Tips on How to Prepare for Mediation Tip 1:

Why Settle When You Are Right?

There are a number of aphorisms that support the wisdom of, if not compromising, at least seriously considering it. One such aphorism is: a reasonable settlement is preferable to a good case, because one can always lose a good case. The great Jurist Leonard Hand once observed: “As a litigant, I should dread a lawsuit beyond almost anything else short of sickness and death.” In Abraham Lincoln’s “Notes for a Law Lecture” he writes: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time.” There is Voltaire’s voice of experience: “I was never ruined but twice: once when I lost a lawsuit, and once when I won one.” In Bleak House, Charles Dickens observes the court of Chancery: “…which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honorable man among its practitioners who would not give — who does not often give — the warning, ‘Suffer any wrong that can be done you rather than come here!’” In the Devil’s Dictionary (1911) Ambrose Bierce defines litigation as: “A machine which you go into as a pig and come out of as a sausage.” Investor guru Doug Casey once said, “We all love the idea of justice, even if most people neither understand what it is; nor like its reality.” Oscar Wilde famously remarked: “the truth is rarely pure and never simple.” Mark Twain warned: “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” The Bible has also weighed in, Luke 11:46 warns: “Woe unto you also, ye lawyers! For ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers.” There is a Russian Proverb: “A bad compromise is better than a good battle.” Sun Tzu writes in The Art of War: “that which depends on me, I can do. That which depends on my enemy, cannot be certain.” Tip 2:

Settle the case before mediation

Tip 3:

Settle the case at mediation

1

Tip 4:

Explain to the persons accompanying you to the mediation, what the mediation entails, and how it will proceed. Do this before the mediation.

Tip 5:

Decide if you want a general opening statement with all person’s present, or go immediately into separate caucus meetings with your attorney and the mediator. If so, should all parties initially gather in a single room to hear mediator relate items such as confidentiality, signatures on mediation settlement agreement, etc. Discuss and decide this before mediation.

Tip 6:

Save your anger, explanations or why you are right for conferences with your lawyer (and the mediator); not the other party. For this reason, bring to mediation only personnel necessary to resolve case.

Tip 7:

Remember there is a difference between what lawyers/parties are saying, and what lawyers/parties are thinking.

In negotiating it is acceptable to “posture” and “puff”, and spin and exaggerate things like your settlement position and assessment of claims and defenses. But you should never – out – and – out – lie about material facts. Particularly those the other side can look up, confirm or reject. (i.e. Facebook posts, document/e-mail review). Also, because of the nature of a probable continuing relation with parent/student, any posturing, puffing or exaggeration should be for the mediator’s ears only – let him/her choose how to convey your position to the opposing party. Rule 9, Alabama Civil Court Mediation Rules. Generally, principals of mediation governing lawyer truthfulness do not permit a distinction to be drawn between caucus mediation context and other negotiation settings. Tip 8: Be patient. Sometimes, even after mediation and/or resolution, there is a settlement on the date of the due process hearing or trial (or shortly before that day). Other times, the parties wait until the morning of the hearing to have their settlement conversation. You may ask “why did it take for the morning of the hearing for the parties to talk to each other?” They could be playing a game of brinksmanship. They could be thinking settlement was futile. Maybe the knowledge that it was possible to lose the case really didn’t sink in until the morning of the hearing. Maybe a party (or witness) who, even though they intend to tell the truth, does not want to raise the right hand and swear to matters about which they are not 100% absolutely sure. Particularly with school systems and parent disputes, the parties may realize that they could win the case but the result would so badly effect their relationship it would be as bad as if they had lost. Sometimes the people that show up to try the case or accompany the lawyer who is trying the case are not the people who made the earlier decisions that did not result in settlement. These new people are able to take a more dispassionate view. At any rate, if this is the status of the 2

