeholders. SELPA one further stated, “Stakeholders are
anything to do with the process.” Therefore, stakeholders included regular and
special education administrators, regular and special education teachers, and a
representative from advocacy groups such as Regional Center. SELPA two also
reported that the District Superintendents are considered stakeholders.
Question 5: How do you market ADR to the stakeholders in these school
districts?
SELPA one and three stated that they could do a better job marketing
because in many cases parents who may benefit from ADR are not getting the
information about it. The SELPA one Director shared that brochures are given to
parents at IEP meetings. A follow-up survey is also sent to parents after every IEP
meeting to obtain feedback on how the meeting went. If the parent has a concern,
the SELPA staff will call to initiate an ADR panel. SELPA two has developed
business cards, bookmarks, newsletters, flyers and packets containing information
as more extensive marketing tools. When administrators call the SELPA, ADR is
suggested as a way to solve the conflict. SELPA three markets to stakeholders by
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conducting workshops, short reviews, and quarterly meetings so that panelists can
renew their skills. This SELPA also disseminates brochures through their parent
resource network and the Community Advisory Committee (CAC) to make sure
parents get the information. This SELPA is considering adding a space for ADR
on the IEP form.
Question 6: What are the basic components in your ADR program that make it
successful?
The SELPA one Director stated that the process is very professional and
organized because the SELPA staff knows what they are doing. The SELPA
Director stated that “it feels relaxed and it doesn’t have the tension in it that the
McGeorge process has. I think people are comfortable because it does feel
relaxed.” Having a parent on the panel also is comforting to parents who use the
process. SELPA two stated that training, and commitment from the community
and school districts are the most important factors. SELPA three stated that
seasoned panelists who have been involved from the beginning of the program
lend stability and enthusiasm to the program. Also, before a panel convenes, this
SELPA staff meets with the panel members to go over techniques and strategies
as review. After the panel finishes, the process is critiqued. The SELPA Director
stated that, “every panel finds that is one of the most helpful things we do is that
we meet as a group afterwards.”
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Question 7: How does using the ADR process promote ongoing relationships
between parents and their child’s school district?
All three SELPA Directors stated that providing a format for both parties
to sit and talk, and brainstorm ideas promotes ongoing relationships between
parents and their child’s school district. Building a stronger relationship builds
the groundwork for the future in resolving conflicts at this informal level rather
than using a formal process. The SELPA three Director was surprised to discover
that many parents who chose ADR had already gone through state level mediation
and were not satisfied with that process. With the ADR process, people hugged at
the end. “There was a feeling in the air that when they left, they were friends.”
Question 8: Considering timelines, number of day and expediency, how has ADR
differed from state level mediation in scheduling and resolving cases?
All three SELPA Directors stated that ADR was much quicker than state
level mediation. Cases are convened within a one to two week period and
resolution is reached within a number of hours, rather than days as in state level
mediation. Unlike, state level mediation, the resolution is crafted with both
parties remaining in the room; so there is immediate buy in to implement the
agreement. The SELPA two Director reported, “Ninety-five percent of the cases
scheduled by McGeorge School of Law do not occur on time.”
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Question 9: To what extent do parents perceive that the ADR process is fair and
equitable?
All three SELPA Directors report that parents perceive the process as fair
(Table 8).
Question 10: Has using the ADR process changed your approach in dealing with
difficult people in general? If so, how?
All three SELPA Directors stated that using the ADR process has changed
the way they deal with difficult people. They are all highly skilled ADR trainers
who use their skills daily in dealing with staff and parents. The SELPA three
Director stated that she changed from a results oriented person to one who
allowed people to tell their story, have input, and be listened to in the process. The
SELPA one Director stated that she has become less defensive when parents
attack programs. The focus is now on resolution rather than defense. The SELPA
two Director reported that the staff members practice the communication and
mediation skills in their everyday personal lives.
Question 11: What is the primary benefit of using ADR as a way of settling
disputes regarding special education issues?
All SELPA Directors agree that the positive relationship built is the
primary benefit of using ADR as a non-adversarial process. People are sitting
down together and coming up with their own resolution. One Director stated that
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the focus remains on the child during this process. Two SELPA Directors stated
that a secondary benefit is the low cost of using ADR as compared to the high
cost of attorney’s fees.
Question 12: Do you think that ADR is an effective way to reduce due process
cases? Why or why not?
All Directors stated that ADR is an effective way to reduce due process
cases. All felt that there would be many more due process cases if we didn’t have
ADR. One Director stated that this process would not work if both parties were
entrenched in their positions.
Question 13: From your experience, which types of cases are inappropriate for a
solutions panel to mediate? Which types of cases are appropriate?
SELPA Director one stated that inappropriate cases are those where both
sides are so entrenched neither side will move. Other than entrenchment, every
other type of issue is appropriate for an ADR panel. The SELPA one Director
further stated that it doesn’t so much depend on whether cases are appropriate or
inappropriate, but that the process is appropriate for all types of cases. If people
are willing to talk and work together, then ADR is appropriate. Even legal issues
can be brought to the table and clarified.
The SELPA two Director feels that cases are appropriate if there is
willingness on both sides to focus on the child and commit to the process. Cases
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that are inappropriate are where parties exhibit an inability to calm down and be
flexible in their position sometimes spurred on by an attorney. Legal issues are
not the primary reason that cases do or do not come to ADR. If parents need to
know about the legal issues, the ADR team provides this.
The SELPA three Director stated that cases where there is a legitimate
disagreement about services or placement or assessment where families are truly
looking for ways to work things out are appropriate. Cases that are inappropriate
in this SELPA have to do with autism. “Parents are advised by their attorneys to
go directly to due process to get what they want.”
Question 14: As the SELPA Director, what is your role in assuring the success of
the ADR program in your SELPA?
All three directors stated that ADR had high priority in the SELPA. Their
roles as the SELPA leader include training, marketing, providing ADR data to
superintendents, and physical support to districts. One SELPA Director stated,
“The SELPA Director keeps everything moving in a positive way.”
Question 15: Research shows that disputants need to be assured of the neutrality
of the panelists. How does the ADR process assure disputants that the panelists
are neutral third parties?
All SELPA Directors stated that disputants are assured that ADR is a
neutral process. Panelists chosen must live outside the district of the disputants.
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Disputants are encouraged to share concerns if they feel that a panelist may not be
neutral. If necessary, that panelist will then be replaced. In some cases, SELPA
two staff utilize people from other SELPAs in order to assure neutrality. Either
the parent or the district representative can stop the process at any time if it is
perceived unfair.
Question 16: Research shows that agreements are more likely to be carried out
after mediation if both parties have input in creating the solution. How do
solutions panelists insure that disputants have input in creating a solution?
All SELPA Directors stated that the disputants are responsible for creating
the solution. It is totally theirs. The panelists only guide the process.
Question 17: Once the two disputing parties reach an agreement, what percentage
of these agreements are actually implemented in your SELPA?
SELPA one reported that 75-80% of the agreements are implemented the
way they were intended. The Intake Coordinator checks with the districts on
implementation. SELPA two stated that 100% are implemented. The Director
stated, “We have a higher percentage of ADR dispute agreements being
implemented than we do for hearing officer decisions and agreements rendered
with McGeorge mediators.” SELPA three reports that all agreements have been
implemented. A SELPA staff member follows up to make sure the agreement is
implemented.
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Question 18: Why do disputants choose ADR rather than go to mediation or fair
hearing to resolve special education issues?
Each SELPA Director had a different perspective on why disputants
choose ADR over state level due process. The SELPA one Director stated that
speed was a main factor. Cases are scheduled and resolved quickly, unlike due
process cases that may take months. People in a small community like to keep
“dirty linen” local so that issues stay within the community. The SELPA two
Director stated that it is the “common sense factor” that appeals to parents to try
ADR first. Parents are not giving up anything and there is no risk. They see the
success rate of ADR and feel that it is the first logical step in seeking a resolution.
The SELPA three Director stated, “The first couple of years, people went to
mediation first and weren’t satisfied so they then tried ADR. Over the last couple
of years, the trend has been that people who can’t afford or dislike attorneys try
ADR first.”
Question 19: Do you have anything else that you would like to add?
The SELPA one Director had no further comments. The SELPA two
Director stated, “Special Education laws have given parents an opportunity to he
heard, but this has become an attorney process that has not served California well.
Conflict is more expensive, more drawn out, and has not benefited students.” The
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SELPA three Director stated that more people should access ADR to solve
conflict rather than go on to state level due process.
Solutions Panel Members:
Question 1: What components are included in your ADR training? To what extent
did this training prepare you to be a solutions panel member?
School Personnel
Panelists in all three SELPAs stated that the training was an intensive
three to four days that totally prepared them to be a solutions panel member. The
training included numerous opportunities for role-playing, mock panels, and
practice time. One panelist stated, “We did a lot of practice throughout the
week... and I think that was very valuable.” All analyzed and critiqued the role-
plays in order to understand the process and procedures that needed to happen.
Another panelist stated, “The mock trials were helpful, but frightening because it
made you aware of how little you knew.” All panelists felt that these experiences
did prepare them for their role.
All panelists shared that two of the largest components of the training
were active listening and communication to include verbal and non-verbal body
language, and voice intonation. Panelists had a lot of opportunities to learn how
to reframe what was said and identify interests of both parties to better learn how
to handle confrontational situations. As part of the active listening component,
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panelists were not to offer solutions, but allow parties to create their own.
Additional components included in all SELPA trainings were negotiation,
mediation, and defusing anger strategies. Only two SELPAs reported that they
included legal aspects of special education in the training.
Parent
All parent panelists reported that the training was intense and high quality.
All reported that they had a lot of opportunity to practice the skills in the form of
role playing. They also stated that communication and listening were key
components in the training. One panelist shared, “You have two ears, and one
mouth so listen twice as much.” Parent panelists in all SELPAs further shared that
the training helped them recognize and deal with hidden agendas/issues that are
sometimes brought to the table. They all emphasized that the training focused on
allowing the parties to find their own solutions.
Question 2: If you were in charge of selecting ADR panel members, what would
you consider in making your selections?
School Personnel
All school personnel interviewed said that they wanted well-trained
panelists who were skilled at communicating, listening, paraphrasing, and asking
questions to get more information. They wanted the panelists to be non-biased
and put their own issues aside.
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Parent
All parent panelists stated that they wanted the panelists to have expertise
in the area being mediated. From a parent perspective, they preferred someone
who has a similar background to their child with a similar disability. Parents also
wanted the panelists to be composed of a diversity of people who were from
outside the district.
Question 3: What are the basic components in your ADR program that make it
successful?
School Personnel
The majority of panelists in all SELPAs stated that neutrality and the
casualness of the process were the basic components that made ADR successful.
Parent
The parent panelists felt that getting people to buy into the process and the
non-adversarial atmosphere were important components that made the process
successful. They felt that the process promoted a positive attitude and helped
