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Across the Table: The Need for Neutrals in Special Education

Friday, September 13, 2019

Unique course teaches law students to resolve disputes with school programs

By Sarah Hazan
USC Gould Lecturer in Law Richard Erhard (Photo courtesy of Richard Erhard)
In special education, the battleground between parents and their child’s school district can be the table between their advocates. Demand for due process hearings is escalating rapidly, and the meetings themselves can be time-consuming and emotionally draining as both sides volley their demands and defenses. But according to USC Gould School of Law lecturer Richard Erhard, there is a better way to handle these disputes — and he’s teaching his students how.
 
In his course, Special Education Dispute Resolution, he reflects on the need for neutrality. As parents and school districts alike seek alternative ways to resolve increasing complaints, trained professionals are essential in moving the conversation and programming forward.
 
“One of the things I speak to in my class is the continuum of dispute resolution – from ignoring the issue to…negotiation to mediation to arbitration to litigation,” Erhard said. “This is the only program that I’m aware of at a law school that is focusing on dispute resolution in special education issues. We are training neutrals here at USC Gould, not just advocates, which is a huge difference.”
 
In special education, legal conversations between parents and school districts are a constant. Parents must engage with their districts in order to establish necessary programming for their children with special needs. Often faced with insufficient resources and oversight, special education programs may be assigned to the most junior school staff members, and the meetings can be tense. 
 
Nearly 16 years ago, Erhard was representing the Santa Ana school district when he found himself across the table from parents of 3-year-old autistic triplets and their legal counsel. Erhard was surprised when this lawyer took a measured approach to the discussion. He still looks back on that meeting’s success as a game-changer in his conflict resolution experience.  
 
Erhard spent his career leading special education efforts and establishing essential programs for students of all ages. “My focus as an educator is always on the individual child,” he said. 
 
From teaching primary school special education in New Mexico to working as Assistant Superintendent of Student Services for San Diego’s Coronado Unified School District, Erhard saw his own dispute resolution – and legal – education grow in tandem with the services he implemented in schools.
 
“As I moved through administration and developed special education programs, I realized that if you didn’t have programs that were legally defensible, they weren’t worth the paper they were written on,” Erhard said.
 
Realizing this need, he started taking dispute resolution courses wherever he could find them, trying to enact progressive programming at the administrative level for his schools and their districts with the law in mind. 
 
In his 30 years of experience, he witnessed litigation ratchet up, contributing to more frustration and expense, and traditional resolution methods become inadequate. “There’s a better way to deal with dispute,” he said. He found that the earlier mediation was introduced, the better the outcome for the child and parents. 
 
“There are people who are professional advocates, who may be attorneys or not, working with parents to help them get through the process of negotiating with  their school district,” Erhard said. In contrast, “I am not an advocate, I am a neutral.” And as a neutral, he helps to build relationships and resolutions between both parties.
 
When parents bring a lawyer and a list of expectations to the table, mediators as neutrals must find a way to convey realistic outcomes centered on the child as the beneficiary. And training is key to navigating these conversations successfully.
Erhard with LLM in ADR student Kristin Douglas at commencement (left photo) and with the USC Trojan marching band
In his course, Erhard explores the legal underpinnings necessary to be impactful across education programming and mediation. He requires his students to gain an understanding of the major legal concepts involved in special education law. With the Individuals with Disabilities Education Act as the backdrop, he also teaches precedent-setting caselaw, some of which reverberates all the way up to the U.S. Supreme Court. 
 
Within this environment, Erhard helps his students develop the “mediator mindset” through simulations, role play and writing exercises. This mindset can then be employed across the field, from facilitating an Individualized Education Program, conducting a resolution meeting or mediation, convening neutral fact finding, or developing a dispute resolution program for a district or corporate client. These skills, coupled with legal knowledge in the field, allow his students to become “complete mediators” who can quickly interpret positions and interests and move with ease among facilitative, transformative and evaluative modalities based on the disputants’ needs. 
 
Despite the need for neutrals within special education, there is still a lack of awareness of the mediation-focused approach to resolution. To empower his students—enrolled in USC Gould’s degree and certificate programs in Alternative Dispute Resolution—and benefit the field, Erhard works within his vast network and with his students after they complete his course to help them engage further with special education administration, advocacy and more to drive attention and resources within this underserved field. The students also work one-on-one with a career services adviser at USC Gould to identify career opportunities.
 
According to Erhard, everyone involved in special education  can benefit from mediation training, including “special education teachers, general education teachers, advocates, school administrators at any level and parents. Most people involved do not have a special education background and need the professional development and knowledge in the field to be effective.”
 
It was this training that steered his meeting with the triplets’ parents and legal representative to a successful conclusion — and he hopes more families similarly benefit from special education mediation. “We found there were two voices of reason at the table, able to align both sides with the needs of the child,” he said. “We were both neutral, and it made all the difference.”
 
Professor Richard Erhard teaches Special Education Dispute Resolution (LAW 832, 2 units) in the Alternative Dispute Resolution Program at the USC Gould School of Law.  The neutral he met 16 years ago across the table is Professor Richard Peterson, who also teaches ADR at USC Gould and serves currently as the Director of the ADR Program.

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