dispute, request that the Hearing Officer/Judge give the parties one last opportunity to resolve their differences. Many of the due process hearings I have presided over reached a settlement at this stage of the proceeding. On other occasions – after hearing the evidence/testimony – the parties are very willing – even plead – to have an opportunity to settle. Another possibility is mediation/arbitration. Although I have not used this technique in a due process, I have used it in an employment arbitration. The initial portion of the case, I sit as the Arbitrator, hear the case, and reach a decision. The decision is written down and placed in a sealed envelope. The parties then mediate with the sealed envelope sitting on the table. If they settle, I take the envelope with me and destroy it. No one will find out what it contained. If they don’t, the envelope is opened and the parties have their award. (The occasion I used this was a two-day hearing. Most of the evidence concluded about two-thirds of the first day). Tip 9: Do not oppose/avoid making deals because of stubbornness or a strong grievance – the ones where you feel like “it’s the principal of the thing”. “We never negotiate with terrorists”. The old saying “millions for defense, but not once cent for tribute.” “Better to die on your feet than to live on your knees.” That kind of thing. It is counterproductive. It only provides more compensation for your lawyers – and sometime the opposing lawyer. In a school system/parent relationship it could end up being like an argument with your spouse. In a relationship where the parties have to live together, winning can be worse than losing. Get these type attitudes out-of-your system before the mediation. You are there to settle the matter even though you are right! Tip 10: Always remember that what the due process complaint is submitted on, may not be “The Real Case.” It can really be about a single incident, particularly a disciplinary or bullying incident. It can be about a perceived insult made by a teacher to the parent or vice versa. It can be over something as trivial pick-up lane rules. It can be about achieving a result that is not openly apparent: obtaining disability benefits for the child, accommodations on standardized tests prepatory to seeking a scholarship, exhaustion of remedies or even outand-out harassment of the system. Anticipate this situation and remember as Albert Einstein said: “Everything should be made as simple as possible, but not simpler.” Prepare your personnel (and your lawyer) for what “The Real Case” may be and how to address it. Do this before the mediation. 3

Tip 11: Another satisfied customer – but not really. The presenter has found that in most instances, if both parties leave the mediation somewhat dissatisfied, a good settlement has been reached. That being said, there are a number of human qualities that can transpire in a mediation that interfere with the settlement prospects. These qualities should be suppressed during the mediation. One is, confirmation bias. Human beings tend to overweigh evidence that confirms their pre-existing beliefs and to underweight or ignore evidence or facts that disconfirms them. Another is that human beings tend to believe what they are payed to believe. For this reason, the mind protects itself from cognitive dissonance by convincing oneself of the rectitude of his/her views. A third quality is over confidence. One side may believe that they cannot lose a case. But in 40 years of litigation experience, any case can be lost. Of course, if the matter goes to hearing, the losing party will either blame their own lawyer or the Hearing Officer or both. There is a need for the losing side to blame someone. In that case, you can blame, but then move on! Even if an appeal is available, consider the cost in time, money, labor and the possibility you still may not win. As I frequently advise “I think your best strategy in these instances is to try to think of something more pleasant”. Besides, you are not the only one to have lost a case before. As Woody Allen (playing the role of Fielding Mellis in the movie Bananas, 1971) exclaimed: “I object, Your Honor! This trial is a travesty. It’s a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham.” Tip 12: Allow the parties to vent if a joint session is undertaken. (But save school system personnel venting for private sessions with the mediator). Venting has a “therapeutic” effect of allowing the parents to tell their story. Avoid being condescending or dismissive (eye rolls, sighs, etc.). Avoid comments like, “we are the educators and we know what’s best for your child.” (Even if voiced in the most kindly of manner). In those type of situations, silence is the best virtue. I believe President Eisenhower was reported to have said – I paraphrase – “No one gets in trouble by keeping their mouth shut”.

