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What is the Big IDEA for Special Education, You Might Ask.

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I am a big fan of public education. From elementary school through college (Go Bruins!), I went to public school. My children did too. This being the month in which Freemasons promote public schools (I have been a Mason for 27 years), I thought I would write about another aspect of public education, under a federal law known as IDEA.

IDEA is the “Individuals with Disabilities Education Act” (20 U.S.C. § 1400 et seq.) I came into contact with IDEA many years ago when I mediated for three years for the Special Education Division of the California Office of Administrative Hearings (OAH).  At the time, OAH had just become responsible for managing IDEA’s dispute resolution requirements in California. OAH has jurisdiction over the conflicts that arise between parents of special needs children and school districts.

Generally, in these conflicts, parents challenge school districts because they believe their special needs children are not receiving the kinds of services and opportunities necessary for their children to learn or learn well. The tension in these disputes arises because the parents generally want more; and school districts have limited funds and resources which must be spread among the many special needs children in the school district.

This will not be an exhaustive treatise on the law of special education, but there are a few concepts that are interesting.

To focus the discussion, one of the purposes of IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A).

“A free appropriate public education,” known as FAPE, “means special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with [an] individualized education program….” 20 U.S.C. § 1401(9).

In order to provide FAPE to children with special needs, schools are required to evaluate the child and develop, review and revise an Individualized Education Program (known as an IEP) on an annual basis at an IEP meeting with parents, teachers, a school district representative, and a school psychologist or other specialist(s).

Schools are also required to place the student in the “least restrictive environment” which means that children with disabilities are to be educated with children who are nondisabled to the extent possible, with supplementary aids and services if appropriate, and that special classes, separate schooling or other situations for disabled children should be utilized only if regular class placement does not work well for the child’s education.

When the parents disagree with the IEP – and parents do not have to agree with what the school thinks is FAPE – they are entitled under IDEA to challenge the IEP. Parents can bring advocates or lawyers with them to any IEP meeting; they can “reopen” an IEP whenever they believe it is warranted; they can reconvene a “case study evaluation” (CSE) which is the initial step in determining whether a child is eligible for special education. In addition, they can pursue informal negotiation at a resolution meeting and/or in mediation, and/or they can file a complaint which ultimately may be heard and decided at a contested “due process hearing” before an Administrative Law Judge. Subsequent reviews are available as well.

I have omitted a lot of detail, but the idea is always that, under IDEA, the child should receive appropriate help to learn in the best way he or she can so as to have the best free and appropriate public education possible under the circumstances.

From my experience mediating special education disputes (which I no longer do incidentally, just real estate and business disputes), I can say that school districts earnestly believe that they care about the special education children they serve; they have a great responsibility to help disabled children; they have a big heart; and they are nevertheless subject to the limitations of funding and resources. I can also tell you that parents disagree, sometimes vigorously, and therefore are proactive, diligent and assertive in protecting the rights of their disabled children.

In mediation and throughout the Special Education process, attorneys and advocates are important resources; they will remind parents that there are other options available, which may come up in negotiation: alternative assessments of the child, Special Education Itinerant Teachers (SEITs) who work with children to help them integrate into mainstream classrooms and to reach their individual goals; one on one aides; classroom pull outs; accommodations for classrooms and for testing; buses and other forms of transportation to and from school; etc.

IDEA is complicated and although mediators do not give legal advice, we can suggest that consultation with and guidance from Special Education advocates and attorneys can be helpful if a child is or should be educated specially.

***
David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com . (Also, he sends his thanks to his cousin, Miriam, who had some input on this piece.)

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

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Shepping Nachas and Making Change

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It was 20 years ago, with the help of a few parents and the rabbis of Temple Beth Hillel, that I started Cub Scout Pack 311 in Valley Village, California. The Cub Scout Pack is still thriving.

I tell you this because, last night, I had the pleasure of attending its annual “Blue and Gold Banquet” for the scouts and their parents.

Although there just as an observer it gave me great pleasure and pride to attend. For those who know Yiddish, I was “shepping nachas.” [You can look it up on the internet if you don’t know what this means.]

