Arbitration as an Alternative Dispute Resolution Procedure

The need for legal representation in securing an appropriate educational program for a child with disabilities has been both long standing and of increasing concern as IDEA’s procedural safeguards became more complex. While it is unclear whether the amount of special education litigation has decreased, and there are differences of opinion about the effectiveness of mediation, there is widespread agreement that formal due process hearings have far too often become procedural battles, more than a forum for determining an appropriate education for a child with a disability. Even then, the procedural hurdles established by Supreme Court decisions – concerning criteria for awarding attorney’s fees, allocation of the burden of proof in due process hearings, and recovery of fees for experts – have put due process out of the reach of most parents. Maybe it’s time to offer a radically different voluntary alternative – a procedure that focuses solely on the child’s educational program, does not require attorneys, invokes true educational expertise and can’t be litigated indefinitely. Based on the tribunal concept widely used in European legal systems, this hearing would focus exclusively on substantive concerns – the child’s proposed educational program – not on legal procedures. Attorneys would be allowed only if both parties were represented. Moreover, responsibility for developing the record (evidence) would rest with the tribunal (not the attorneys), which would have complete discretion in establishing the hearing schedule, admitting evidence, seeking additional evidence, calling additional witnesses and procuring any information needed to reach its decision. Tribunal members would have training and expertise in education and disabilities. And while use of this procedure would be strictly voluntary, once initiated, the tribunal’s decision could not be appealed.