4

Tip 13: Make sure the item that the parties are disagreeing over is one that is worth disagreeing over or at least continuing to disagree over. As a part of this concept, remember that if the case is not settled, it will proceed to hearing. In the 1971 Robert Altman movie McCabe & Mrs. Miller, Warren Beatty plays McCabe. He is running a whore house and saloon operation. The mining company wants to buy him out. They make an offer. McCabe turns them down. They increase their offer. He turns them down again. The company decides it can’t reason with McCabe. Instead, they send three men to kill him. When the bad guys arrive, McCabe tries to talk business with them. The head bad guy says: “I don’t make deals.” McCabe says: “You don’t work for Harrison Shaughnessy?” The bad guy says: “Sometimes. But only when they can’t make a deal.” Litigation: a zero-sum game. The benefits of mediation are compromised if one insists on continuing to litigate. For example, major issues are resolved, yet the parties continue to wrangle over lesser issues – particularly attorney’s fees. In most litigation – one party wins and the other loses. But in due process many hearings result in split decisions so everybody is dissatisfied. Sometimes one wins on an issue when they would have rather won on another issue. One might say that litigation is the best alternative to personal combat, but reasonable compromise is almost always a better option. Most litigants reach this conclusion. Compromise should not have negative connotations. You should listen to your lawyer on why you should settle. Settlement is not only a means of avoiding additional costs and work, but may reduce or extinguish continuing difficulties with a parent whose child may remain in your school. Tip 14: Know your mediation, know your mediators. Some mediators are “peace-makers”. These people seek to bring parties to a common ground while providing a safe environment where all can be heard and understood. Other mediators are judgmental. They readily tell the parties where they ought to end up, and why, and why they are off the deep-end if they do not see things the same way as the mediator. As one commentator put it, these mediators are usually former judges who act as if they still have iron fists inside their velvet gloves. Sometimes the mediator is a combination of these styles. Relying on each as it seems helpful toward a solution. Different parties and different disputes may be better served for one or the other mediation style. Still, any style can promote clarity. If for no other reason, clarity is important. The mediator who listens, probes, suggests, facilitates, and helps the parties focus on their interests, and not their positions, offers a very compelling reason for mediation. Perhaps the case does not settle at the mediation. However, the most significant contribution made

5

by the mediator may be causing the parties to define their interests and really assess their best alternatives to a negotiated settlement versus a due process hearing or a trial. Another benefit of mediation is to discover facts of which you may not otherwise be aware. It’s particularly helpful in the educational setting because, although there may be an exchange of documents (i.e. the educational records of the child), there is no discovery, that is, no written interrogatories or sworn depositions taken before a stenographer. You learn your opponent’s case at mediation. This aspect gives support to the statement by Sherlock Holmes: “It is of the highest importance in the art of detection to be able to recognize, out of a number of facts, those which are incidental and which are vital.” A third benefit of the mediation is to allow the mediator to coax or compel the parties to focus on the issues that should be resolved without a due process hearing. These are issues beyond personal arguments or feelings. In many cases the Hearing Officer has no authority over these issues, such as events involving disciplinary action for minor infractions, bullying, or disallowing participation in an athletic event, graduation ceremony or school extracurricular function. The mediator can explain this to the parties whereas the parties may have been skeptical upon hearing it from their own lawyer. The same principle is true regarding certain aspects of law (i.e. you cannot be awarded monetary damages). A similar benefit of mediation is the push. Nietzsche once wrote that: “that which is falling [sometimes] deserves to be pushed!” It is the mediator who must often take the role of the pusher, and the parent or school system, the pushee. Frequently, the lawyers for the parties, not wanting to anger their client or be asked “whose side are you on?” will not provide the push. To be the pusher requires a certain skill level. It can only be successful if no resistance is met by the lawyer who has decided for one reason or another not to impart his “wisdom” to the parties’ about the weakness of their respective positions. The final benefit is you may be able to withhold some information that will ultimately be revealed if the case goes to hearing (i.e. e-mails disrespectful of the child, child’s teacher was fired for misconduct not involving the child, etc.). Tip 15: Leave appropriate time for conducting the mediation. Too often the parties assume a mediation will be an hour or two. Some mediations are successful in that time. On other occasions, it is quickly revealed that the parties are so far apart that the mediation should be terminated. (The presenter has found that situation to be true in many attorney fee disputes). Still, mediations lasting much longer, in my experience, have generally had the most success. Perhaps in those situations the parties ultimately settled because they were just “worn out.” But nevertheless, those situations should be anticipated, including the possibility that the participants must be fed.