Here’s why:

20 years ago, the Boy Scouts of America excluded gay or lesbian adults from being registered leaders, as BSA contended that they “were not role models for youth.”

That concept was so offensive to me and to others in the Reform Jewish Movement that we felt we had to do something about it.

Fortunately, Temple Beth Hillel had the chutzpah to help. Other Reform synagogues were busy ejecting their scout units over this controversy. But we, at TBH, decided to voice our objections from within Scouting.

Thus, we chose to become an agent for change by forming an inclusive Scouting program that was a safe haven for all while using Scouting for its character development program for our children’s benefit.

Consequently, Pack 311 came into existence in 1998 and became an immediate magnet for like minded individuals and families who joined in droves.

To make a long story short, BSA finally came to its senses a few years ago and finally abandoned its gay exclusionary policy. Many of us felt, consequently, that we had made change.

In the interim, Cub Pack 311 grew to become one of the most successful, energetic, inclusive, and well supported groups in the Eastern San Fernando Valley.

And it still is, as I witnessed last evening at its 20th Annual Blue and Gold Banquet, the attendance of which (I am guessing) must have exceeded 200 people.

And this made me proud to see the product of all that energy I invested. It reminded me of a Warren Buffet quote: “Someone is sitting in the shade today because someone planted a tree a long time ago.”

But wait! There’s more.

Last evening I saw that Cub Scouting has become even more inclusive.

Yes, there were girl Cub Scouts in attendance in their blue scout uniforms. We even had a young woman at our table who is newly enrolled in a BSA Troop and who was proudly wearing her new khaki uniform. (She is the daughter of one of the other leaders who was seated with us.)

It was so marvelous to see this program become so boldly and proudly inclusive for the 21st Century and so wonderful to see it at home and so well situated at Temple Beth Hillel.

But it isn’t over yet.

We still need to think about including others that are still rejected by BSA, even those who lack a belief in any gods.

It is only right.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California who doesn’t always write about mediation. His website is at http://karpmediation.com and includes a summary of his volunteerism in Scouting at (see, https://www.karpmediation.com/volunteerism/ )

*This post is marked as an advertisement so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Allow Enough Time for Decisions and Revisions

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As an English major in college, I discovered an affinity for the poetry of T. S. Eliot. Perhaps my favorite is The Love Song of J. Alfred Prufrock. There are a few catchy phrases in it, some about time:

Time for you and time for me,
And time yet for a hundred indecisions,
And for a hundred visions and revisions

Also,

In a minute there is time
For decisions and revisions which a minute will reverse.

Why do I tell you this?

It’s because people are always in such a rush in mediation and yet there needs to be time for “decisions and revisions.”

Mediation is a process, not a race, although people watch the clock all the time.

Which reminds me of another poem, not by Eliot, but by Andrew Marvell, called To His Coy Mistress in which Marvell writes:

But at my back I always hear
Time’s wingèd chariot hurrying near

There is of course a tension between allowing enough time for the magic of mediation to work, on the one hand, and managing the cost of doing so, on the other hand.

Of course, attorney fees and mediator fees must be considered. Yet, there is more to mediation than getting it over quickly. There are people issues at stake which must be managed in order to find a palatable solution to the problems they face. Moreover, whatever is spent on the mediation must be compared to the cost, going forward with litigation or arbitration, if the matter does not settle at or as a result of mediation.

I, too, have dabbled in poetry. Here is an example which by its own terms shows why allowing enough time is important. These are emotional stages, or some of them, through which people may pass in order for them to realize that compromise and settlement may be best for them after all rather than fighting it out in court or arbitration.

My poem is called Alliterative Mediation, and frankly it is just a list of words. Nevertheless, here it is:

Rage
Rancor
Rebellion
Resistance
Reflection
Revelation
Resignation
Responsiveness
Repair
Relief

As I said, these represent emotional stages, or some of them, within the mediation process.

Sometimes I am asked by a disputant how long will the mediation take. To accomplish the transformation that takes place in mediation, I answer, honestly, that I don’t know. It takes the time it takes.