build good team relationships. Parents were relieved to know that there was a
process that could keep them out of litigation where they didn’t have to hire an
attorney and spend money out of their pocket. They also stated that training was
important. A parent panelist pointed out that parents and school people are trained
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together so they feel more comfortable with the school people because they know
each other’s strengths.
Question 4: From your experience, which cases are inappropriate for a solutions
panel to mediate? Which cases are appropriate for a solutions panel to mediate?
School Personnel
School personnel in all SELPAs agreed that if one side or the other is not
willing to use the process, is inflexible and not willing to look at options, then the
case is inappropriate for an ADR solutions panel. Also, if the issues involve legal
guidelines or district policies such as expulsion or criminal behavior, they may
not be appropriate for a solutions panel. However, one district panelist from
SELPA three reported, “Even where the law comes into play, if underlying causes
are brought out so if you communicate with the parents, they feel heard and then
they are more willing to discuss options. So what often starts out as a legal issue,
can turn into an issue that can be resolved if the panel can uncover the issues to
get to the bottom line.” School personnel in all SELPAs also felt that
inappropriate cases were ones where the school district staff and the parent did
not get along. In some cases, the parent is extremely angry at the way they have
been treated. Cases where district representatives have not been authorized to
make decisions involving monetary matters may be inappropriate for a solutions
panel. One district panelist reported, “The parent was willing to look at options,
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but the school wasn’t and the school person that was there was not authorized to
make any decisions so she was constantly getting on the phone and calling back to
the superintendent to see what he thought about this and what he thought about
that.” Inappropriate cases were also those where the parent wanted to bring an
attorney or an advocate.
All school personnel stated that appropriate cases were where both parties
buy into the process and come into it with an open mind. All SELPA panelists
further stated that as long as the two sides are willing to mediate, almost anything
is doable. One panelist reported, “I would have to find something very severe that
would stop me from wanting to mediate and I can’t think of something...” All
SELPA panelists also agreed that placement was an appropriate issue to bring
before a solutions panel.
Parent
Parent panelists stated that inappropriate cases were those where there was
an affiliation between the disputant and the panelist. Also, inappropriate is when
the school district is not prepared to meet what the parent wants. If a school
district is far off on legal issues, the case may be inappropriate. One parent in
SELPA two reported that even if there is a legal issue, the solutions panel can still
work with underlying issues that relate to the legal issue. A legal issue shouldn’t
stop the process. This panelist felt that it was good to air issues even if legal. At
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least there is some conversation going on at a personal level. Parents also felt that
if there were unrealistic expectations, this may be inappropriate to mediate.
Parent panelists felt that appropriate cases are those that deal with program
issues, placement, and both parties are willing to use the process.
Question 5: In your experience as a solutions panelist, an agreement was
successfully reached in this case. Was this agreement implemented? If yes, why?
If no, why not?
School Personnel
Ten panelists interviewed from all SELPAs said that the agreement was
implemented. Two panelists stated that the agreement was not implemented. In
one SELPA three case, a panelist stated, “They attempted to implement it but
.. .there are some problems in the district that this is involving.. .it is kind of hung
up on technical stuff that hasn’t allowed it to come to conclusion.” Seven
panelists in all three SELPAs stated that they did not receive any feedback on
whether it was implemented or not. One panelist stated, “Unfortunately, I don’t
have any knowledge of that, although I know that we did come to an agreement
that day.” Another panelist from SELPA three reported, “We don’t ever get that
information.” Other panelists stated that they assumed that the agreement was
implemented because the panel was not called to reconvene.
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Parent
Two parent panelists in SELPA three reported that the agreement was
implemented. One parent in SELPA three reported that the first time around the
agreement was not implemented, but the second time around it was. All parent
panelists in SELPAs one and three reported that they did not receive feedback at
all. Parents also assumed that the agreement was implemented because the
solutions panel did not reconvene.
Question 6: What were the major issues in the ADR cases that you have
successfully mediated?
School Personnel
In all three SELPAs, the major issues that were successfully mediated
involved placement, assessment, and the appropriate level of services, which in
some cases means services not being implemented.
Parent
Parents in all three SELPAs also stated that major issues were appropriate
level of services and placement. In some cases, parents wanted more time in a
particular program (Table 4).
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Question 7: How does using the ADR process promote an ongoing relationship
between parents and their child’s school district?
School Personnel
SELPA one panelists stated that the ADR process opens positive lines of
communication to reach a win-win solution because people sit down and listen to
each other. Sitting down and talking in a safe, comfortable environment makes
both parties more willing to talk if another situation arises. One panelist in
SELPA two stated, “You are not in the principal’s office and I think it really gives
the opportunity for both parents and the district members to see each other in a
different light.” Another SELPA two panelist reported that this process provides a
great opportunity to see district administrators as a real person face to face
listening and respecting the parent’s point of view. Trust lost can be rebuilt again
through this process because it allows people to be understood. SELPA three
panelists also felt that the ADR process brings a better understanding between
parents and the school district. This process builds trust and fosters
communication and cooperation. One SELPA three panelist stated, ”If parents
can feel like the district is willing to listen to their interests and why they are
making the requests they are making, then maybe in the future they would be
more willing to trust the motives of the district.”
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Parent
SELPA one parent panelist stated that the process puts disputants in a
“user friendly” neutral setting and reduces some of the emotions that parents may
feel when they are in the school setting. One SELPA one panelist reported, “We
don’t bring any baggage to the table.” SELPA two parents stated that the process
opens the opportunity for dialogue between the parties. A SELPA three parent
panelist said, “It opens communication on all levels between the parents and the
district instead of closing them down when I see them going to court.”
Question 8: Research shows that disputants need to be assured of the neutrality of
the panelists. How do you assure the disputants that you are a neutral third party?
School Personnel
In SELPA one, panelists stated that if both parties believe in the process,
there is a certain amount of trust already built in. The ADR reputation for
successfully mediating panels helps with neutrality. Panelists in all three SELPAs
state at the beginning of the process that they are neutral third parties and they are
not going to provide solutions, but guide them in developing their own. A
SELPA three panelist stated, “Our role is to clarify, to help them to come to
agreement. We don’t get anything out of it, so we don’t have any favorites.”
Panelists in all SELPAs mediate cases that are not from their own district.
Panelists in SELPA one give the parents the opportunity to listen to their
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backgrounds and ask questions. Panelists in SELPAs two and three give their first
names, but don’t tell where they are from and do not identify whether they are a
district, parent, or community panelist. In SELPA three, even if parents want to
know titles, or more about panelists, they do not give this information because all
panelists are trained equally and it shouldn’t matter who does what. In SELPA
three, if the district panelist knows the disputing parent, he/she will be excused
from that panel. Panelists in all three SELPAS also tell the disputants that
everything said is confidential and panelists sign confidentiality agreements.
Some of the district panelists have special needs children and have been on both
sides of the fence. One panelist in SELPA three emphasized that just giving
disputants the opportunity to be heard creates an impartial atmosphere.
Parent
Parent panelists in SELPA one stated that living in a small community is
different because there is a likelihood that a panelist may know the disputant.
One parent stressed that even though the disputant is known, the case is not, and
listening to the facts and doing what a panelist is trained to do assures neutrality.
Parents in SELPA two explain that the process is to be taken seriously and
that all notes are destroyed in front of the parents at the conclusion of the
mediation. It helps to assure neutrality by letting the parents know that the
panelists are from another district.
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Parents in SELPA three explain the process in the beginning and treat both
sides equally. For example, if one side is given three minutes to talk, so is the
other side.
Question 9: Research shows that agreements are more likely to be carried out
after mediation if both parties have input in creating the solution. How do you
assure the disputants that they have input in creating the solution?
School Personnel
Panelists in all three SELPAs stated that the process allows for equal
dialogue by rechecking and clarifying points. Each side has an uninterrupted time
to talk. Panelists are there to help the disputants create a solution. One panelist in
SELPA one reported that suggestions were recorded on a large white board with
input from both sides. Panelists ask questions of parents to make sure that their
perspective is understood and that they have input in the agreement. A SELPA
three panelist stated, “They (panelists) probe for information and encourage both
sides to talk back and forth.” The parent has input into what is written and they
receive a copy of that agreement. A SELPA two panelist reported that it is
important to have a three or four member panel so that there are enough people to
monitor equal participation. A SELPA two panelist stated, “The parents have the
opportunity to tell their story and the district tells their story; then they cross
check with ‘this is what I heard you say.’” Panelists in SELPA three use listening
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skills that they learned in their training. If there is tension, both parties caucus
with equal time given to each disputant.
Parent
SELPA one parent panelists stated that they write ideas on a board with
agreement from both sides. They also check to make sure that both sides are
buying into the agreement. SELPA two parents shared that the panelists guide the
process so that one party does not dominate. They stop one party and let the other
one talk if one side is dominating. Another parent panelist reported that if the
process works, the parties come up with their own solution. One panelist in
SELPA three reported, “If one party has a part of a solution, the other party has to
agree to go on.” The panelists keep listening, asking open-ended questions, and
clarifying until the final agreement is completed.
Question 10: Do you think that ADR is an effective way to reduce due process
cases? Why or why not?
School Personnel
Panelists in SELPAs one and two all said that ADR was an effective way
to reduce due process cases. One reason is that so many staff are trained to defuse
situations before they get to the level of due process. If a family is vested in
going to due process, ADR would not work. Another panelist stated, “It is
effective if the agreement is carried out.” A SELPA two panelist stated that due
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process filings have been reduced. Another panelist in SELPA two reported that
ADR is a good way to avoid legal conflict. “If we can get in on the ground floor
of an issue, we can prevent fair hearings.” ADR is the lowest level where people
can sit down and talk without legal people involved.
Parent
All parent panelists interviewed felt that ADR was an effective way to
reduce due process cases. One parent in SELPA one reported, “The ADR process
is less intimidating than a formal due process hearing.” Another parent in SELPA
two stated, “This process helps take down the barriers between the parties so that
they can communicate in a neutral setting.” A parent in SELPA three stated, “It
allows the parties to talk rather than the attorneys.”
Question 11: To what extent did the parents in this case perceive that the ADR
process was fair and equitable?
School Personnel
The panelists in all SELPAs stated that the process was either “very fair”
or “fair.” No one felt that the process was “not fair at all” (Table 8).
Parents
The panelists in all SELPAs were almost equally divided as to the process
being “very fair” and “fair.” Eleven respondents said that the process was “Very
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Fair,” while eight respondents stated that the process was “Fair.” No one said that
the process was “Not Fair at all.
TABLE 8
FAIRNESS OF THE ADR PROCESS
Very Fair Fair Not Fair At All
SELPA 1
District
XX XX
Representative
Parent Disputant XX XX
District Panelist
X XXX
Parent Panelist XXXX
SELPA 2
District
XX
V
Representative
A
Parent Disputant XXX
District Panelist XXXX XXX
Parent Panelist
XXXX
SELPA 3
District
XXXX
Representative
Parent Disputant X XXX
District Panelist XXX XXX
