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~ Creating Agreement ~
Collaborative Problem Solving in Special Education and
Early Intervention
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s This Slide Presentation was Jointly Developed By:
The Consortium For Appropriate Dispute Resolution In Special Education (CADRE)
The IDEA Partnership Project (at NASDSE)
With funding from the US Department of Education, Office of Special Education Programs (OSEP)
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s Development TeamThe following individuals & organizations participated
in the development of this presentation
American Occupational Therapy Association (AOTA) Carol Gryde
Consortium for Appropriate Dispute Resolution in Education (CADRE) Loni Elliott Philip Moses Marshall Peter John Reiman Richard Zeller
IDEA Partnership Joanne Cashman Terry Jackson
Fiesta Educativa Lorena Morales
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s Development Team (cont.)The following individuals & organizations participated
in the development of this presentation
National Education Association (NEA) Judy Richards
New York Long Island Families Together (LIFT) Helene Fallon
School Social Work Association of America (SSWAA) Steve Button
Wisconsin Family Assistance Center for Education, Training & Supports (FACETS) Nelsinia Ramos
Wisconsin Special Education Mediation System Nissan Bar-Lev Jan Serak
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“Seek first to understand, then to be
understood.”
Stephen Covey, “Habit 5” Seven Habits of Highly Effective People
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sCADRE/IDEA Partnerships Dispute Resolution Workgroup
Vision Educational outcomes will be improved
when families, schools and service providers are working together effectively.
Provision of training and educational opportunities to a diverse group of stakeholders enhances the capacity to engage in collaborative problem solving that is responsive to individual students’ needs.
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Workshop OutcomesParticipants will acquire an increased awareness of the breadth of issues and strategies associated with Special Education Dispute Prevention/ Resolution including: Gaining a better understanding of conflict and the ways
that people respond Gaining familiarity with the Procedural Safeguards
requirements in IDEA ’04 Learning about practices and strategies that comprise
the “Continuum” Understanding the power of listening in resolving
conflicts Gaining an awareness of interest based problem solving
strategies Understanding the important role of cultural issues in
relation to resolving disputes Becoming aware of useful resources for additional
information
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Our Assumptions… Different cultures may have differing
perspectives on conflict and how it’s most appropriately approached
Conflict is a healthy reflection of a diverse and competitive society
Most parent/school relationships are positive and mutually respectful
Skills can be acquired that help facilitate productive relationships
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Our Assumptions… Early opportunities exist to
collaboratively address differing viewpoints on how to best serve the child
Adversarial processes should be reserved for situations where other options have been exhausted
The cost of adversarial processes is high in personal, relationship and financial costs
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Conflict
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Conflict
What does the word “conflict” bring to mind?
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Conflict Expressed struggle Two or more people Interdependent Strong emotion Perceived blockage
NeedsValues
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s The Five Conflict Handling Modes
Relationship Goals
Pe
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als
Compromising
Controlling Collaborating
AccommodatingAvoiding
Source: Thomas Killmann
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s Avoiding
• Unassertive and uncooperative
• Do not pursue your own concerns or those of other(s)
• Don’t address the conflict
• Sidestep, postpone, or withdraw from the issue for the present time
Pe
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l Go
als
Relationship Goals
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s Avoiding – When to Use
• When the potential danger or damage outweighs the benefits of resolution
• When more time is needed to collect information
• When emotions need to cool down
Pe
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l Go
als
Relationship Goals
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s Accommodating
• Focuses on relationship needs
• Sacrifice your own personal goals to satisfy the concerns of the other(s)
• Yield to another point of view
Pe
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l Go
als
Relationship Goals
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s Accommodating – When to Use
• To preserve harmony and avoid disruption
• To achieve temporary settlement
• To arrive at quick solutions under pressure
• When the relationship is the most important goal
Pe
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als
Relationship Goals
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s Controlling
• Power oriented
• Pursue own ends without agreement of others
• Achieving one’s personal goals paramount
• Results in win-lose or lose-winPe
rso
na
l Go
als
Relationship Goals
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s Controlling – When to Use