Sometimes, I analogize to another situation: childbirth:  Usually, we know when labor starts. We don’t know how long it will take. At some point, it is painful as it progresses. But then it’s over and everyone rejoices. This can be what happens in mediation too.

So, allow enough time for decisions and revisions, and for the relief that comes at the end of a mediation that yields an outcome that could not be rushed.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

*This post is marked as “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

What the Wall Negotiation Shows Us

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Here are some “take-aways” that, as a mediator, I see from the wall negotiation in Washington, D.C. :

  • Hard ball tactics don’t always work.
  • You don’t always get what you want.
  • Compromise is difficult.
  • You have to know what the other side needs to make a deal.
  • The other side has to know what you must have to make a deal.
  • You have to help each other see the positive in what is offered.
  • Both sides have to be flexible.
  • Both sides have to give up something to get something.
  • What you want is not always what you get.
  • To some degree, you have to help the other side to “save face.”
  • The outcome may be barely tolerable for both sides.
  • The “Monday Night Quarterbacks” in your life will always criticize.
  • Sometimes not compromising leads to worse outcomes than compromising.
  • A Pyrrhic victory is just that.
  • It’s not over until it’s over.
  • No one is really ever that happy at the end.
  • But both sides may nevertheless be satisfied that they have done their best.
  • When you have a signed deal you can move on to other things.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

*This post is marked as “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Please Share Your Mediation Brief.

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It has been my experience that the legal and negotiating positions of the parties are not taken seriously enough if the attorneys don’t share their mediation briefs with the other side.

As neutrals, we mediators are not advocates for any side. On the other hand, attorneys for the disputants are the best advocates of their client’s cause.

The attorney’s vigorous and well reasoned (but not insulting) advocacy makes a difference and his or her messages can be diluted or less effective if and when the mediator is asked to substitute in the carrying of those messages back and forth.

Particularly in those mediations where the parties and counsel choose not to meet face to face, which is most of the time in this legal community, the exchange of mediation briefs might be the next best thing to show the other side the parties’ justification for their views and provide an understanding of how they will negotiate.

In a recent mediation, the parties essentially ended where they started with minimal, if any, movement toward common ground. Afterwards, one lawyer couldn’t understand why the other side was so intransigent.

I quipped, “it’s because neither side took the other side seriously and that’s because the mediation briefs were not exchanged” or words to that effect.

The lawyer was amazed.  I added, “You’re a good, persuasive writer, why wouldn’t you exchange with the other side?

Her response: “Well, they wouldn’t exchange with me!”

Her response, while common because of a natural desire for reciprocity, overlooked the most important point:

Sharing the mediation brief does not mean you’re giving a unilateral benefit to the other side without benefit to your own; rather it means you’re giving a benefit to your own client because the other side may thus understand why you believe your case is well founded in fact, law and reason, and why, therefore, your offers and counteroffers make sense and are justified based upon your view of the case.

Sharing briefs allows the other side to adapt to your view of the dispute, even if they disagree, so that more responsive counter-offers might be made.

So, share your mediation brief. Hopefully the other side will do so, too; if not, do it anyway.  It doesn’t hurt and it in fact helps your client.

It also helps the mediator who is managing the conversation, the negotiation, and ultimately the potential settlement you are trying to achieve.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

*This post is marked as “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Discretionary Recovery of Mediator Fees Incurred in Connection with a Voluntary Pre-trial Mediation

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In Berkeley Cement, Inc. v. Regents of the University of California (Court of Appeal, Fifth District, F073455, Jan. 7, 2019), ___ Cal.App.5th ___, appellant challenged the award of mediator fees incurred before trial, arguing the costs were not “reasonably necessary to the conduct of the litigation,” but were “merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).)  It contended mediation was voluntary, not court-ordered, and therefore the fees for mediation were not mandatory or necessary to the litigation. The Court of Appeal disagreed.