Parent Panelist XXXX
Question 12: How has being trained in the ADR process changed your approach
in dealing with difficult people in general?
School Personnel
A panelist is SELPA one reported that being trained in ADR helped to
prevent getting caught up in the anger of the parent. Another panelist shared that
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it caused her to be a better listener and problem solver. A panelist in SELPA two
who has a psychologist background stated that even though she already learned
these skills while studying to be a psychologist, she learned that, “You let the
victim tell you their whole story.” Another district panelist in SELPA two stated,
“It is easier to imagine herself in the parents’ shoes.” Looking at the physical
room arrangement to create a comfortable environment is also important. Also,
this panelist has benefited personally by not getting angry quickly with consumer
issues. One panelist is SELPA two stated that it works with your businesses, and
family members. “It’s a life long and a whole approach to living.” District
panelists in SELPA two stated that generally this process helps one to
communicate more effectively with anyone in personal or professional life. Three
district panelists from SELPA three stated that the ADR training has improved
listening and looking at both sides of an issue more objectively to avoid jumping
to conclusions. One panelist stated that these skills come naturally. All panelists
stressed that the training emphasized the importance of listening and not jumping
in to solve the problem.
Parent
All parent panelists interviewed reported that these skills have benefited
them personally in dealing with family members. They have become better
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listeners and more willing to stay neutral. One panelist in SELPA two stated,
“The training brought more awareness of what one brings to a situation.”
Question 13: What is the primary benefit of using ADR as a way of settling
disputes regarding special education issues?
School Personnel
All panelists interviewed stated that cost effectiveness was a primary
benefit in using ADR. In addition, all panelists stated that building relationships
and trust with parents was a primary benefit to using the process. Panelists in
SELPA one shared that customer satisfaction was also a benefit of using ADR.
Panelists in SELPA two reported that good communication, a relaxed
environment, and the speed of the process were also benefits to using ADR.
While panelists in SELPA three felt that good communication, obtaining a
solution at the local level, and that the student is the winner are additional benefits
of using the process. A district panelist from SELPA one stated, “The key to this
is that we are saying from the get go ‘let’s work together’ and ‘no’ we are not
always going to agree but we can have a relationship where we can sit down and
talk about what we don’t agree about...”
Parent
Parent panelists in all three SELPAs stated that cost effectiveness was the
primary benefit of using ADR. SELPA two parents reported that good
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communication was a benefit as well. Panelists in SELPA three reported that
good communication, avoiding state level due process, and that everyone feels
like a winner are benefits of using this process, also. A parent panelist in SELPA
one stated, “There is nothing worse than having a child damaged in the hostility
of the parent and the school.”
Question 14: In terms of efficiency, number of day, and speed, how quickly was
this case scheduled and resolved once the decision was made to use the ADR
process?
School Personnel
SELPA one panelists stated that panels are convened within one to two
weeks and typically last for four hours at a time. SELPA two panelists reported
that cases are heard within a couple of weeks. This SELPA has had cases that
took up to four weeks due to scheduling conflicts. SELPA three panelists stated
that the majority of cases are convened within two to three weeks.
Parent
SELPA one parents stated that solutions panels were usually set up within
five to ten days. SELPA two parents reported that cases were set up within a
week. SELPA three cases were organized and convened within one to two weeks.
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Question 15: What is the benefit to disputants to choose ADR rather than state
level mediation or fair hearing to resolve special education issues?
School Personnel
Panelists is SELPA one stated that because this is a small community and
everyone has to live together, it is better to try to get along and solve issues within
the community rather than at the state level. Panelists in this SELPA also felt that
ADR was a fair process. SELPA two panelists agreed that it is better to resolve
issues at the lower level. Disputants face each other the entire time rather than the
two parties remaining in separate rooms. SELPA two and three panelists report
that it is quicker and more satisfying at the local level. They also state that in state
level mediations, there is a winner and a loser. With ADR, it is a win-win. ADR
is also less costly than state level due process. With mediations and fair hearings,
attorneys’ fees enter into the settlement. Panelists from SELPA three agree that
disputants have more control over the agreement in ADR than in state level
mediation. Once lawyers are involved, parties do not talk to each other because
the lawyers speak for the parents. One panelist in SELPA two stated, “I’ve been
in mediation where it takes all day, two days and these processes say they are
supposed to be two or three hours. But if we can meet for three or four hours and
resolve the issue and have something tangible to leave with, it’s much faster and
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both parties seem to be pretty happy with it. If they weren’t happy, we would
keep talking.”
Parent
Parent panelists in SELPA one and two agree that the timeliness of ADR
is preferable to state level mediation. The ADR process is also less stressful than
state level mediation. With the ADR process, disputants take ownership for their
solution as opposed to being told by mediators or attorneys this is what is going to
happen. The ADR process is less formal without attorneys, which puts more
focus on the child. A parent in SELPA three stated, “If a solution could be found
in ADR, you would have better communication than trying to communicate
between lawyers because I think lawyers try to separate the parties so that they
can solve the problem and a lot of times it makes it very difficult after the cases
that are won or lost to enter back into the district with all the animosity so whether
you win or lose in a due process situation there is one of the parties who always
lost and it makes it very difficult to enter the next day at school so I think
communication is the key.”
Question 16: Do you have anything else you would like to add?
School Personnel
A district panelist in SELPA two thought that perhaps districts should
have a parent liaison to work with parents to help bring more cases to ADR rather
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than state level due process. All district panelists were sold on the process and
wanted to get the word out more. Some of the panelists shared their frustration in
not getting more people to use this process. One panelist in SELPA two was
hopeful that attorneys might steer the parents back to the district to try ADR
before taking the case to state level due process. One SELPA three panelist
would like to see more people trained even if they don’t sit on panels. Another
SELPA three panelist would like to hear about the follow through on agreements.
“We don’t actually hear anything and it would be nice to hear that things were
implemented and they were successful or no they weren’t.”
Parent
All parent panelists were also sold on ADR, and wanted to let more
parents know that ADR was available as a first step before state level due process.
Also, parent panelists in SELPA three would like to see more people trained in
the ADR process.
Disputants:
Question 1: What made you choose the ADR process rather than go to mediation
or a fair hearing to resolve your special education issues in this case?
District Representative
SELPA one district representatives stated that the process was friendlier,
could be done at a local level, and was quicker and cheaper. A district
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representative from SELPA one stated, “I felt that it would probably result in a
less adversarial relationship between the parent and the district.” A SELPA two
representative stated that in one case the district felt the dispute was perfect for
ADR. In another case, the parent requested the ADR model. SELPA three district
representatives also felt that the ADR model was the best one to solve the dispute.
Parents in three of the cases in SELPA three were willing to try the process first.
Parent
SELPA one parents reported that they wanted to try to solve the issues
before going to state level mediation. They saw this as the first step to resolving
their differences. One parent stated that she didn’t believe ADR would work, but
if it didn’t, it would look more favorable for her in the hearing officers eyes at a
fair hearing. SELPA two parents all wanted to try to resolve their disputes at the
local level first rather than go on to more costly due process. SELPA three
parents had a variety of reasons for choosing ADR. One said her husband asked
her to do it. The other parents wanted to try the path of least resistance and the
least cost first.
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Question 2: How did using the ADR process in this case promote a positive
relationship between the parent and your school district?
District Representative
SELPA one and two district representatives stated that the informal ADR
process allowed them to sit face to face and talk to the parents. The parents
realized the district was working to gain the family’s trust. A SELPA two district
representative stated, “The parent had an opportunity in a sheltered process to
express concerns without interruption, without comment, without debate...” In
SELPA three, three district representatives reported that the relationship with the
parent was not positive before ADR and going through the process did not
promote a positive relationship either. “We still continue to have issues.” Only
one district representative in SELPA three reported that ADR promoted a positive
relationship because the parents felt heard and got the outcome they wanted.
Parent
Two parents in SELPA one already had a positive relationship with the
school district and that didn’t change during the process. Another parent said
there wasn’t a positive relationship with the school district at all. Still another
parent in SELPA one reported that the process did not build a more positive
relationship with the school district. All three cases in SELPA two reported that
the ADR process did not promote a more positive relationship. Two of the three
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parents interviewed stated that they did not have a good relationship with the
district. One parent reported the relationship as “Kind of medium” before the
ADR process. In SELPA three, all parents interviewed stated that the process did
not promote a more positive relationship. Two of the three did not have a positive
relationship prior to going through the ADR process. One parent did have a
positive relationship already with the district and that did not change.
Question 3:In your experience as a disputant, an agreement was reached. Was
this agreement implemented? If yes, why? If no, why not?
District Representative
All district representatives in SELPA one reported that the agreements
were implemented. One district representative stated, “Both parties agreed and
integrated the agreement into the IEP.” All district representatives in SELPA two
and three said that the agreements were implemented.
Parent
SELPA one parents reported that one agreement was partially
implemented, two were fully implemented, and one was not implemented at all.
All three parents in SELPA two said that the agreement was not implemented. All
three parents in SELPA three reported that their agreements were implemented.
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Question 4: Research shows that agreements are more likely to be carried out
after mediation if both parties have input in creating the solution. How did the
panelists on this case enable you to have input in creating the solution?
District Representative
SELPA one and two representatives stated that ideas were sought by
panelists. The ADR process itself allowed the communication necessary to see
each other’s point of view. A SELPA two representative stated, “There was a
process where it was kind of facilitated by the panel members.” A SELPA three
district representative stated that the panelists listened and took notes and guided
the disputants in creating an agreement.
Parent
Two SELPA one parents stated that everyone had a chance to tell their
side of the story and both sides had input in the solution. The other two parents in
SELPA one reported that in their case, they went into ADR mediation with a list
of what they wanted and they expected to get what was on the list from the district
with no negotiation. One parent stated, “I went in with a written. I guess a plan of
what my son needed.” Another parent in SELPA one stated, “Actually, they (the
district) did not have any input at all because what I had done because of the
severity of how I felt they were treating my child, I had removed him from the
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school, placed him in a special education school and then requested that they pay
for it.. .Basically, I just got my way.”
In all three cases in SELPA two, both parties presented information.
“There was give and take on both sides.” All parents in SELPA three stated that
they had a voice in creating the solution.
Question 5: In terms of efficiency, number of days, and speed, how quickly was
your case scheduled and resolved once you decided to use the ADR process?
District Representative
District representatives in SELPA one stated that the process happened
very quickly, within a few weeks. One district representative reported that the
conflict was resolved in a two hour ADR meeting. SELPA two district
representatives reported that the process happened within two to four weeks. One
district representative in SELPA two reported that it took five hours to reach an
agreement with the ADR solutions panel. SELPA three district representatives