• In emergencies
• When unpopular actions must be implemented
• When your family or organization’s welfare is at stake
• When your authority and responsibility are unquestionable
Pe
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l Go
als
Relationship Goals
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s Compromising
• Objective to find expedient, mutually acceptable alternative
• Both parties give up something
• Exchanging concessions – splitting the difference
• Quick middle position
Pe
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als
Relationship Goals
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s Compromising – When to Use
• When two parties of equal power are strongly committed to mutually exclusive goals
• To achieve temporary settlements to complex issues
• To arrive at quick solutions under pressure
• When the goals of each party are of moderate importance and collaboration isn’t worth the time required
Pe
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als
Relationship Goals
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s Collaborating• Personal goals and relationship
goals are of equal importance/value• Seeks win-win outcomes using
advanced skills and strategies • Want to find a solution that fully
satisfies needs and concerns of both people
• Involves time commitment in identifying concerns of each person and finding alternatives that meet both sets of needs
Pe
rso
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als
Relationship Goals
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s Collaborating – When to Use
• When both the issues at hand and the relationship are important
• When the parties are relatively equal in status and power – or the more equal or powerful party supports a win-win collaborative solution
• When the parties are inter-dependent upon one another to implement the solution
• When both sets of goals are too important to compromise
• You have enough time and are willing to take the time necessary
• When the quality of the decision is critical• To gain commitment and acceptance through
consensus
Pe
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Relationship Goals
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s The Five Conflict Handling Modes
Relationship Goals
Pe
rso
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als
Compromising
Controlling Collaborating
AccommodatingAvoiding
Source: Thomas Killmann
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Costs of Conflict Financial costs Educational costs: bleeds energy away
from instruction, can interfere with needed consistency
Human costs: stress, burnout, marital discord
Relationships: hurts relationships among people who have to work together
Societal costs: parents, families, schools divided; bad press for special education; missed opportunities
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s“Cost and Benefit”
Comparison of Dispute Resolution Approaches
Informal Negotiation
Resolution Session
IEP Facilitation
Mediation IDEA Complaint
Due Process
Private/Informal Private/Informal Private/Informal Private/Informal Public/Formal Public/Formal 2-3 days 15-30 days 12 Days 21 Days 60 Days 45 Days
$ ? $ ? $ ? $ ? $ ? $ ? Future Future Future Future Past Past
Voluntary Voluntary Voluntary Voluntary Involuntary Involuntary Win/Win Win/Win Win/Win Win/Win Win/Lose Win/Lose
Source: Wisconsin Special Education Mediation System
How much do you think each of these processes costs?
What do you include when you think about process costs?
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IDEA ‘04
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s Required Processes Under IDEA ‘04
Written State Complaint (assumed to be in regulations)
Mediation Resolution Sessions Due Process Hearings
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s Resolution Sessions615(f)(1)(B)
Within 15 days of DPHR notice, LEA must convene a meeting with: Parents; Relevant IEP team members; and An agency representative with decision-making
authority. May not include an LEA attorney unless parent’s
attorney is present. Meeting is for discussing the facts and
resolution of DPHR issues. Parties may agree, in writing, to waive such
meeting or to use mediation in lieu of the resolution session.
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sWritten Settlement
Agreement615(f)(1)(B)(iii-iv)
If resolution is reached to resolve the DPHR at a resolution session, the parties execute a legally binding agreement (written settlement agreement) that is: Signed by both the parents and a representative
of the agency; and Enforceable in any state court of competent
jurisdiction. If parties execute a written settlement
agreement, a party may void the agreement within three business days of the agreement’s execution.
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Mediation Under IDEA ‘04Conducted by a mediator who is: Qualified Trained in effective mediation
techniques Knowledgeable in laws and regulations Impartial Not employee of LEA, SEA or state
agency that is providing direct service to the child
No personal or professional conflict of interest
Random selection or both parties agree
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s Mediation Agreement615(e)(1), (2)(F)
Mediation is available to resolve any matter, even before requesting a due process hearing (DPH).
Mediation agreement must be in writing and signed by the parent and agency representative.
Agreement is legally binding and enforceable by any state court.
Mediation process is confidential and may NOT be used as evidence in subsequent legal action.