6

Tip 16: Have ample room – at least two separate meeting places for the parties. In many instances, a third place for discussions between the mediator and the parties’ lawyers or perhaps a single member of the parties’ team outside the presence of the others. These meetings are not a conspiracy between the lawyer and the mediator to prevent or compel a successful mediation. Often, the conferences are necessary because a lawyer will share a particularly compelling problem with the mediator or sometimes the problem may be stated in the presence of the opposing lawyer and the mediator, but the lawyer relating the problem does not want to state it in the presence of his client even in a private caucus setting. Tip 17: The mediation is a settlement conference. Too often the response to parent proposals by school personnel is “that’s an IEP decision.” No, it is not. In a mediation, any settlement mutually agreed by the parties can be attained. It doesn’t matter if it is something normally decided by an IEP team such as placement, time in resource room, etc. The parties negotiate the settlement. If both agree and sign, that concludes the matter. The mediation is a “contract” that can be enforced through the state complaint procedure, refiling another due process, or filing in state or federal court. For these reasons, the personnel that are present at the mediation should be capable of reaching the agreement. In many instances, this is a problem. The superintendent is not present or his/her board must make the final decision. In that situation, the person attending as the lead school district personnel should be capable of reaching the necessary personnel by telephone and concluding the matter. In a similar vein, in the settlement negotiations of a mediation, the IEP team does not get to “choose its poison.” In other words, the due process has been filed because it is alleged that the IEP team constructed an inappropriate IEP, omitted or committed some other sin that denied the child a free appropriate public education or just otherwise has wronged a parent or child. (For that reason, an IEP team does not get to decide the amount of compensatory education when a finding of fault by the school system has been determined.) The IEP team can have input on what can be done to correct alleged problem(s), but it can’t decide what the correction(s) shall be. Tip 18: In regard to Tip 17, it is not advisable to ever allow a mediation to hold over. It needs to be concluded on the day of mediation unless the parties have mutually agreed before 7

meeting that the entire dispute cannot be concluded in that manner. Buyer’s remorse frequently sets in. Superintendent or other high official (i.e. Board member) who were not at the mediation (and may not be knowledgeable of special ed law) come up with one added minefield to the settlement such as demanding the parents apologize to the school system (or the parents come up with their demand for apology from the school system personnel). All issues should be concluded at the end of the mediation on the same day as the mediation. Such matters including attorney’s fees and who will pay for the mediator if the free state personnel are not used should be resolved. Despite this view, which is entirely mine, many mediations settle in all other regards but with the school system and lawyer for the parent agreeing to conclude the fee issue for a “reasonable fee.” Although this approach has often been successful, on several occasions, I have then mediated the attorney’s fees dispute. Personally, as a lawyer, I would never leave the mediation without all elements concluded. (The exception to this rule would be a residential or third-party placement, sometimes vocational services, etc. and/or other situations where it is unclear if a non-party entity will provide the service or accept the placement). Tip 19: This tip is a suggestion only. Because there is a minor involved, if I were representing the minor child I would want the mediation agreement incorporated into a final order signed by the due process Hearing Officer. While the mediation agreement is a valid contract, I view this course as similar to a monetary settlement for a minor which requires not only a judge’s approval, but a third party (guardian ad litem) to review the settlement and express that it is in the child’s best interest. To me, the Hearing Officer’s signature is a confirmation that the agreement is in the child’s best interest. Tip 20: If mediation is unsuccessful – don’t give up! Continue to negotiate. Based on what was learned at the mediation the case may yet resolve.

8