stated that panels are held anywhere from one to three weeks once the panelists
were scheduled.
Parent
SELPA one parents reported that the solutions panel was scheduled within
a couple of weeks. SELPA two parents also stated that the ADR panels were
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scheduled within two to four weeks of the decision to use the process. SELPA
three parents said that the panels were scheduled in less than a month.
Question 6: What is the primary benefit of using ADR as a way of settling
disputes regarding special education issues?
District Representative
SELPA one and two reported that the ADR process is friendlier, less
formal, and operates at the local level. A district panelist in SELPA one reported,
“ I think the SELPA has a reputation which helps the process because we have
trust in the process.” A SELPA three district representative stated that the local
process is less formal and less threatening than due process. Another benefit that
SELPA one and two district representatives saw was that using the ADR process
promotes more positive relationships between parents and district staff. A
SELPA two district representative further stated that the process sets the stage for
a good working relationship down the road.
Parent
Parents in SELPA one felt that the ADR process offered a better chance to
communicate feelings, and it is a good way to find out what the district’s position
will be. It is a good first try to keep out of the courts. Parents in SELPA two
stated that this process focused on the benefits for the child. They felt that the
process was quicker, less stressful, and friendly. Parents in SELPA three stated
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that ADR helps the parent understand the schools position of what they will and
won’t do. One parent stated that the purpose of ADR was, “To get the school to
provide the services that we felt that he needs.” Another parent felt that it put
parents on an equal level with the district, which makes it easier to come to an
agreement.
Question 7: To what extent do you perceive that the ADR process is fair and
equitable? Is it Very Fair Fair Not Fair at all?
District Representative
The majority of district representatives in all three SELPAs thought that
ADR was “very fair.” Only two district representatives in SELPA one reported
that the process was “fair” (Table 8).
Parent
Six of the parents in all three SELPAs thought that the ADR process was
“very fair.” Five of the parents in all of the SELPAs stated that the process “fair.”
The parents were evenly split in SELPA one on whether the process was “very
fair,” or “fair.” All parents in SELPA two thought that the process was “very
fair.” Three out of four parents in SELPA three thought that ADR was “fair.”
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Question 8: Do you think that ADR is an effective way to reduce due process
cases? Why? Or Why not?
District Representative
All district representatives interviewed felt that ADR is an effective way
to reduce due process cases. SELPA one district representatives stated there is
more opportunity to communicate, and reach a win-win resolution. The process is
less expensive and it stays at the local level. In some SELPA two districts where
parents are more affluent, attorneys are an integral part of a family’s’ life and are
automatically used to go to due process litigation. One district representative
stated, “It gets to a written agreement quicker.” Another district representative
stated, “They have to be willing to compromise or come to consensus.” It is
effective because local people are involved who are familiar with community
resources and it is cost effective.
Parent
All parents in SELPA one and three stated that ADR is an effective way to
reduce due process cases. Parents in SELPA one reported that ADR is effective
because parents are heard and panelists do not have biased opinions. One SELPA
one parent stated, “It got resolved real easy and I think it helps to have a good
attitude coming in.” Another SELPA one parent stated, “I think they (the district)
could be if they are willing to give a little to the parents.” All parents in SELPA
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two said that ADR was effective as long as both parties are willing to reach a
solution, and the agreement is implemented. SELPA three parents stated that both
sides must come to the panel with an open mind and no pre-conceived ideas. One
parent in SELPA three regretted starting there and said, “The case should have
been taken directly to mediation but at the time they (the family) was too stressed
out to do this.”
Question 9: Research shows that disputants need to be assured of the neutrality of
the panelists. As a disputant, how were you assured that the panelists were
neutral third parties?
District Representative
All district representatives in SELPA one stated that the panelists
introduced themselves in the beginning, and did not take sides during the process.
The panelists were also from outside the district, which helped to assure that there
was no conflict of interest. SELPA two district representatives shared that the
panelists followed the process and the guidelines for being a panelist. They
described their backgrounds and stated that they were not from the disputing
school district. In one case, the parent had a consultant who talked for the parent
and in the district representative’s opinion, tipped the neutrality scale because
both sides did not have equal time to be heard in the case. District
Representatives in SELPA three reported that they assumed that the panelists
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would be neutral. Some of the panelists had good reputations as mediators and
that was reassuring to the district representatives in SELPA three.
Parent
One parent in SELPA one asked the panelists questions about their
background. Another knew of their “quality” reputations and felt comfortable.
Another parent in SELPA one felt that the parent panelist was not representing
her and that the panelists were not neutral. SELPA two parents stated that the
panel members were neutral because they were from outside the district. When a
SELPA two parent walked into the ADR mediation, the atmosphere was positive.
SELPA three parents reported that the panelists gave each side equal time to
speak, and the panelists were not connected to the school district. The panelists
introduced themselves and gave their job titles in SELPA three.
Question 10: What was the major issue in this case that was successfully mediated
by a solutions panel?
District Representative
SELPA one district representatives reported that one on one instructional
aides, placement and additional services were the major issues in the ADR cases
that were successfully mediated. SELPA two representatives stated that
assessment, level of service, IEP implementation, and Occupational Therapy
services were the major issues in successfully mediated ADR cases. District
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representatives in SELPA three reported that major issues were one on one
instructional aide, speech and language services, and private vendor service
providers.
Parent
Parents in SELPA one reported that major issues were provision of a one
on one instructional aide in the general education classroom, placement, and level
of program (specifically Lindamood Bell). SELPA two parents reported that
major issues in their cases were assessment, level of services and Occupational
Therapy services. Parents in SELPA three stated that services, one on one
instructional aide, and speech and language therapy were major issues in their
ADR cases (Table 4).
Question 11: From your experience, which types of cases are appropriate for a
solutions panel to mediate? Which types of cases are inappropriate?
District Representative
SELPA one representatives stated that one on one instructional aides, and
program issues were appropriate cases to mediate. One district representative
reported that all types of issues would be appropriate because there is nothing to
lose at this level so it is worth a try. Even with policy and law, some issues may
be able to be resolved. Inappropriate cases according to SELPA one district
representatives would be those that are at a point where neither side will give.
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SELPA two district representatives felt that issues dealing with level of service
and one-on-one instructional aides would be appropriate cases for ADR. SELPA
two district representatives stated that placement involving a Non-public school
(NPS), or parent only wants one placement or service, and is not willing to give at
all are not appropriate. One SELPA two district representative stated, “...if they
(parent) are locked on to the only thing that is going to work is a one on one
assistant or occupational therapy.. .and the district is saying no, those would be
the kinds of things that wouldn’t be settled in ADR...” SELPA three
representatives stated that appropriate cases would be where there was a
disagreement at an IEP meeting and issues needed to be resolved to complete the
IEP. All district representatives in SELPA three felt that any case is appropriate
as long as both parties are willing and open to dialogue. Inappropriate cases were
those involving attorneys, and families entrenched in what they want.
Parent
Parents in SELPA one reported that appropriate issues for ADR were
those involving behavior problems, placement, when two parties are fairly close
in agreement already, and additional services. A SELPA one parent also said that
even when the law is involved, the ADR process may still be used. One parent in
SELPA one stated, “If it actually came down to the law part of it ...I would say
no, but I would never discourage anyone from using it because you never know
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how well someone can place an argument.” Appropriate cases in SELPA two
were those where there were one or two issues that are clearly drawn. Two
SELPA two parents thought that all cases can be mediated through ADR if both
sides are willing to follow through and there is district accountability. In SELPA
two, parents reported that those cases where there were several issues to mediate
were not appropriate for ADR. SELPA three parents thought that speech and
language services were appropriate for ADR mediation. These parents also
thought that all cases were appropriate if people were willing to sit down together
and work out a plan. One parent in SELPA three stated, “Even if it is a behavioral
problem, if people could sit down and work out a plan that would be good for the
child, I think that would be a benefit.”
Question 12: What is it about the ADR program in your SELPA that make it
successful?
District Representative
SELPA one district representatives reported the success of the ADR
program has to do with the fact that the panelists are well trained, knowledgeable,
and respected throughout the county. SELPA two representatives stated that
their program is successful because of the way the program is presented to the
parents as an option to due process. The program is presented to parents by the
SELPA administrator and a parent liaison. This seems to encourage parents to
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access ADR. Another SELPA two district representative stated that it is a
healthy, win-win process and that is what makes ADR successful.
SELPA three district representatives stated that the training that people
receive is critical to the success of the ADR process. One district representative
stated, “.. .from what I saw of the panelists, that was certainly something that was
valuable to them and they in turn can impart that upon the people that go there as
participants.” A district representative from SELPA three also pointed out that
coordination and leadership at the SELPA level was important to the success of
the program. Also, this process occurs at the local level where the parties
involved are aware of the resources available in the community.
Parent
In SELPA one, parents stated that ADR brings both sides together and
brings all issues to light. A SELPA one parent stated that the speed of the process
is what attracted her to the idea. Keeping the child’s interest at heart is what
appealed to another SELPA one parent. Also, the fact that the process is available
at the local level makes it attractive to parents. One SELPA two parent
commented, “I don’t know if it is successful.” Another parent in SELPA two
reported that the process itself makes it very successful. Parents in SELPA three
stated that the opportunity to reach an agreement at the local level and the fact
that the panelists listened to both sides makes the ADR process successful.
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Question 13: Would you use this process again if you had a dispute regarding
special education?
District Representative
All district representatives in SELPA one and two said that they would use
the ADR process again. Two district representatives in SELPA three said they
would not use the process again, and the other two said they would use the
process again.
Parent
All parents in SELPA one said that they would use the process again.
Two of the parents from SELPA two said that they did not trust the district and
would not use the process again. One SELPA two parent said, “I would consider
it.” In SELPA three, only one parent would use the process again. The other two
said probably not because of the school administration and an unhappy experience
at their last ADR mediation.
Question 14: Has going through the ADR process changed your approach in
dealing with difficult people in general? If so, how?
District Representative
All SELPA one district representatives stated that they already had a
background in these skills and were already using the skills learned in ADR
training. District representatives in SELPA two said that going through the ADR
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process had changed the way they dealt with difficult people. Basically, they said
they had a good background in effective mediation prior to going through the
process, so experience only enhanced skills they already had acquired. SELPA
three district representatives reported that going through the ADR process did not
change their approach in dealing with difficult people. Rather it confirmed what
they already knew.
Parent
All of the parents in SELPA one reported that going through the process
did not change their approach in dealing with difficult people. Parents in SELPA