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State System Design &
Performance
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sDispute Resolution
Options
C
O
N
F
L
I
C
T
© WSEMS 2005
Least coercive
Most self-determination
Most coercive
Least self-determination
No No NeutralNeutral With a NeutralWith a Neutral
IEPIEPMeetingMeeting
IDEA IDEA ComplaintComplaint
Due Due ProcessProcess
ScheduledScheduledMeetingMeeting
Informal/Informal/formal formal
NegotiationNegotiation FacilitationFacilitation MediationMediation LitigationLitigation ArbitrationArbitration ExtremeExtreme
MediationMediationSessionSession
ResolutionResolutionSessionSession
ResolutionResolutionSessionSession
LawLawSuitSuit
SlanderSlander
HateHateMailMail
ViolenceViolence
TelephoneTelephoneCallCall
35
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s CADRE Continuum ofConflict Resolution Options
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sUse of Procedural Safeguards
2002-2003 – 50 States Due Process Hearings
12,889 requests 2,184 hearings held (17%)
Complaints Filed 5,715 filed 2,992 with findings (52%)
Mediations Held 6,790 held 4,722 with agreements (70%)
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s D i s p u t e R e s o l u t i o n A c t i v i t y ( 5 0 s t a t e s , 2 0 0 2 - 2 0 0 3 )
-
1 0
2 0
3 0
4 0
5 0
6 0
Eve
nts
Per
10K
Stu
dent
s
F o r m a l W r i t t e n C o m p l a i n t s F i l e d
M e d i a t i o n s H e l d D u e P r o c e s s H e a r i n g R e q u e s t s
In 2 s t a t e s , h e a r in g r e q u e s t r a t e s e x c e e d 6 0 p e r 1 0 , 0 0 0 S t u d e n t s in S p e c ia l E d u c a t io n
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sM e d ia t io n A g r e e m e n t s a s a P e r c e n t o f M e d ia t io n s H e ld ( 5 0 S t a t e s , 2 0 0 2 - 2 0 0 3 )
0 %
2 5 %
5 0 %
7 5 %
1 0 0 %
% A
gree
men
t
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Mediation
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The Mediation Process Setting the Stage
Prepare environment Explain expectations & process
Uninterrupted Time Invite each person to talk without
interruptions Participants describe problem and their
perception of the issues (initial expression and release of emotions around situation)
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The Mediation Process Identifying the Issues
Identify, clarify, summarize main issues Get agreement on issues
Discussing the Issues Listen for common ground, mediatable
issues, points of disagreement Encourage participants to talk to each other
(??)
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The Mediation Process Generation of Potential Solutions
Assist the brainstorming possible options for each discreet issue
Evaluate potential solutions
Agreement Building Narrow list of viable options “Reality Check” Assist in negotiation process Record agreement is appropriate
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s Mediation ProcessCaucus (Separate Meeting)
Purposeful, Confidential, Balanced Advantages
Exploring positions, interests and needs Save face Manage emotions Test solutions
Limitations Confidentiality issues Breaking direct communication Mediator becomes more the focal point
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Role of the Mediator Establishes rapport and trust Facilitates communication Elicits underlying interests Recognizes and shifts problematic
communication patterns Encourages brainstorming Supports the process of analyzing options Assists in agreement writing Provides content expertise (??)
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s Power Imbalances Inherent in Conflict
DR Processes can “level the playing field” Actual and Perceived Power may differ For Parents, On the face: less power/status and that
steps must be taken to make sure that doesn’t distort the processes (#s matter)
Cultural issues may exacerbate this – intimidation may be present whether intended or not
Perception: Many of the formal mechanisms are ways to “get the parent to go along”
Fair systems require well-facilitated processes and trained interveners (mediators, hearing officers, facilitators, etc.) who are able to control the power balance issues
Relationships well-built help overcome imbalance
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s Protocol: Removing Power Imbalances
When third party-neutral is present When a third party-neutral is not present –
NB/WISC has a document/ process guide Pre-, During and Post-IEP processes/ conditions
that can help reduced perceived power imbalances Emphasis on the technical processes in service to
the human aspects – subtle impact of dress… Risk of “Pre-IEP” actions: parents may not be
equipped/ supported to participate effectively Should the IEP itself be included in the Continuum?
Cartoon book on IEPs. Time and IEP – ironic power play by trying to
control…
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Mediation Models Single Mediator
Easier to Manage Logistically Mediator Expertise Mediator Control
Panel Mediation Reflects Community Strengthens Community
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Mediation Models Co-Mediation
Reflect Participants Involved Family/School Gender Age Ethnicity/Race
Training/Mentoring Model Two-is-better-than-one Modeling Cooperative Behavior Balancing Different Mediator Orientations,
Strategies, & Techniques
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Advantages of Mediation Privacy/Confidentiality Flexible, informal Addresses underlying issues, concerns
& priorities of participants Capacity for creative resolutions Future focused Relatively time efficient
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Advantages of Mediation Allows direct communication Process educates participants Win/win outcomes Potential to build, maintain & enhance
relationships A place for an apology More comprehensive Accessible to wide range of participants Higher satisfaction
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Critique of Mediation Mediator lacks power to compel
participation disclosure of information settlement
Imbalance of power may adversely affect outcome
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Critique of Mediation Compliance voluntary Enforceability issues Can be time consuming Standards of Practice not universal Due Process Safeguards ??