The Berkeley court looked to the decision in Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, which allowed recovery of mediator fees from a court-ordered mediation. There the court found that “‘mediation is fundamental to the conduct of litigation as it encourages the parties to settle their disputes before trial and exposes parties who fail to agree to a reasonable settlement proposal to the risk of a discretionary court determination that they should pay their opponent’s share of the failed mediation.’ (Gibson, supra, 49 Cal.App.4th at p. 1209.) The Gibson court rejected the defendants’ argument that, because the aim of mediation was to avoid trial, mediation costs could not be construed to be reasonably necessary to the conduct of the litigation. (Id. at p. 1209.)” Berkeley, supra, typed opn. at p. 36.

The Berkeley court extended the above reasoning to voluntary mediations. The court held:

We conclude mediation fees incurred for mediation that was not ordered by the court are not categorically nonrecoverable as ‘not reasonably necessary to the conduct of litigation.’ The question whether mediation fees should be awarded as costs in a particular matter must be determined based on the facts and circumstances of the particular action. Berkeley does not contend the trial court erred in assessing the facts and circumstances of this case, when it made its determination that the mediation fees should be awarded. Consequently, Berkeley has not established any reversible error in the trial court’s award of mediation fees as costs.  Berkeley, supra, typed opn. at p. 37.

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David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

*This post is marked as “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Overcoming Misunderstandings: An Argument for Speaking to One Another

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Louis D. Brandeis was quoted as saying “Nine-tenths of the serious controversies which arise in life result from misunderstanding.” Kolatch, Alfred J. Great Jewish Quotations. New York: Jonathan David Publishers, Inc. 1996, at p. 65.

In nearly every mediation, misunderstandings surface at some point. If so, hopefully, we mediators can deal with them. But sometimes it takes awhile.

Here is the usual pattern of events:

First come the mediation briefs, usually not shared, but full of a version of the facts – as the parties and/or their lawyers see them – and the legal arguments that support each side’s position.

Then come the private caucuses as the mediation begins – hardly ever, these days, do the disputants permit a joint session at the outset of mediation – in which the parties and their lawyers have their say, oftentimes repeating what is in the mediation brief.

Then come the mediator’s questions, in private caucuses, which sometimes test the facts or point out inconsistencies as the mediator goes back and forth between the two or more conference rooms.

Then perhaps the deeper questions begin, to bring out the underlying reasons why people see their predicament a certain way, to learn the motivations of the parties, to ascertain what is really at the heart of the matter, and even to lead to the discussion of how to resolve their difficulties.

In many instances, as mediator, I learn that there have been serious misunderstandings, just as Justice Brandeis observed.

But how to overcome those misunderstandings?

Many times, the parties in a mediation have such hard feelings about the other side that they refuse, in the first instance, to face one another let alone speak to one another. Instead, they have the mediator go back and forth, from room to room, to explain and communicate what the mediator is being told.

This sort of communication, however, is filtered through a third party, through the mediator, who, hard as he or she may try, may not be able to bring the disputants’ earnest or nonverbal communications, including those inflections or gestures or facial expressions, that really tell the story. Consequently, something inevitably can get lost in translation.

Sometimes, the mediator can get the lawyers to talk to each other, but still without the disputants themselves. Still we have filtered communication, but now with advocacy thrown in, which still does not usually get to the heart of the matter.

(It should be said, however, that there are capable attorneys who can effectively communicate the real truths – in Yiddish, the emes – of what their clients are dealing with).

But sometimes, we mediators can get the parties to talk to each other. Here is where, most often, the misunderstandings can be corrected, where people can hear, and if they are truly listening, can understand each other better.

Occasionally, the parties will talk to each other in the presence of the mediator and their attorneys.

And sometimes, without the attorneys.

And sometimes, without even the mediator.

I have seen all of these variations at times.

Certainly, one advantage is that these conversations are “off the record:” mediation communications are private, confidential and inadmissible in nearly all court or other adjudicative proceedings. They can be candid, honest, and deeply personal.

They might even include an apology, although rare, which is oh so powerful.

Consequently, with these heart to heart direct communications, amazing progress can be made. Sometimes, with the misunderstandings alleviated, the dispute can thus resolve and the parties’ circumstances or relationships can improve as well.

Ultimately, that can be the most satisfying situation in any mediation.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

*This post is marked as “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

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