two stated that to varying degrees, the ADR process did change the way they
approach difficult people. One parent reported that it has been successfully used
in dealing with family members. In SELPA three, two parents said that going
through the ADR process did not change their approach and one parent said that it
did.
Question 15: Do you have anything else you would like to add?
District Representative
SELPA one district representatives reported that the ADR process is great
and more counties should use the process. SELPA two representatives stated that
it is important to have someone on the panel familiar with the law. SELPA three
district representatives stated that families who have attorneys and have gone
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through state level due process do not access ADR. All district representatives in
SELPA three stated that it is an excellent program and more families should use
it.
Parent
SELPA one parents feel that teachers should be willing to learn new
techniques to teach students. One SELPA one parent stated, “If they (teachers)
were more flexible, I probably wouldn’t have been in this ADR anyways.” One
parent in SELPA two stated, “I wish there was a way for the SELPA to make the
district accountable.”
Interpretations and Discussion
After interviewing administrators, panelists, and disputants, expected and
unexpected themes have emerged as outlined in the research of the components
required of a successful ADR program in the workplace, community, and the
educational setting. The themes that have been identified in this chapter address
three of the four research questions asked in this dissertation.
A very strong theme that emerged in this study was the importance of training
for solutions panelists. All SELPA Directors, solutions panelists, and district
representatives strongly emphasized that in-depth training must be an integral part
of a successful ADR program. All three SELPAs provide an extensive, ongoing
training program to prepare solutions panelists. District and parent panelists alike
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felt that the training prepared them to be solutions panelists. These respondents
reported that the strongest feature of the training was the opportunity to engage in
numerous role- play scenarios. Opportunities to practice boosted the panelists’
confidence when they served on their first ADR solutions panel.
The SELPA Directors and panelists reported that the trainings thoroughly
prepared the panelists to guide the disputants in finding their own solutions by
laying out the format, and being good listeners. All SELPA Directors and
solutions panelists expressed the importance of developing good communication
and listening skills. Parent panelists were impressed with the quality of the
SELPA trainings. They described them as extensive, and very thorough.
Another common theme that emerged identified neutrality as a key ingredient
in a successful ADR program. Disputants in ten out of eleven ADR cases felt
comfortable with the panelists, and felt that they were neutral third parties. The
SELPA Directors and the panelists interviewed stated that the process itself and
the extensive training insures neutrality. In all SELPAs, the ADR panelists were
from outside the disputing district, which was a key factor according to the
disputants in establishing a neutral setting. Even though some of the parent
disputants knew a panelist, this did not impede the ADR process. The parent felt
that even though the panelist was known from the community, he/she was still
from outside the district and did not know of the case beforehand. In all SELPAs,
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at the beginning of the ADR process, the panelists introduced themselves and
gave the parents and district representatives an opportunity to ask questions. If a
conflict of interest was identified, the panelist was replaced. All disputants were
assured of confidentiality and notes were destroyed at the end of the meeting.
A surprising theme that emerged was that most parents said that going
through the ADR process did not build a more positive relationship with the
district. If the parent already had a good relationship with the district, it remained
as such, but was not improved. One SELPA one parent reported, “I don’t know
that it created a more positive atmosphere at all. I have always had a positive
relationship with our district. I have always liked them and understood where we
were coming from. We just had a difference of opinion and we needed to take
that next step.” If the parent had a negative relationship with the district, going
through the process intensified the lack of trust because the district didn’t follow
through on the agreement. A SELPA two parent stated, “Well, actually it (the
ADR process) hasn’t because even though we came to an agreement, the school
district didn’t follow through with their part of the agreement.”
Research question 1, “How do parents and school personnel define the
success of ADR and is there consensus on the definition of success?” is addressed
within the context of this theme. The researcher defined success as reaching
consensus by developing a written agreement. Parent disputants defined
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“success” as implementation of that agreement. All district representatives
reported that the process was successful and that all agreements were
implemented. Half of the parents in all SELPAs said that the agreements were
not implemented.
Solutions panel members did not know whether an agreement was
implemented. In some cases, panelists knew the agreement wasn’t implemented
because the solutions panel reconvened to further resolve issues from the first
mediation. Otherwise, panelists did not receive feedback regarding a case. The
Director in SELPA one stated that 80% of the agreements were implemented.
The Directors in SELPAs two and three stated that 100% of the agreements were
implemented. The SELPA two Director stated, “One hundred percent. We have a
higher percentage of ADR dispute agreements being implemented than we do for
hearing officer decisions and agreements rendered with McGeorge mediators.”
The SELPA three Director reported, “They have all been implemented.” From the
above comments, parents and district personnel have differing perceptions
regarding the definition of the success of an ADR agreement.
Another unexpected theme that surfaced from this study was that the
majority of the solutions panelists and SELPA Directors interviewed stated that
almost all cases were appropriate for an ADR solutions panel, even those
involving legal issues. Respondents interviewed explained that just meeting
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allows underlying issues to surface and be resolved. The consensus was that as
long as both sides were willing, any case could be mediated.
A more expected theme that arose was that cases where communication is
the heart of the problem are appropriate for ADR solutions panels. All
respondents interviewed agreed that if attorneys or advocates are already
involved, the case is not appropriate for ADR. Also, if either side appears to be
inflexible, the case would not be appropriate.
Another theme that surfaced was the expediency of convening an ADR
solutions panel. All participants interviewed were very impressed with the
expediency of the process. Those interviewed thought that cases were set up and
held within one to two weeks and were resolved within a four to five hour time
frame. The SELPA one Director reported that the speed of the process was one
major reason why parents chose ADR. “It happens relatively quickly. When
parents are frustrated.. .they want it to happen now. Going through the McGeorge
process could take quite some time.”
The issue of “fairness” emerged as a major theme in this study. All
respondents interviewed felt that ADR was “fair” or “very fair.” The data
gathered to uncover this theme answers research question number 3, “To what
extent do participants (parents and school personnel) perceive that ADR is a fair
and impartial way of resolving special education disputes at the district level?”
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Over half of all respondents thought that the process was “very fair.” The
remainder of the respondents thought that the process was only “fair.” No one
interviewed thought that the process was “Not fair at all.” In SELPA one, two out
of four parents and two out of four district representatives said that the process
was “very fair.” Two out of four parents and two out of four district
representatives said the process was” fair” All parents in SELPA two said that the
process was “very fair.” Two district representatives in SELPA two said that the
process was “very fair.” One representative said that the process was “fair.”
However, all parents in SELPA three said that the process was only “fair.” All
district representatives in SELPA three said that the process was “very fair”
(Table 8).
Another surprising theme that emerged was that all SELPAs reported that
the implementation of ADR did not reduce litigation costs. Research question 4
asks, “Does the implementation of the ADR process reduce litigation costs for
school districts and parents?” Even though costs were not reduced, all SELPA
Directors felt that ADR has the potential to reduce due process litigation costs.
The SELPA one Director stated, “We would have so many more (cases) going
through due process if we didn’t have this system (ADR) in place.” A SELPA one
District panelist stated, “I think we are not seeing many solutions panels nor are
we seeing many due process filings and this year we haven’t seen that many
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mediations either.. .Ours are staying at a fairly low level and I think it’s because
people are resolving the issues at a much lower level.” Even though ADR has
reduced the need for due process hearings, if a SELPA is involved in a lengthy
law-suit, litigation costs can be very high. On the demographics survey, SELPA
one reported that two districts currently have appeals in federal court, which has
kept attorney’s fees very high.
SELPA two did not report any information on the demographics survey
because the SELPA’s accounting code structure has not, until this year, separated
special education attorney’s fees from the total district legal costs (See Table 9).
This is the first year (2001-2002) that the CDE has required SELPAs to report
ADR data for the state’s management information accountability system (CDE,
2001). A SELPA two administrative panelist stated, “I don’t think our data has
shown that, but anecdotally, I think it definitely has. ..On cases where we can get
it on the ground floor, we have been able to keep from going to fair hearing.. .In
1998, we had 36 due process filings and it had escalated over the years, about 11
the first year and it has gone down since then. We’ve only had six filings this
year.” Another district panelist stated that the hope was that ADR would reduce
litigation costs. A district panelist reported, “We just recently in our district
presented some of the results (of ADR).. .to our board.. .by the person in charge
of conflict mediation for our district.. .He was able to show statistically a
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significant drop in due process litigation.. .since we have put in place a mediation
process in our district. It was down about 30-40%.”
SELPA three reported on the demographics survey that ADR has not
reduced litigation costs. The SELPA Director reported that even though there
wasn’t a reduction in legal costs, ADR is an effective way to try to reduce them.
“I think there are some situations in which its (ADR) not going to work.. .you
shouldn’t even waste your time on it.” A district panelist stated that ADR is a way
to reduce litigation costs because it avoids attorney fees. Litigation costs have
risen in this SELPA because parent advocacy groups have recently moved to the
area.
TABLE 9
REDUCTION OF ATTORNEY FEES SINCE ADR IMPLEMENTATION
SELPA 1 SELPA 2 SELPA 3
Reduced Attorney's **NO *NO NO
Fees since ADR
implementation
* Until this year, attorney's fees for Special Education were not separated out from the
district legal costs. This data will be collected in 2001-02.
** Two districts currently have appeals in Federal Court, which has kept attorney fees
very high.________________________________________________________________
Summary
In this chapter, findings for three of the four research questions were
presented. Data from the demographics survey and individual interviews were
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synthesized and reported to address the research questions regarding components
necessary to develop a successful ADR program in a SELPA or school district in
the state of California. The research question addressing components that must be
in a successful ADR program will be reported and synthesized in chapter five.
The analysis presented in this chapter was the basis for the summary of findings,
conclusions, and recommendations detailed in chapter five.
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CHAPTER V
SUMMARY OF FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS
Introduction
Chapter V presents a summary of this research study. Findings
extrapolated from the data gathered will be discussed. Conclusions,
recommendations, and suggestions will be offered for further study.
Findings
The summary of findings for this study is based on the four research
questions posed, the areas synthesized from the literature, and the interview
surveys. Three of the four research questions were addressed in chapter four.
Research question two remains to be addressed in this chapter. This question
addresses the issue of components necessary for a successful ADR program by
asking, “What are the components of a successful ADR program as identified by
parents and school personnel?” Several important points emerged to answer this
question from the data gathered.
1. The SELPA Directors in this study are highly trained in ADR, and are
the primary trainers of solutions panelists and intake coordinators. All
directors have spearheaded the ADR program in their SELPA, and
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continue to be viewed as leaders involved in the process throughout
the SELPA member districts.
2. A strong belief surfaced from all respondents that cases involving the
law might still be successfully mediated through the ADR process.
Although the law cannot be changed, major issues can still be
addressed, clarified, and agreed upon as long as people are willing to