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Listening
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“Listening is probably the most cost effective element of a
conflict management system.”
Mary Rowe
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s Characteristics of Good Listening
Think of a time when someone listened to you.
What did he/she do that made you feel he/she was listening?
What was his/her attitude toward you?
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ListeningFollowing the thoughts and feelings of others to understand what they are saying from their perspective, frame of reference, or point of view.
Dignity and Respect
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The Chinese characters that make up the verb “to listen” tell us
something about this skill.
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s Listening Problem Solving
Sometimes speakers just need to be heard
Sometimes listening clears up confusion
Sometimes listening identifies a need for problem solving
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To listen a soul into disclosure and discovery is the greatest service one human can do for
another.
Quaker saying
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Reflective Listening The HEART of listening is:
EMPATHY, CARING & RESPECT Main rule:
KEEP THE FOCUS ON THE OTHER
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s The Three Basic Skill Clusters for Reflective Listening Are:
Attending Skills
Following Skills
Responding Skills
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Attending Skills: Posture Contact (distance, eyes, touch) Gestures Environment Interested Silence
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Following Skills Door-Openers Acknowledgement Responses Open-Ended Questions
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Responding Skills Reflecting Content Reflecting Feeling Reflecting Meaning
(Content linked with feeling) Summarizing
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s Certain Responses Have a High Risk of…
Derailing the conversation Taking the focus off the other Blocking the other from finding a solution Lowering the other’s self-esteem Distancing your self from the other Diminishing the other’s motivation
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High Risk ResponsesSending Solutions Ordering Threatening Moralizing Advising Logically
Arguing Questioning
Evaluating Judging Praising Diagnosing Name-Calling
Withdrawing Reassuring Diverting
Takes the focus off the other person
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s Listening is a disciplined skill
You can’t do two things at once if one of them is listening.
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Positions & Interests
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Positions & Interests
PositionSpecific solution proposed to resolve problem - the “WHAT”
Interest Underlying real need/desire that gives position its life (i.e., beliefs, expectations, values, fears, priorities, hopes, concerns) – the “WHY”
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sSample Positions:
“The target level for appropriate interactions in my classroom must remain at 50%.”
“We want an ASL interpreter in that English Lit class.”
“I demand an apology now!”
“Rob has a right to a full time instructional assistant next term”
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s Finding the Interests
Position: One party’s solution to the problem/ situation.Often a self-serving solution
Issue: Elements or subject matter of the problem.Elements at issue between the parties that must be negotiated in order to reach agreement.
Interest: Factors that motivate/ drive parties to reach agreement and take positions Interests underlie positions in that the parties’ positions are intended to meet and or address their interests (hopes, wants, needs, fears, concerns)
Adapted from Highnam, K. (2001). Interest-based negotiation, CSSEA 2001 Fall Conference and AGM. Surry B.C, Canada. CSSEA.
Stage 1
Stage 2
Stage 3
Stage 4
Position A Position B
Issues Issues
Interests and positive intentions
Interests and positive intentions
Options for agreement
Options for agreement
Common ground
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All behavior (including positional
behavior) is ultimately positively
intended, and directed at fulfilling some
need.
The Basic Assumption
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s Finding the Interests
Question, question, question…Question, question, question… "What makes that solution so important for
you?"
"What would you accomplish in getting what you want?"
"What if that did/didn't happen?”
“How will you be affected by…?”
“Imagine that you got ___________; what would
be taken care of?”
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Finding the Interests What need is the person taking this
position attempting to satisfy? What is motivating the person? What is the person trying to
accomplish? What is the person afraid will happen if
a demand is not fulfilled?
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s Summary: Interest-based Negotiation
Aims not to change the other person, but to change negotiation behavior
Separates the people from the problem Shifts from ”your position versus mine” to “you
and I versus the problem” Shifts from “position-taking” to “perspective-
taking” Holds that Interests are a truer measure of
negotiation goals than Positions. Involves a mutual exploration of interests to yield
more creative options.
Adapted from Highnam, K. (2001). Interest-based negotiation, CSSEA 2001 Fall Conference and AGM. Surry B.C, Canada. CSSEA.
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Case of Lisa Role Play Potentially insert a case study here
involving audience members who will role play, and then as a group, we will identify positions and brainstorm using what we’ve learned to ID positions and interests and to strategically deposition.
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Cultural Competence &
Diversity
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s Cultural Competence and Diversity
Some individuals do not welcome involvement of government
Some cultures defer to professionals Families might not understand
mainstream Western beliefs about "parent-educator partnerships."
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Understand the role of age, gender and other individual differences that affect or define status, relationships and socially acceptable behavior
Provide ongoing training and support for all mediators in diversity, cultural competence, flexibility
Cultural Competence and Diversity
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Ensure that interpreter training includes the critical element of translating in a neutral manner
Provide interpreters a dictionary of disability and dispute resolution terms.
Modify materials and processes to respond to individual circumstances
Cultural Competence and Diversity
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Determine what method of communication (e.g., in-person, face-to-face, etc.) is most appropriate
Be aware of personal biases and assumptions based on how a person dresses, speaks, acts, etc
Insist that mediators have no perceived and/or real conflicts of interest
Cultural Competence and Diversity
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Recognize that many people do not communicate in a linear fashion nor "stick to the subject at hand."
Avoid language or assumptions that perpetuate stereotypes.
Engage community leaders and cultural liaisons in outreach and model definition
Cultural Competence and Diversity
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Arrange the room and seat the participants in a manner appropriate to the participants and their relationships.
Permit joint and individual meetings as appropriate for saving face, venting, consultation with advisors
Cultural Competence and Diversity
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The Platinum Rule:
“Do unto others as they would have you do unto them.”
Tony Alessandra
Cultural Competence and Diversity
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Student Involvement
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Fundamental Value:
The student should be present and participate to the maximum extent possible in a mediation regarding the services they receive.
“Nothing about me without me.”
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s Advantages Related to Student Participation:
Vital opportunity for student to be understood Student’s preferences taken directly into account Student learns to articulate needs to service
providers Student empowerment Elevates civility of process Encourages positive, strength-based discussions Creates new relationships and linkages Ensures presence of key person in design and
implementation of effective agreement
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s Challenges Associated with Student Participation:
Competency to participate Disagreement between parents and
student Coercion and forced agreements Need for united front among adults Limits topics of discussion Potential for student to accept
unreasonable levels of responsibility
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Practice Considerations: Pre-Mediation Explorations Regarding
Student Ability Student’s ability to understand process Student’s maturity Student ability to conduct himself/herself
appropriately Student’s past involvement in IEP meetings Student’s interest in participating Other participants’ perspective on student’s
involvement Disagreements between students and
parents Educate student about the process
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Practice Considerations: During the Mediation Session
Engage student in ground rules, discussion and agreement
Realistically address confidentiality concerns
Invite opening statement from student Address student/parent disagreements Reality test and contingency plan Arrange follow-up
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s Range of Participation Possibilities:
Student written or recorded statement Appointment of designated advocate Student attend but not at table Student participates for portion of
meeting Attendance of safe person and absence
of threatening person
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s Placeholder: Conflict and particular audience
E.g., tailor interests groups have to this content
THIS SLIDE SHOULD BE DEVELOPED BY REPRESENTATIVES FROM TRAINING RECIPIENT GROUP DETAILING THE RELEVANCE OF MATERIALS TO THE ROLE OF GROUP MEMBERS.
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Resources
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Resources CADRE publications – probably not the list in
the presentation Describe the site (URL) that shows you:
Online resources Dialogue guide ListServ
What individuals can access and do. What organizations can access and do. Multiple site feature so that the partnership is
featured among the various participating organizations.
Customized access to particular state resources… how to do this.
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CADRE Publications “Beyond Mediation: Strategies for Appropriate Early
Dispute Resolution in Special Education” “Keys to Access: Encouraging the Use of Mediation
by Families from Diverse Backgrounds” “Families and Schools: Resolving Disputes Through
Mediation” (Case Studies) “Special Education Mediation: A Guide for Parents” “Considering Mediation for Special Education
Disputes: A School Administrator’s Perspective” “Educating Our Children Together: A Sourcebook for
Effective Family-School-Community Partnerships” (CD)
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CADRE Publications “The Involvement of Students in Their
Special Education Mediations” “Parents and Educators Working Toward
Mutual Solutions” (Video) “Facilitated IEP Meetings: An Emerging
Practice” “Considerations for Mediating with People
Who Are Culturally Deaf” “The Role of Attorneys in Special Education
Mediation” “Steps to Success: Communicating with
Your Child’s School”
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s What’s clearly still needed…
Work on Power Imbalance Connecting Conflict resolution and
roles: this is the tailoring to specific group (needs detail)
Slide on resources –started Evaluation: Need to measure both
process and content of the evaluation and How useful to participants (use, relevance, quality) – any time used, CADRE and Partnership get eval data