talk and work together. Cases are inappropriate where there is no
flexibility or willingness to look at options, one side or the other is
entrenched in a position, or an attorney is involved. Cases are
appropriate when both sides buy into the process, come in with an
open mind, and have a willingness to focus on the child.
3. Parents defined success in terms of an agreement being developed and
implemented. Half of the parent disputants perceived that their case
was successfully mediated because the agreement was implemented
by the school district. The SELPA Directors and school district
disputants felt that all of the agreements were implemented. Parents
wanted assurance that there will be district accountability.
4. Even though agreements were reached in the cases for this study,
most of the parent disputants felt that the ADR process did not
promote a more positive relationship between them and the school
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district. If a parent already had a positive relationship, it remained the
same. If a parent had a negative relationship prior to ADR, It did not
create a more positive relationship. The district and parent panelists
felt that the process did promote a more positive relationship.
5. Parents were relieved to use a more casual, less stressful process
rather than state level due process. They wanted to keep issues at the
local level as close to their community as possible. Even parents who
didn’t feel that the solutions panel experience was the most successful
were glad that this step was available before going to due process, in
which case, they would have to hire an attorney and spend a large sum
of money.
6. In SELPA three, in some cases there was more success with A D R if
the parents had already gone through state level mediation or fair
hearing. This was especially true when ADR was in its early stages of
implementation. Parents agreed to try ADR because they were still
searching for a sense of satisfaction that they did not experience
having gone through state level due process.
7. There were cases where the parent and the district representative did
not truly buy into the process, but had ulterior motives for using ADR.
In the case of one parent, ADR was used as a tool to assist in winning
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at the state level. The parent felt that the hearing officer would look
more favorably at the case if an effort were made to solve issues at the
local level first. In another case, the district representative did not
truly buy into the process, but was going through the motions in
response to pressure from the district superintendent to reduce due
process cases.
8. All respondents thought that ADR was a good way to reduce due
process cases, but they have not consistently decreased according to
the SELPA Director interviews, and the demographics questionnaire
responses.
9. All SELPAs emphasize the importance of parents being part of the
ADR process. Parents of disabled students are recruited and trained
to be part of an ADR panel. Parent disputants feel more comfortable
knowing that a parent of a special needs child is part of the panel.
10. All SELPAs train parent, district, and community panelists together.
Parent panelists felt that this training format put all panelists on an
equal footing.
11. Agencies such as Mental Health, Inland Regional Center, and
California Children’s Services are included in the trainings since these
agencies work closely with parents of special education students.
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12. All SELPAs offer a great deal of support to their districts by
conducting initial and review trainings, assisting with marketing, and
organizing the actual solutions panels.
13. Two of the three SELPAs reported that they included legal aspects of
special education in their training.
14. Parents and school personnel report that ADR is successful because of
the casual, neutral and non-adversarial atmosphere of the process.
15. It is vital to the success of ADR to have a strong commitment from
the SELPA Director to the program. All three Directors stated that
ADR had high priority in the SELPA.
16. The ADR process runs more smoothly without attorneys and
advocates.
17. The majority of the respondents felt that ADR should be used more,
and that improved marketing to the parents was a key in increasing
the use of the process.
18. To insure neutrality, panelists came from outside the disputing
district. Parent disputants also wanted panelists to have expertise in
the area being mediated. Panelists also needed to be familiar with the
law.
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19. In all SELPAs, cases that were successfully mediated involved
placement, assessment, and the level and implementation of services.
20. All school personnel benefited professionally and personally from the
skills learned in the ADR trainings. Only a few of the parents gained
insight through this process in dealing with difficult people.
21. Consensus from all respondents as to what makes ADR a success are:
® Excellent reputation of the panelists
• Parent liaison to encourage parents to give ADR a try
• Win-win process
• Excellent training program
• Coordination and leadership at the SELPA level
• Local level with access to community resources
• Speed of the process
• Keeping the child’s interest at heart
• The process itself
22. Panelists need continuous reinforcement of skills; otherwise, they are
forgotten. Ongoing opportunities to practice skills learned are
available to panelists. All panelists interviewed felt that the ADR
training prepared them to be panelists.
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23. SELPA Directors and panelists felt that the ADR process builds trust
and fosters communication. The disputants did not totally agree.
24. Special Education Directors and Principals are the key stakeholders at
the district level to insure the widespread use and success of ADR.
They must buy into the process and be willing to sell it to parents.
25. Accurate and uniform data reporting needs to occur at the SELPA
level to the state department to monitor the success of ADR The state
department did not require SELPAs to be accountable for reporting
data regarding ADR cases until the 2000-01 school year.
26. The majority of the district representatives said they would use the
process again. Half of the parents said they would use the process
again.
27. All information shared during the solutions panel mediation must be
kept confidential.
28. During the solutions panel mediation, writing ideas from both sides on
a white board or easel paper helped disputants follow and contribute
to the final agreement.
29. School personnel and parent panelists felt that the primary benefits of
using ADR is that it is cost effective, builds positive relationships, and
fosters good communication.
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Recommendations
Although concerns were raised among these findings, they require minor
adjustments to make the process successful. Evaluating the findings of the
research study of the components necessary for a successful ADR program
has led to recommendations for those SELPAs and school districts in the state
of California that wish to develop such a program. SELPA Directors and
District level administrators are provided with a “blueprint” that may assist in
the development of an effective ADR program.
1. The SELPA Director must buy in and support ADR at the district
level.
2. Since there was a difference in perceptions between disputing parties
as to whether an agreement was implemented or not, it is important to
set up a system of ongoing monitoring to assess the status of
implementation of agreements. This system must provide feedback to
the parents, panelists who mediated the case, and the SELPA staff.
This also assures that districts and SELPAs will keep more accurate
data.
3. The findings suggest that parent disputants require an explanation or
review of the ADR purpose and process prior to going before a
solutions panel. In one case, a parent (disputant) mistakenly thought
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that the parent panelist was her representative and was there to assist
her in getting what she wanted.
4. All District Administrators should receive an overview ADR training
so that they are familiar with the process.
5. There must be a system in place to clearly determine whether the
parent and the district totally buy into the process. A trained Intake
Coordinator was used is all three SELPAs to screen potential cases for
appropriateness.
6. Since attorneys and advocates interfere with the process according to
the findings, they should not be allowed to attend ADR solutions
panels.
7. Since the findings revealed that ADR could be more widely used in
the three SELPAs studied, it is vital to develop a marketing system at
the SELPA and district level to increase the awareness and use of
A D R .
8. Since training is a key to the success of the panelists, it is essential to
develop ongoing training and review. An extensive 3-4 day initial
training offering numerous role-playing opportunities to practice
communication, listening, and problem solving is necessary to prepare
solutions panelists. The training must also focus on the law, as well
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135
as, effective mediation techniques. Review trainings must be offered
periodically. One SELPA found it very effective to conduct a mini
review session prior to convening a solutions panel.
9. During the ADR mediation, district representatives must have the
authority to make financial and program decisions.
10. To assure neutrality, panelists must not be from the disputing district.
11. Since expediency is part of the appeal of using ADR, solutions panels
should convene within one to two weeks from the date the disputants
agree to use ADR. This assures greater speed than the conventional
state level process.
12. An ideal solutions panel should consist of 2-3 panelists to include a
parent of a special needs child, district person, and a community
member. Parent disputants feel more comfortable knowing that the
parent sitting on the panel understands their issues. The presence of a
community member contributes to the “fairness” and “neutrality”
concept. Parents must perceive that the process is fair and equitable
to obtain their trust and confidence.
13. During the ADR mediation, disputants must have the right to caucus
to reduce anger and encourage problem solving.
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14. Create a parent group at the district level to provide parent-to-parent
support and facilitate parents working within the education system.
15. Both disputing parties must feel that they have had a part in creating
the solution. Using a white board or easel as a visual in the
development of the agreement ensures “buy-in” from both sides, and
increases the probability that the parties will take ownership of the
agreement.
Recommendations for Further Study
There are various forms of ADR that are being used in addition to
solutions panels in the SELPAs studied. This researcher chose to focus only
on solutions panel cases that were successfully mediated. Surprisingly, the
parent disputants in this study felt that their cases were not successful and
gave many reasons. Although not intended, as a result of this unexpected
development, the data gathered did touch upon the pitfalls of unsuccessful
cases as well. Perhaps a more in-depth study of unsuccessful cases as defined
by the SELPAs would be warranted. A closer view of unsuccessful ADR
cases, as compared to successful cases, may improve the quality of ADR
programs.
All SELPA Directors stated during the interviews that ADR solutions
panels were just one alternative for settling disputes. Becoming more widely
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used are facilitated IEP meetings. Staff members learn skills that are useful in
IEP meetings to problem solve immediately. If the conflict is resolved at this
level, there is no need for ADR solutions panels. Another alternative is the
use of Resource Parents to help resolve conflict between the school district
and parents of special needs students. A research study exploring alternatives
such as Facilitated IEP meetings and Resource Parents on reducing due
process hearings would also be a logical extension of this study.
This researcher chose to focus specifically on California although the
research and findings support the use of ADR nationally and internationally. It
is probable that the “blueprint” for a successful ADR program could be
applied universally since the same components have been successfully use in
the workplace, community, and educational arena worldwide. However, a
next step would be to take a more global look at what other states are doing to
implement ADR in Special Education.
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APPENDIX A
CRITERIA FOR CHOOSING SELPAS
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CRITERIA FOR CHOOSING SELPAS
S E L P A
F u lly im p lem en ted 5 y rs .
lo n g er
S u cc essfu lly m ed iated at
or least 3 cases sin c e
im p lem en tatio n
S E L P A D ire c to r tra in e d a n d
M en to rs & T rain ers d ire c tly in v o lv e d in p la n n in g
fo r C alifo rn ia an d im p lem en tatio n
S E L P A D irecto r p resen t
fro m p lan n in g to
im p lem en tatio n
E l D o ra d o Y es 9 5 -9 6 sc h o o l y ear Y es Y e s Y es Y es
S a n L u is O b isp o Y es 9 3 -9 4 S c h o o l Y ear Y es Y e s Y e s Y e s
P lacer N o 9 8 -9 9 S c h o o l Y ear Y e s Y e s Y e s N o
S o n o m a N o 9 8 -9 9 S c h o o l Y ear Y es Y es N o Y e s
B u tte Y es 9 5 -9 6 sc h o o l y ear N o in fo rm atio n Y e s N o in fo rm atio n N o
C o n tra C o sta Y es 9 3 -9 4 S c h o o l Y ear Y es Y es Y es Y es
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APPENDIX B
PRELIMINARY COVER LETTER TO SELPA DIRECTORS
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148
February 20, 2001
D ear_______ ,
I am a doctoral student at the University of Southern California conducting
research related to the effectiveness o f the Alternative Dispute Resolution (ADR)
as a viable way to reduce due process cases in special education. The purpose of
this study is to identify conditions under which ADR programs implemented in
the SELPA are successful in their efforts to reduce due process cases throughout
California. Thank you for giving me permission to study your SELPA and the
successful ADR cases that your panelists have mediated.
Information will be gathered in the following ways via a two-day visit to your
SELPA:
1. Interview respondents from three successfully mediated ADR cases,
which have reached and implemented an agreement to be chosen by
you to include parent(s), district representative, and solutions panelists.
2. Interview SELPA Director
3. Questionnaire regarding SELPA Demographics to be completed by
you and returned to me via FAX within two weeks of receipt.
The location of the study, as well as the names of respondents participating in the
study, will be kept confidential.
Since school districts are spending so much money, time, and emotional energy
on litigation, more and more SELPAs and school districts are becoming interested
in ADR as a means of conflict resolution to avoid state mediation and fair hearing
battles. The findings from this study will provide a valuable contribution to those
SELPAs and school districts that wish to design and implement an alternative to
due process.
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149
Enclosed you will find the Demographics Questionnaire and the Interview
questions for the parent, school district representative, solutions panelists, and
you, the SELPA Director. I will be in touch to coordinate the dates for my two-
day visit to your SELPA. To provide additional information, I may be reached at
(909) 929-7700 xt. 4248 (w) or (909) 343-2859 (h). Again, thank you for
agreeing to assist me with this study. Your time and participation in this research
is highly appreciated. I look forward to working with you.
Sincerely,
Nancy Falsetto
Special Education Director,
San Jacinto Unified School District
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APPENDIX C
SELPA DEMOGRAPHICS QUESTIONNAIRE
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SELPA Demographics Questionnaire
Looking at ethnicity, language issues, educational levels, occupation of parents,
and due process track record, please answer the following questions and FAX to
Nancy Falsetto (909) 929-1455:
1. How many special education students do you serve in your SELPA as of the
December 1, 2000 pupil count?
2. What school year did you implement ADR in your SELPA?
3. How many ADR cases have been conducted each school year since
implementation? (ie. 1999-2000- 3 cases)
4. How many fair hearings have you had since implementing ADR?
5. How many state level mediations have you had since implementing ADR?
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152
6. How many state level mediations have gone to a fair hearing since
implementing ADR?
7. Of those ADR cases convened, please indicate the major dispute issues?
one-on-one aide placement transportation assessment _other
(please
list)
8. Of those ADR cases convened, what were the major issues that were
successfully mediated?
9. By what percentage have due process cases increased or decreased each year
since the implementation of ADR? What do you attribute to this increase
or decrease?
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153
(ie. 1995-1996- decreased by 20%-reason -influential advocate moved to another
SELPA).
10. Since implementation, how many cases were filed for due process (mediation
or fair hearing), but dropped because ADR was successful in resolving the
conflict? Please list by school year (ie. 1997-1998- 2 cases)
11. Has the implementation of ADR reduced the cost of attorney’s fees for your
SELPA? If so, by how much each year? (ie. 1997-1998- cost reduced from
$100,000 to $50,000).
12. Since ADR was first implemented, how many repeat parent requests has your
SELPA received for dispute resolution?
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154
13. To the best of your knowledge, what is the level of education of the parents
who have used the ADR process in your SELPA?
elementary (k-6) middle school (7-8) high school (9-12)
college (undergraduate B.AV B.S.) college (graduate M..A./M.S. )
college (graduate Ph.D./Ed.D.)
14. Of the parents who have used ADR since implementation, what were their
English proficiency levels?
Non English Speaking Limited English Proficient Fluent
English Proficient English Only
15. What is the ethnicity of the families that choose to use the ADR process?
% White ___% African American % Hispanic ___% Asian ___%
Other
16. What is the economic status of the parents who have used the ADR
process?
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_low income (0-$20,000) medium income($20,000-$50,000)
high income ($50,000-up)
17. What are the disabilities of the students involved in the ADR cases?
18. What are the ages of the students involved in ADR cases?
0-4 years ___ 5-12 years ___ 13-18 years 19-22 years
19. Which staff is typically involved in the ADR process? (ie. administrator,
psychologist)
20. On the average, how much staff time is spent on ADR cases as compared to
mediations?
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156
21, On the average, how much staff time is spent on ADR cases as compared to
fair hearings?
22. How long does an average ADR session last?
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APPENDIX D
LETTER TO STUDY RESPONDENTS
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158
Sample Letter to Respondent
Dear Respondent;
I am a doctoral student at the University o f Southern California. Thank you for
agreeing to be part o f my study regarding the identification o f conditions under
which Alternative Dispute Resolution (ADR) programs implemented in the San
Luis Obispo County SELPA are successful in their efforts to reduce due process
special education cases throughout California. You were asked to participate in
this study because you have some knowledge and experience in successfully
reaching an agreement through the ADR process.
Enclosed are the questions that I will be asking you. The location o f the study, as
well as your name, will be kept confidential. Your answers will never be used in
any way that would identify you. They will be combined with answers from other
respondents to make a statistical report. The interview will be tape-recorded and
will take approximately 30 minutes to conduct. Mary Jo DeSio, your SELPA
Director will arrange a date, time, and location that are mutually convenient to
hold the interviews. If you have any questions or concerns, I may be reached at
(909) 929-7700 xt. 4248 (w) or (909) 343-2859 (h). I look forward to meeting
you.
Sincerely,
Nancy Falsetto
Special Education Director
San Jacinto Unified School District
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APPENDIX E
INTERVIEW SURVEY QUESTIONS FOR SELPA DIRECTORS,
SOLUTIONS
PANEL MEMBERS, PARENTS, AND DISTRICT
REPRESENTATIVES
AND
INTRODUCTION SCRIPT TO RESPONDENTS
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160
Interview Introduction to Respondents
This study is for my doctoral dissertation on Alternative Dispute
Resolution. You were chosen to participate in this study because you
have some knowledge and experience with the ADR process. It is
important for the accuracy o f the study for you to give as complete an
answer as possible. There are no right or wrong answers. For my part,
I will keep all information confidential. Your answers will never be
used in any way that would identify you. They w ill be combined with
answers from other respondents to make a statistical report. The
interview is voluntary and I appreciate your willingness to take part.
Let me tell you how this interview process will work. I w ill read you
15 questions exactly as worded so that every respondent in the survey
is answering the same questions. The entire process will be tape-
recorded and take approximately 45 minutes. You will be asked to
answer two kinds of questions. In most cases, you’ll be asked to
answer in your own words. In a few cases, you w ill be given a choice
o f answers and asked to choose the one that fits best. If at any time
during the interview you are not clear about what is wanted, be sure to
ask me.
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SELPA Director I n t e r v i e w Questions
1. What c r i t e r i a do you use to select and train ADR solutions panel
members?
2. What components do you include in your ADR training?
3. How are your solutions panels configured? (I.e. District person, parent,
community member)
4. Stakeholders are defined as those key employees who are in positions
of authority to make or influence decisions for the district. What key
positions do stakeholders in your school districts hold in regard to
implementing ADR?
5. How do you market ADR to the stakeholders in these school districts?
6. What are the basic components in your ADR program that make it
successful?
7. How does using the ADR process promote ongoing relationships
between parents and their child’s school district?
8. Considering timelines, number o f days, and expediency, how has ADR
differed from state level mediation in scheduling and resolving cases?
9. To what extent do parents perceive that the ADR process is fair and
equitable? Is it Very Fair Fair Not Fair at all?
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162
10. Has using the ADR process changed your approach in dealing with
difficult people in general? If so, how?
11 . What is the primary benefit of using ADR as a way o f settling disputes
regarding special education issues?
12. Do you think that ADR is an effective way to reduce due process
cases? Why or why not?
13. From your experience, which types o f cases are inappropriate for a
solutions panel to mediate? Which types o f cases are appropriate?
14. As the SELPA Director, what is your role in assuring the success of
the ADR program in your SELPA?
15. Research shows that disputants need to be assured o f the neutrality of
the panelists. How does the ADR process assure disputants that the
panelists are neutral third parties?
16. Research shows that agreements are more likely to be carried out after
mediation if both parties have input in creating the solution. How do
solutions panelists insure that disputants have input in creating a
solution?
17. Once the two disputing parties reach an agreement, what percentage of
these agreements are actually implemented in your SELPA?
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18. Why do disputants choose ADR rather than go to mediation or
hearing to resolve special education issues?
19. Do you have anything else that you would like to add?
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164
Solutions Panel Member Interview Questions
1. What components are included in your ADR training? To what extent
did this training prepare you to be a solutions panel member?
2. If you were in charge o f selecting ADR panel members, what would
you consider in making your selections?
3. What are the basic components in your ADR program that make it
successful?
4. From your experience, which cases are inappropriate for a solutions
panel to mediate? Which cases are appropriate for a solutions panel to
mediate?
5. In your experience as a solutions panelist, an agreement was
successfully reached in this case. Was this agreement implemented? If
yes, why? If no, why not?
6. What were the major issues in the ADR cases that you have
successfully mediated?
7. How does using the ADR process promote an ongoing relationship
between parents and their child’s school district?
8. Research shows that disputants need to be assured o f the neutrality of
the panelists. How do you assure the disputants that you are a neutral
third party?
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165
9. Research shows that agreements are more likely to be carried out after
mediation if both parties have input in creating the solution. How do
you assure the disputants that they have input in creating the solution?
10. Do you think that ADR is an effective way to reduce due process
cases? Why or why not?
11.To what extent did the parents in this case perceive that the ADR
procdss
was fair and equitable? Is it Very Fair Fair Not Fair at all
12. How has being trained in the ADR process changed your approach in
dealing with difficult people in general?
13. What is the primary benefit o f using ADR as a way o f settling disputes
regarding special education issues?
14.1n terms o f efficiency, number o f days, and speed, how quickly was
case scheduled and resolved once the decision was made to use the ADR
process?
15. What is the benefit to disputants to choose ADR rather than state level
mediation or fair hearing to resolve special education issues?
16. Do you have anything else you would like to add?
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Parent Interview Questions
1. What made you choose the ADR process rather than go to mediation
or a fair hearing to resolve your special education issues?
2. How has using the ADR process promoted a more positive relationship
between you and your child’s school district?
3. In your experience as a disputant, an agreement was reached in this
case. Was this agreement implemented? If yes, why? If no, why not?
4. Research shows that agreements are more likely to be carried out after
mediation if both parties have input in creating the solution. How did
the panelists enable you to have input in creating a solution?
5. In terms o f efficiency, number o f days, and speed, how quickly was
your case scheduled and resolved once you decided to use the ADR
process?
6. What is the primary benefit o f using ADR as a way o f settling disputes
regarding special education issues?
7. To what extend do you perceive that the ADR process is fair and
equitable?
Is it Very Fair Fair Not Fair at all?
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167
8. Do you think that ADR is an effective way to reduce due process
cases? Why? Or Why not?
9. Research shows that disputants need to be assured o f the neutrality of
the panelists. As a disputant, how were you assured that the panelists
were neutral third parties?
10. What was the major issue in this ADR case that was successfully
mediated by a solutions panel?
11. From your experience, which types of cases are appropriate for a
solutions panel to mediate? Which cases are inappropriate?
12. What is it about the ADR program in your SELPA that make it
successful?
13. Would you use this process again if you had a dispute regarding
special education?
14. Has going through the ADR process changed your approach in dealing
with difficult people in general? If so, how?
15. Do you have anything else you would like to add?
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168
District Representative Interview Questions
1. What made you choose the ADR process rather than go to mediation
or a fair hearing to resolve your special education issues in this case?
2. How did using the ADR process in this case promote a positive
relationship between the parent and your school district?
3. In your experience as a disputant, an agreement was reached. Was this
agreement implemented? If yes, why? If no, why not?
4. Research shows that agreements are more likely to be carried out after
mediation if both parties have input in creating the solution. How did
the panelists on this case enable you to have input in creating the
solution?
5. In terms o f efficiency, number of days, and speed, how quickly was
this case scheduled and resolved once the decision was made to use the
ADR process?
6. What is the primary benefit of using ADR as a way o f settling disputes
regarding special education issues?
7. To what extend do you perceive that the ADR process is fair and
equitable? Is it Very Fair Fair Not Fair at all?
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169
8. Do you think that ADR is an effective way to reduce due process
cases? Why? Or Why not?
9. Research shows that disputants need to be assured o f the neutrality of
the panelists. As a disputant, how were you assured that the panelists
were neutral third parties?
10. What was the major issue in this case that was successfully mediated
by a solutions panel?
11. From your experience, which types o f cases are appropriate for a
solutions panel to mediate? Which types o f cases are inappropriate?
12. What is it about the ADR program that makes it successful in your
SELPA?
13. Would you use this process again if you had a dispute regarding
special education?
14. Has going through the ADR process changed your approach in dealing
with difficult people in general? If so, how?
15. Do you have anything else you would like to add?
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170
APPENDIX F
PILOT STUDY INFORMATION TO INCLUDE:
INTRODUCTION SCRIPT TO RESPONDENTS, INTERVIEW
QUESTIONS,
SELPA DEMOGRAPHICS QUESTIONNAIRE
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171
Pilot Study
SELPA Demographics Questionnaire
Looking at ethnicity, language issues, educational levels, occupations of parents,
and due process track record, please answer the following questions and return to
Nancy Falsetto:
1. How many special education students do you serve in your SELPA?
2. How many fair hearings have you had since implementing ADR?
3. How many state level mediations have you had since implementing ADR?
4. How many mediations have gone to fair hearing?
5. In what year did you implement ADR and, how many ADR cases have been
conducted each year since implementation?
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6. O f those ADR cases convened, what were the major dispute issues?
one-on-one aide placement transportation assessment
eligibility other (please list)__________________
7. What were the major issues in the ADR cases that your SELPA has
successfully mediated?
8. Have due process cases increased or decreased since the implementation of
ADR? What do you attribute to this increase or decrease?
9. How many cases filed for due process (mediation or fair hearing), but dropped
because ADR was successful in resolving the conflict?
10. Has the implementation o f ADR reduced litigation expenses? If so, how much
overall?
11. Since ADR was first implemented, how many repeat parent requests has your
SELPA received for dispute resolution?
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12. What is the level of education o f the majority o f the parents who have used
the ADR process?
elementary (k -6 ) middle school (7-8) high school (9-12)
college (undergraduate B.A./ B.S.) college (graduate M..A./M.S. )
college (graduate Ph.D./Ed.D.)
13. O f the parents who have used ADR since implementation, what were the
majority o f their English proficiency levels?
Non English Speaking Limited English Speaking Fluent
English Speaking English Only
14. What is the ethnicity o f the majority o f the families that choose to use the
ADR process?
% White ___% African American___ % Hispanic ___% Asian %
Other
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15. What is the economic status of the majority o f the parents who have used the
ADR process?
low income (G-$2G,G00) medium income ($20,000-150,000)
high income ($50,000-up)
16. What are the disabilities o f the students involved in the ADR cases?
17. What is the typical age o f the students involved in ADR cases?
0-4 years 5-12 years ___13-18 years _____19-22 years
18. Which staff is typically involved in the ADR process?
19. Approximately how much staff time is spent on ADR as compared to
mediation or fair hearings?
20. How long do ADR sessions typically last?
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175
Pilot Study
SELPA Director Interview Questions
1. What criteria do you use to select and train ADR solutions panel
members?
2. What components do you include in your ADR training?
3. How are your solutions panels configured? (I.e. District person, parent,
community member)
4. Stakeholders are defined as those key employees who are in positions
o f authority to make or influence decisions for the district. What key
positions do stakeholders in your school districts hold in regard to
implementing ADR?
5. How do you market ADR to the stakeholders in these school districts?
6. What are the basic components in your ADR program that make it
successful?
7. How does using the ADR process promote ongoing relationships
between parents and their child’s school district?
8. Considering timelines, number o f days, and expediency, how has ADR
differed from state level mediation in scheduling and resolving cases?
9. To what extent do parents perceive that the ADR process is fair and
equitable? Is it Very Fair Fair Not Fair at all?
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176
10. Has using the ADR process changed your approach in dealing with
difficult people in general? If so, how?
11. What is the primary benefit o f using ADR as a way o f settling disputes
regarding special education issues?
12. Do you think that ADR is an effective way to reduce due process
cases? Why or why not?
13. From your experience, which types o f cases are inappropriate for a
solutions panel to mediate? Which types o f cases are appropriate?
14. As the SELPA Director, what is your role in assuring the success of
the ADR program in your SELPA?
15. Research shows that disputants need to be assured o f the neutrality o f
the panelists. How does the ADR process assure disputants that the
panelists are neutral third parties?
16. Research shows that agreements are more likely to be carried out after
mediation if both parties have input in creating the solution. How do
solutions panelists insure that disputants have input in creating a
solution?
17. Once the two disputing parties reach an agreement, what percentage of
these agreements are actually implemented in your SELPA?
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18. Why do disputants choose ADR rather than go to mediation or
hearing to resolve special education issues?
19. Do you have anything else that you would like to add?
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178
Solutions Panel Member Interview Questions
1. What components are included in your ADR training? To what extent
did this training prepare you to be a solutions panel member?
2. If you were in charge o f selecting ADR panel members, what would
you consider in making your selections?
3. What are the basic components in your ADR program that make it
successful?
4. From your experience, which cases are inappropriate for a solutions
panel to mediate? Which cases are appropriate for a solutions panel to
mediate?
5. In your experience as a solutions panelist, an agreement was
successfully reached in this case. Was this agreement implemented? If
yes, why? If no, why not?
6. What were the major issues in the ADR cases that you have
successfully mediated?
7. How does using the ADR process promote an ongoing relationship
between parents and their child’s school district?
8. Research shows that disputants need to be assured of the neutrality of
the panelists. How do you assure the disputants that you are a neutral
third party?
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179
9. Research shows that agreements are more likely to be carried out after
mediation if both parties have input in creating the solution. How do
you assure the disputants that they have input in creating the solution?
10. Do you think that ADR is an e f f e c t i v e way to reduce due process
cases? Why or why not?
11. To what extent did the parents in this case perceive that the ADR
process was fair and equitable? Is it Very Fair Fair Not Fair at
all?
12. How has being trained in the ADR process changed your approach in
dealing with difficult people in general?
13. What is the primary benefit o f using ADR as a way o f settling disputes
regarding special education issues?
14.1n terms of efficiency, number o f days, and speed, how quickly was
case scheduled and resolved once the decision was made to use the ADR
process?
15. What is the benefit to disputants to choose ADR rather than state level
mediation or fair hearing to resolve special education issues?
16. Do you have anything else you would like to add?
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180
Parent Interview Questions
1. What made you choose the ADR process rather than go to mediation
or a fair hearing to resolve your special education issues?
2. How has using the ADR process promoted a more positive relationship
between you and your child’s school district?
3. In your experience as a disputant, an agreement was reached in this
case. Was this agreement implemented? If yes, why? If no, why not?
4. Research shows that agreements are more likely to be carried out after
mediation if both parties have input in creating the solution. How did
the panelists enable you to have input in creating a solution?
5. In terms o f efficiency, number of days, and speed, how quickly was
your case scheduled and resolved once you decided to use the ADR
process?
6. What is the primary benefit of using ADR as a way o f settling disputes
regarding special education issues?
7. To what extend do you perceive that the ADR process is fair and
equitable?
Is it Very Fair Fair Not Fair at all?
8. Do you think that ADR is an effective way to reduce due process
cases? Why? Or Why not?
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181
9. Research shows that disputants need to be assured of the neutrality of
the panelists. As a disputant, how were you assured that the panelists
were neutral third parties?
10. What was the major issue in this ADR case that was successfully
mediated by a solutions panel?
11. From your experience, which types of cases are appropriate for a
solutions panel to mediate? Which cases are inappropriate?
12. What is it about the ADR program in your SELPA that make it
successful?
13. Would you use this process again if you had a dispute regarding
special education?
14. Has going through the ADR process changed your approach in dealing
with difficult people in general? If so, how?
15. Do you have anything else you would like to add?
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182
District Representative Interview Questions
1. What made you choose the ADR process rather than go to mediation
or a fair hearing to resolve your special education issues in this case?
2. How did using the ADR process in this case promote a positive
relationship between the parent and your school district?
3. In your experience as a disputant, an agreement was reached. Was this
agreement implemented? If yes, why? I f no, why not?
4. Research shows that agreements are more likely to be carried out after
mediation if both parties have input in creating the solution. How did
the panelists on this case enable you to have input in creating the
solution?
5. In terms o f efficiency, number o f days, and speed, how quickly was
this case scheduled and resolved once the decision was made to use the
ADR process?
6. What is the primary benefit o f using ADR as a way o f settling disputes
regarding special education issues?
7. To what extend do you perceive that the ADR process is fair and
equitable? Is it Very Fair Fair Not Fair at all?
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183
8. Do you think that ADR is an effective way to reduce due process
cases? Why? Or Why not?
9. Research shows that disputants need to be assured o f the neutrality of
the panelists. As a disputant, how were you assured that the panelists
were neutral third parties?
10. What was the major issue in this case that was successfully mediated
by a solutions panel?
11. From your experience, which types o f cases are appropriate for a
solutions panel to mediate? Which types o f cases are inappropriate?
12. What is it about the ADR program that makes it successful in your
SELPA?
13. Would you use this process again if you had a dispute regarding
special education?
14. Has going through the ADR process changed your approach in dealing
with difficult people in general? If so, how?
15. Do you have anything else you would like to add?
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
APPENDIX G
DATA ORGANIZATION OF THE ADR COMPONENTS
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Reproduced w ith permission o f th e copyright owner. Further reproduction prohibited without permission.
DATA ORGANIZATION - ADR COMPONENTS
T ra in in g C o m p o n en ts
D ealin g w ith C o m m u n icatio n N eu tral 3 rd
d ifficu lt E x p ed ien cy in R e d u c e D u e M ed . U n d erstan d s E m p o w erm en t in P arty S e n se of M ed iatio n
S u b G ro u p s T ru st p eo p le so lv in g c a se s P ro c ess Issu es C raftin g th e S o lu tio n F airn ess D & w T each n iq u e s
P flT p n tc
1 (tiviilo
S o lu tio n
P an e lists
P an e list
P aren t
P an elist
S c h o o l
P erso n
D istrict R e p .
S E L P A
D irecto r

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Asset Metadata

Creator Falsetto, Nancy Ann (author)

Core Title Alternative dispute resolution: An effective strategy for reducing special education due process hearings in California

School Rossier School of Education

Degree Doctor of Education

Degree Program Education

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag education, administration,education, special,OAI-PMH Harvest

Language English

Contributor Digitized by ProQuest (provenance)

Advisor Sundt, Melora (committee chair), Gothold, Stuart (committee member), Nelson, John L. (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c16-278753

Unique identifier UC11334829

Identifier 3094327.pdf (filename),usctheses-c16-278753 (legacy record id)

Legacy Identifier 3094327.pdf

Dmrecord 278753

Document Type Dissertation

Rights Falsetto, Nancy Ann

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the au...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus, Los Angeles, California 90089, USA